The Green case involved a prisoner (convicted as Craig Hudson for his part in the torture and murder of his wife and of perverting the course of justice), who in prison changed name to Kimberley Green. It was not about single-sex services, as Green was held in a men’s prison, but the question of whether Green, who had a male appearance and genitalia, was discriminated against by being denied tights, a wig, prosthetic breasts and vaginas (the prison governor argued that these items are a security risk), as well as having difficulty in obtaining other items such as concealer make-up, sanitary towels, hair-removal products and outsize women’s shoes and clothing.
“He is in a male prison and until there is a gender-recognition certificate, he remains male.”
The judgment considered whether in a “gender reassignment” discrimination case the appropriate comparator was a person of the same sex or the opposite sex. Comparators are frequently used in discrimination cases as a means to test whether a person was treated less favourably than a similar person without the same protected characteristic. Judge Richardson found in the case of Green that the appropriate comparator was a man who was not transitioning or transitioned:
“He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.”HHJ Richardson
Law Professor Alex Sharpe notes in a Modern Law Review article:
“Thus, if a trans woman brought a discrimination claim on the basis of exclusion from a women-only bathroom or domestic violence refuge, her experience would be compared to that of a non-trans man. Obviously, and even applying the ‘proportionality’ test, a non-trans man would have been excluded. The conclusion that must follow is that there has been no discrimination.”Alex Sharpe