Sex Matters set to challenge City’s unlawful ponds policy

The City of London Corporation has decided to continue with its “trans inclusive” approach to admissions to the men’s and women’s ponds on Hampstead Heath. Chris Hayward, policy chair of the City of London, said that the decision would bring “certainty” and a “clear plan for the future”. However, some members of the Hampstead Heath, Highgate Wood and Queen’s Park Committee and the Policy and Resources Committee seemed less convinced and asked if they could review the policy again in July if anything changed in the meantime. Michael Cogher, a solicitor for the City, and Katie Stewart, its executive director for environment, reassured them that they could.

Sex Matters’ legal challenge is set to go ahead, with a hearing at the Royal Courts of Justice listed for 3rd and 4th November.

The decision to approve the policy was made in a meeting of the Policy and Resources Committee on Thursday 4th June, chaired by Hayward. He told the assembled members: “I am aware of the strength of feeling on both sides.” Stewart guided members towards voting for option two: “retaining the current trans-inclusive operation of the men’s and ladies’ pond”, alongside the introduction of “a clear access policy” and commitments to spend up to a million pounds to improve the changing and showering facilities at the three ponds.

The committee members had been given a private briefing the day before, but they appeared confused about the “clear access policy” they were being asked to agree to. What exactly does the City of London mean by “trans woman” and “trans man”? Everyone seemed too embarrassed to ask this question clearly, despite the legal and financial risk they were being asked to accept.

Ann Holmes, the City’s “chief commoner” – a role that involves acting as an ambassador for the organisation at ceremonial occasions and working to uphold the rights and privileges of the organisation’s elected members – thought that the new code of practice from the Equality and Human Rights Commission (EHRC) was “new legislation” and that the committee might need to consider it in a month’s time. She pointed to the legal definition of the protected characteristic of gender reassignment in the Equality Act and said:

“That definition seems to me to be very clear and very limited in who is properly regarded as having that characteristic. But when you read through the report, it seems to be saying we have no way of knowing this. We have no way of monitoring that. Basically, if somebody comes in and says I am a woman, we have to accept that. And I wonder how that actually fits with the recommendations we’re making?”

Steve Goodman, Labour Party member for Aldersgate, said that, in his view: 

“If we are going to have a Ladies’ Pond, then that should be for biological women only.”

But he also said:

“If they’ve got a gender-reassignment certificate, I don’t see why anyone would have an issue about them swimming in the women’s pond. But if they haven’t, then I think it will continue to create difficulty for our staff at the ponds who should be uppermost in our mind.”

Deputy Caroline Haines said that she had been reassured that “if we continue with the same provision that we have, then we are best protected by law”. She concluded that option two is “really the only reasonable option”. 

Brendan Barns, the chair of the culture, heritage and libraries committee, said he strongly supported option two, partly on the basis of the consultation but also because “the current arrangements have been in place for almost a decade, and there is only one documented incident”.

The lack of documented incidents may reflect the City’s policy of not recognising incidents because it does not recognise biological sex. Author Amanda Craig described her experience in an article in The Telegraph published on 6th June:

“I emerged from a cubicle into the small, cramped changing rooms at the Ladies’ Pond one hot summer’s day for a swim, I was astounded to find a big hairy man, genitals clearly intact, parading around.

I shot out at once, and when I told one of the pool lifeguards – tough, no-nonsense women who had fearsome reputations among generations of North London teenage boys silly enough to try and invade the ponds as a dare – I expected them to be up in arms, or call the police. No such luck.

‘There’s nothing we can do,’ I was told. ‘It’s policy to allow trans women.’

‘But this is a man. You can see he’s a man.’

The lifeguard grimaced.

‘If they claim to be a woman, we can’t do anything.’”

Alderman Vincent Keaveney had read the EHRC guidance and was concerned that it suggests the City’s preferred policy would “very likely” amount to unlawful sex discrimination against people of the opposite sex who were not allowed to use a service, and that a mixed-sex service must be open to all service users. He asked:

“If we adopt option two as recommended, are we then able to continue to maintain men’s and women’s ponds as we currently maintain them with the distinction? With that trans-inclusive policy that we’ve adopted, will we ultimately have to open the ponds to men and women alike and trans men and trans women alike?”

Councillor Goodman and Henry Colthurst, the chair of the finance committee, argued that the City should “follow the case law”. But this caution was swept away, as the committee voted in favour of gender self-ID.

Stewart told them that enforcing rules based on sex was out of the question because “there is very little way in which you can do that in a dignified way”. She said that under option two “staff will use common sense” to decide which men to allow in and which to exclude.

Florence Keelson-Anfu, the chair of the HR committee, asked for “a separate paper to maybe come back to corporate services on how we’re going to protect our staff”, focusing on verbal abuse they might receive.

Is this lawful?

The committee went into closed session to hear answers to their queries about whether this “common sense” approach is lawful. It also received a short paper on the legal implications arising from the EHRC draft code of practice on services, which gives a clue to the answers they would have been given in private by City solicitor Michael Cogher. It fails to define the basic contraventions related to sex discrimination and harassment and sexual harassment in the Equality Act, or to make sure that the committee members fully understood the risk they were being asked to take by instructing their staff to use “common sense” to exclude most men from a service, but to admit some men (and call them women) and to allow those men to undress with women and girls who have been told it is a female-only space. None of this can be solved by building a few more cubicles. 

The City of London’s argument in the legal paper is that:

“A trans-inclusive service may not amount to direct sex discrimination, since the exclusion would be based on lived gender, not sex.” 

“Moreover, even if the provision of a trans-inclusive service would otherwise amount to unlawful sex discrimination, such discrimination will not be unlawful if the service-provider lawfully applies the positive action provisions under section 158 of the 2010 Act.” 

We look forward to testing these arguments in court. 

Who will pay the bill?

There was much discussion of where the £1 million for building works for new cubicles and other refurbishments would come from: the City of London’s contingency funds or the budget already allocated to the charity that runs Hampstead Heath (of which the City of London is the sole trustee). 

Alderman Henry Colthurst, who signs off the Hampstead Heath charity’s annual accounts, warned against the City continuing to underwrite the charity’s costs with a blank cheque. It makes the City  a sitting duck for unplanned expenses, he said. “I just think we need to be very alive to the impact of having these deficit-funded charities on our books because we are making ourselves look pretty stupid.”

No one representing the governing body for London’t financial centre mentioned the legal and financial risk of directing staff to implement a policy which defies the Supreme Court and which the EHRC says is “very likely” to result in potential liability for mass sex discrimination. 

All staff that work on behalf of the Hampstead Heath charity are employed by the City Corporation. As the Equality Act makes clear at Section 109(1): 

“Anything done by a person (A) in the course of A’s employment must be treated as also done by the employer.” 

Several of the City councillors were rightly concerned about the welfare of their staff. But this didn’t seem to extend to carefully considering the legal risk they are placing them under. Employees are personally liable for unlawful discrimination and harassment that they commit by implementing their employer’s policies (even if the employer is also liable). Section 110 (3) gives employees a get-out clause if they rely on a statement by the employer “that doing that thing is not a contravention of this Act” and it is reasonable for them to have trusted the statement.

If City of London bosses are confident that they understand their legal responsibilities and are concerned for the welfare of the lifeguards, constabulary officers and other staff on Hampstead Heath, they should make a statement reassuring them that the policy does not instruct them to contravene the Equality Act. 

Chris Hayward, Alderman Colthurst and their colleagues should pay particular attention to Section 110 (4) of the Equality Act, which establishes that if they ”knowingly or recklessly” make such a statement and it is “false or misleading in a material respect”, they will have committed a criminal act. 

Where is the EHRC?

The City of London has spent a lot of time and money avoiding complying with the law. We will see it in court in November, unless it backs down. But it really shouldn’t be this hard for a group of well-paid, responsible professionals from the nation’s financial centre to understand the Equality Act, which covers businesses of all sizes. 

The EHRC could help resolve this issue now, simply and cheaply. It could send the City of London’s Policy and Resources Committee a letter explaining that the policy to which the committee has agreed will very probably result in staff contravening the Equality Act in fundamental ways, and that it would, in the regulator’s view, be false and misleading to reassure them otherwise. The EHRC could also explain to the City of London that if it operates the ponds as separate-sex services, under Schedule 3 Part 7 (that is, based on biological sex) then it will not be instructing its staff to contravene the law. 

It should publish this letter to make clear that any statement to the contrary by the City of London, its political leaders or senior executives would be both reckless and knowing. This might focus the minds of the members of the Policy and Resources Committee when it next meets on 9th July on the risks it is signing up to accept, instead of continuing to distract themselves with building plans for cubicles.