Resisting violations of women-only spaces
The chair of Sex Matters’ board, barrister Naomi Cunningham, was asked to speak at a conference in Edinburgh on Tuesday 5th December to celebrate the first anniversary of the opening of Beira’s Place.
Beira’s Place, based in Edinburgh but covering the whole Lothian region, is a trauma-informed service for women survivors of sexual abuse. It was founded and funded by JK Rowling, who saw the need for a women-only service in an area where similar services have all become mixed-sex. Set up by women, for women, Beira’s Place promises that if you contact the service:
“The first person you speak to will be a woman, any support you receive will be from a woman and you can be guaranteed that when you visit our centre everyone in the building will be women.”
This is the speech that Naomi gave.
I’ve been asked to talk about the legal avenues we have already taken, and what more we can do in the future.
For me, this has been an exercise in trying to broaden my view. I’m a lawyer, so I’m at risk of being like someone whose only tool is a hammer, seeing every problem as a nail. And I’ve always been a specialist discrimination lawyer: so my temptation is not just to think litigation must be the solution to every problem, but also to analyse every legal problem as a problem about discrimination law.
As an antidote to that, I want to start with a few remarks about the wider context. Then I’ll do a quick primer on how the Equality Act works, and particularly how it provides for single-sex spaces. Then a survey of the legal avenues that have been tried so far to protect women-only spaces. Finally a look at what else we might try in future.
The jigsaw
This is a campaign that has many different aspects, all interrelated. Court decisions aren’t made in a vacuum: judges read the papers and talk to their friends and relatives. Some even keep an eye on Twitter. Court decisions are made against a background of policy work, research, political lobbying and media engagement.
Taylor v Jaguar Landrover makes a good case study. That’s the case Robin Moira White has been touting as a “landmark” judgment establishing that non-binary identities are protected under the Equality Act. It’s nothing of the sort – it’s a first-instance judgment of an employment tribunal, with no weight as precedent at all. But it makes an eye-opening read. There are patches of purple prose in which the judge compares Robin Moira White and Taylor to Rosa Parks as people who have “made a difference”.
That doesn’t come from nowhere: it took a lot of patient campaigning to create an environment in which an employment judge could write in those terms about a man who wanted to be affirmed in cross-dressing at work. The first-instance judgment in Forstater is another example. The judge found that the everyday, majority belief that sex is real and sometimes matters was not worthy of respect in a democratic society. That was about as sensible as holding that a belief in gravity is not worthy of respect in a democratic society – it was genuinely wild. Many people espouse such counterfactual but fashionable beliefs in order to position themselves as sensitive, forward-thinking sorts.
So litigation strategy can only ever be part of the picture: if judges are to give women’s needs and rights equal weight when there are fights in court about claims for trans inclusion, judges and advocates will need to have been familiarised with the idea that those claims engage women’s rights. And that women are human beings with rights of our own. Even – I know this is radical – that women’s human rights count for as much as men’s.
That familiarisation has to be done through media, policy and campaigning work if the legal decisions are to come out right.
We’re starting from a dismayingly low base with lawyers. I know lots of lawyers who are broadly sympathetic to our aims, but who seem to have little grasp of the practical realities of life in schools, prisons, women’s refuges, even public toilets or the toilets in a nightclub. One of the biggest problems we are up against with lawyers is a terror of “bright line rules” or “blanket prohibitions”. Lots of lawyers – including some who think of themselves as gender-critical – remain committed to “case by case” decision-making when it comes to excluding men from women’s spaces. Many imagine there is some special category of trans-identifying men who have tried so hard to be women that everyone else should be compelled to pretend that that’s what they are.
“Case by case” sounds lovely. Nuanced, moderate and fact-sensitive. What’s not to like? But as Karen Ingala Smith demonstrates in her book Defending Women’s Spaces, it depends on individual risk assessment – and that misses the point in two ways. The first is just that it’s impossible to do it properly: you can’t predict in advance which men are going to be violent or abusive, and most of those who’ve been violent or abusive in the past don’t have a conviction to show for it.
But the second way that “case by case” misses the point is even more fundamental: it wouldn’t help even if you could do risk assessment accurately. Because traumatised women may be re-traumatised by the presence of any man, however carefully risk-assessed. And because the need for single-sex spaces isn’t just about trauma and safety anyway: it’s about privacy and dignity and the ability of women to maintain our own boundaries.
The law knows that. The single-sex exceptions are drafted in a way that recognises that this is about comfort, privacy and social norms, not just safety. It’s perfectly lawful to run a women-only yoga class. It’s perfectly lawful to exclude all men from it, just because the women prefer to practise yoga with no men present. There’s no need to prove that the presence of men will put the women at risk to justify that: it’s enough that the service if only provided jointly would be less effective, and that it’s a proportionate means of achieving a legitimate aim to provide it separately.
But because of the success of the policy, lobbying and media work done on the other side, judges don’t reliably know that. I was junior counsel in AEA v EHRC. That was a judicial review of the Equality and Human Rights Commission’s Code of Practice which said people should normally be admitted to the facilities matching their gender identity, and that decisions to exclude could only be made on a case-by-case basis. The judge said our argument that trans-identifying men without gender-recognition certificates could always be excluded from a single-sex service for women was “an obvious absurdity”. He was obviously wrong. But he wasn’t stupid: this was an undoubtedly clever High Court judge with a successful career as a commercial barrister behind him. It’s a striking testament to the success of the years of campaigning done by Press for Change, Gendered Intelligence, Stonewall and others that a clever, sophisticated High Court judge could get the law so badly wrong.
And of course litigation strategy is only one part of legal strategy: sometimes what litigation does is show us that the law is bad and we need to campaign to change it – for example the judgment of the Inner House of the Court of Session in For Women Scotland, underlining the need for the Sex Matters amendment to the Equality Act, to establish that sex just means sex. That’s not a magic bullet – it won’t solve all the problems. But deeming some men and women to have become the opposite sex for legal purposes creates a lot of anomalies in the Equality Act, and it will remove those. For single-sex spaces, it will make justifying excluding men much simpler and less daunting for service providers.
Equality Act 101
Women-only spaces are lawful because of exceptions to the prohibitions against sex discrimination in the Equality Act. So I want to do a quick primer on how discrimination law works.
The Equality Act defines protected characteristics: sex, race, gender reassignment, sexual orientation, religion/belief etc. Note that not every bad reason for treating someone differently is a protected characteristic: it’s a defined list. That bit is just definitions: it doesn’t say anyone must or mustn’t do anything. It’s like a painter putting together a palette for use later.
Next the Act defines various kinds of discrimination: direct, indirect, victimisation, harassment. The important ones for my purposes are direct and indirect. Direct discrimination is treating someone less favourably because of a protected characteristic. That’s the paradigm case of discrimination. You don’t get the job or the promotion because you’re a woman, or black, or gay. You can’t join this club because it’s for men only.
Indirect discrimination is when you apply the same rule to everyone, but it affects people differently, and you don’t have a good enough reason for it. Minimum height requirement for a job is the usual example. It will rarely be justifiable – but occasionally might be, for example for a manual job where reach is crucial, or for access to a fairground ride on safety grounds.
This is still just definitions. These provisions define discrimination: they don’t do anything to prohibit it.
Then parts 3–7 do the actual work of the Act, making it unlawful to discriminate in various specific contexts:
- part 3 – services and public functions
- part 4 – premises
- part 5 – work
- part 6 – education
- part 7 – associations
And then there’s a complicated scheme of exceptions whose job it is to make sure that in the situations in which discrimination is justifiable or necessary, it’s still lawful. There are lots of those, and they operate differently for the different protected characteristics. Those differences reflect the different kinds of things the protected characteristics are: age, sex and disability are real, material facts about people that have real-world consequences. Race is a fuzzy-edged concept, and at least to some degree socially constructed. Religion or belief is about mental states, and mostly no-one else’s business at all. And so on. So the exceptions look very different. There are very few indeed for race, because race is almost always a bad reason to treat people differently. Not surprisingly, there are loads of exceptions for sex.
An important point to note about all these exceptions is that they are permissive, not mandatory: they make single-sex spaces and services lawful, but they don’t make it compulsory to provide them. They were included in the 1975 Sex Discrimination Act not to make something happen that wasn’t already happening, but to make sure the new law didn’t accidentally prohibit things that were widespread and everyone accepted as necessary.
These things used to be commonplace – but under pressure from transactivists, as we know, genuinely single-sex spaces are becoming rare.
Much of the pressure has taken the form of a misinformation campaign. Stonewall and others insist that excluding trans-identifying men from women’s spaces is discrimination on grounds of gender reassignment, and unlawful. This is wrong, and obviously so. If you exclude a trans-identifying man from your women-only yoga class, the reason you’re excluding him is his sex, not the fact that he identifies as the opposite sex. But trans people have been taught to be outraged – and to believe themselves victims of unlawful discrimination – if excluded from facilities or services provided for the opposite sex.
The story so far
There’s surprisingly little case law on the subject of single-sex spaces: a handful of first-instance judgments that have no weight as precedent, and a couple of High Court judgments.
Brooke: Halifax pub case 2014 was a first-instance county-court judgment, where a trans-identifying man was awarded damages and a declaration of discrimination after having been told not to use the ladies’ in a pub. The publican wasn’t represented or present in court, so there was no argument or defence.
Taylor v Jaguar Landrover 2020 was a workplace discrimination claim, brought by a trans-identifying man. The tribunal seems to have proceeded on the assumption that he had an automatic right to use whichever facilities he preferred, and the claim was weakly defended.
V v Sheffield Teaching Hospitals NHS Trust 2022 was another workplace discrimination case in which the employer had unquestioningly capitulated to the demands of a trans-identifying man to use the women’s facilities, and treated any objections by female staff as indicating a training need.
Anecdotally, I have the sense that trans-identifying men are regularly pushing the boundaries of women-only services and spaces, threatening legal action, then either settling or folding: cases aren’t coming to court. I’ll come back to this: I think it’s a tactic we need to steal.
So far as I’m aware, to date there’s been only one positive attempt in court to establish that women are sometimes entitled to single-sex spaces, namely FDJ v SoS for Justice in 2021.
The background to FDJ is a much earlier case, B v SoS for Justice 2009. The claimant was a man called Mark or Karen Jones. He was in prison for manslaughter, followed by a terrifying attempted rape committed when he was out of prison on licence. Jones said he wanted gender-reassignment surgery. The National Health Service wouldn’t approve surgery until Jones had done the thing called “living as a woman” for two years, which (it was agreed) he couldn’t do in a men’s prison. The High Court agreed that this meant he had to be moved to a women’s prison. The prison service’s defence of the case seems to have been half-hearted and inept, and there was no discussion in court of the needs or the Convention rights of the women who were to be locked up with Jones. What little discussion there was of how they might feel was confined to treating them as an obstacle: the psychiatric expert who gave evidence speculated that there might be opposition from some of the kind of women who enjoyed conflict, but he thought that could be overcome.
The claimant’s strategy in FDJ seems to have been to treat B as an immovable object, and try to work round it. So there was no argument that men shouldn’t be in women’s prisons at all. Instead, FDJ argued that a different balance should have been struck between the rights of men who say they are women, and the rights of incarcerated women not to be exposed to the risk and the fear of sexual assault.
But those are exactly the kinds of arguments courts don’t like in judicial-review proceedings. When difficult balances have to be struck as a matter of policy between the needs of this group and the needs of that group, the courts will normally stand back and say that that is a policy decision for public servants and ultimately for ministers accountable to the public through the ballot box. To win a judicial review you have to be able to show that a policy is unlawful, not just bad. So essentially I think the claimant in FJD lost by asking for too little.
That was a bad loss for our side: it was a judgment of a powerful court, and its effect has been to entrench and confirm the shocking judgment in B. The necessary frontal attack on B will now almost certainly take a trip to the Court of Appeal.
Finally on the story so far, we have Forstater, establishing that gender-critical belief is protected under the Equality Act. The specific practical importance of that to women-only spaces is that it reduces the risk that people will lose their jobs even for making the arguments in defence of women’s spaces. But it only reduces the risk. Your employer can’t lawfully dismiss or discipline you for making these arguments, but they may still do either of those things unlawfully. I’m forever asking clients to think about whether, in their particular circumstances, a job may be a better thing to have than even a slam-dunk employment-tribunal claim.
This creates a real practical impediment to good strategic workplace cases that will result in a tribunal judgment. Putting it brutally, the claimant has to be mad enough to be willing to risk torching her career for her right to speak the truth – but also sane enough to make a good witness. These paragons exist, but they’re rare.
Cases in the pipeline
I’m only aware of two cases specifically on women-only services. One is a woman called Sarah’s case against Brighton Survivors’ Network, in which I’m instructed. The other is the recently-launched challenge to the World Eightball Pool Federation’s trans-inclusion policy – who’d have seen pool coming as the specific battleground for women’s sport?
The argument in these cases is that the service-providers’ “trans inclusive” rule puts women at a particular disadvantage, and can’t be justified. So this is an attempt to use indirect discrimination to fashion a positive requirement to run single-sex services out of the permission to do so that the Equality Act provides.
Any number of cases could be run along these lines. Any supposedly women-only service or space that decides to admit men could be challenged in the same way. Suppose a local authority runs a women-only swimming session. Suppose a trans-identifying man shows up in his bathing costume, and they let him join. Any of the women who regularly use that session could sue the local authority for indirect discrimination on grounds of sex. Depending on the local demographics, there might be indirect discrimination on grounds of religion or race as well. There would be an argument about justification: the local authority would have to say what legitimate aim it thought it was serving by letting the man join the session, and try to persuade the court that it was proportionate to do so.
A win in one of these cases won’t determine the outcome in the next: there will be different justification arguments each time. So these cases won’t be strategic in the sense that they are precedent-setting. But with each one we win, or each high-profile settlement, we’ll make it a bit harder for transactivists to bully other service-providers into being “trans inclusive”. And a bit easier to persuade them that the safer course is to provide genuinely women-only services.
I want to pause here and make a slightly counter-intuitive point. It’s not self-evident that the best cases for us are our best cases.
What do I mean by that?
The most compelling arguments for single-sex spaces and services with no exceptions are things like rape-crisis services and intimate personal care. Even in Holyrood, Johann Lamont’s amendment to the Victims and Witnesses (Scotland) Act 2014 to ensure that rape victims could specify the sex – not gender – of the doctor conducting a medical examination of them after the offence was passed with overwhelming support. The example given in the explanatory notes to the Equality Act of a situation in which it might be necessary to specify that a job must be held by a woman, excluding even men with gender-recognition certificates, is a role as counsellor working with victims of rape.
I’m sure I’m not the first to make this point, but I don’t think it’s an accident that rape and domestic-violence services have come under such intense pressure from trans-rights activists. These are the contexts in which the right to single-sex spaces ought to be most obvious. These spaces should be our inner sanctum. So if transactivists can take these spaces, they’ve won. How can we possibly defend the women-only yoga class or swimming session once rape crisis has fallen?
So that’s the battleground chosen by our enemies. But we can learn from them, and do the same move in reverse. Because the opposite holds: if we’re entitled to a women-only swimming session, how can we possibly fail when it comes to rape counselling or intimate personal care? If we establish beyond doubt that ordinary women with no special vulnerabilities need single-sex workplace toilets and gym changing-rooms, the job should be done for rape-crisis services, and domestic-violence refuges, prisons and hospital wards.
Strategically, schools have many advantages as our battleground of choice. They are familiar and everyday: most people never have anything to do with a rape-crisis service or a domestic-violence centre, but almost everyone has dealings with schools either as pupil or parent or each in turn. Schools are closed, rules-based environments where everyone’s sex is known: schools have an obligation to keep these records, and they will never be falsified because no child has a gender-recognition certificate. So the arguments can’t be derailed with talk of genital inspections. They are safeguarding-led, or should be – and there are regulations that make single-sex facilities compulsory. The arguments for privacy and dignity don’t depend on schoolgirls being uniquely vulnerable or schoolboys uniquely dangerous.
Workplaces have many though not all of the same advantages – being everyday, closed environments where everyone’s sex is likely to be known, and where the arguments don’t depend on any special vulnerabilities.
The future
There’s a wide range of different legal tools that we can make use of to defend or re-establish women-only spaces. I’ve come up with the following possibilities to explore – I am sure there are many more I haven’t thought of.
- Indirect discrimination (sex, religion, sometimes race) by making a service for women “trans-inclusive” – causing women to self-exclude.
This is the indirect discrimination argument I sketched earlier.
We can pursue this by way of a few high-profile flagship cases. But if we’re successful in some of those, we also need to empower and equip women to make these arguments for themselves, up and down the country. We can gradually amass a library of sample letters. Litigation is stressful and expensive, but a letter before claim doesn’t have to cost anything.
As I said earlier, I suspect this tactic is being used on the other side: trans-identifying men are bullying their way into women’s spaces by threatening litigation, on which the service provider folds, apologises and probably pays them a couple of thousand pounds in compensation for injury to feeling. It never goes to court, but another women’s space is quietly lost. We need to put this into reverse.
- Discrimination and harassment claims where women have been subjected to men invading their spaces in any context in which sex discrimination or harassment is prohibited. The female colleagues of the claimant in V could have brought harassment claims of their own when their employer subjected them to V exposing himself in their changing room.
Again, once there have been a few high-profile wins in court, our tactic should be to empower women to make these arguments for themselves without incurring legal costs.
- Agitating for proper enforcement of specific regulations requiring single-sex toilets and suchlike in workplaces and schools.
- Complaints to licensing authorities when licensed premises provide facilities that are inadequately private for women.
- Judicial Review of unlawful policies or guidance, for example for the National Health Service, police, prisons or schools.
- Charity law – complaints to the Charity Commission when a charity whose objects are for the benefit of women unilaterally decides that “women” includes any man who says he is a woman.
- Academic freedom and schools’ duty of political impartiality – this may seem a long way from protecting women-only spaces, but one of the points made in Matilda Gosling’s forthcoming research paper for Sex Matters is about the effect of pressure inside women’s-sector organisations from younger staff members who have been steeped in trans ideology in the course of their education. If we don’t defend free speech in universities and hold schools to their duty of political impartiality, any gains we win in the short term will be lost again in the longer term.
- Criminal law – for example if consent to an intimate examination or personal care is procured by deception, is that a criminal assault?
- Public procurement challenge – judicial review of “trans inclusive” requirements written into public-sector contracts for what ought to be single-sex service – compare Kaur v Ealing BC
- Freedom of Information Act requests to investigate the public procurement situation – what “trans inclusion” requirements have been written into which contracts? What equality-impact assessments have been done, with what results?
I’m particularly interested in this one. I have a feeling that FOIA appeals are a tool we’ve under-used so far. FOIA requests when answered can expose some very useful information. But in a way, they can be even more effective when the public authority refuses to answer and the matter goes to appeal. Then there’s a public hearing in the first-tier tribunal where senior people from the public authority in question have to come along and explain themselves. Such hearings are potentially a powerful way of getting senior people to say idiotic things in a public hearing, to help expose the scale of the problem of institutional capture. They also have the merit of being short – a first-tier tribunal hearing will rarely take more than a day – so they’re relatively cheap.
That’s a long list of some of the things we might do. It doesn’t follow that we should do all of them, let alone that any one of them is a good idea in a given situation.
Strategic litigation in furtherance of a campaign is a chancy business. Not all cases are good cases – bad cases can do real harm. Not every claimant with a good case will be able to see it through. Occasionally a campaigning organisation may be able to think of a case that it wants to run, and then go looking for a suitable client – but more often, litigation is driven by a particular individual getting to the end of their tether and consulting lawyers. And the lawyers are then bound by their duty to act in the best interests of the client, which may or may not align with our campaigning interests.
So there’s a limit to how strategic any of us – or all of us together – can hope to be. But we can talk to each other about litigation strategy; we can be as transparent as possible about the strategic aims and the legal merits when we crowdfund; we can try to develop some shared understandings about how crowdfunding ought to work. We can try to identify the cases that are more likely to do harm than good, and make sure we don’t promote those.
Conclusion: legal strategy isn’t just about litigation
I started by saying that legal victories don’t come out of a vacuum. I want to finish with the point that they don’t fall into a vacuum either: they contribute to the conversation, and what happens next after we win in court is at least as important as the win itself. Court victories need to be accompanied by a press and media operation to maximise their immediate impact. And then the lessons need to be drawn out and promulgated to the people who need to hear them – so there needs to be accurate commentary and analysis in the publications read by the people who are taking decisions on the ground. All that has to be done against an enormous resistance set up by the misinformation campaigns that have been waged by organisations like Stonewall.
In my own field of discrimination law, there’s an instructive contrast with the early days of sex and race discrimination law. Prohibition of sex and race discrimination came in in the 1970s, and it was a shock at first: some of the early cases show employers quite innocently surprised that they’re not allowed to discriminate any more, especially on grounds of sex. But people wrote guides to the new law, training was developed, textbooks and courses were updated. Employers and human-resouces advisers gradually caught on.
What we’re seeing now is a bit like that, but with a difference. The difference is that there’s a whole industry of organisations and commentators determinedly pumping out misinformation and doing their best to minimise and talk down the implications of Forstater. These groups and individuals have ready access to legal and human-resources periodicals, and they have the ear of ACAS (the Advisory, Conciliation and Arbitration Service for employers and employees), and the Chartered Institute of Personnel Directors; they are invited in to advise schools and employers and train judges. Each legal victory is likely to need to be followed up by years of patient writing, analysis, arguing, persuading and arm-twisting.
It’s a large task. But looking round the talent and determination represented in this room alone – not to speak of all the other organisations and individuals nationally who are doing their bit – I have the feeling we’re going to be equal to it.
19th December 2023: Edited to add a reference to the description of the Taylor v Jaguar Landrover case as “landmark” and to remove speculation about the thought processes of judges.