Legal systems

Sex matters in our laws, and evolving case law has sought to clarify questions about sex and gender identity in practice. Much of the case law to date has been driven by claims brought by those seeking to replace sex with gender, but recently there has been a growth in cases using the law to clarify where sex matters.

The law can help us answer questions about interactions and conflicts between trans rights and women’s rights, and about the right to discuss these subjects without fear of bullying, criminal prosecution or loss of livelihood. Where the laws are not working, it is sensible to seek to reform them. But this depends on both lawmakers and also judges making decisions on the basis of the law as it is, not as campaigners or pressure groups would like it to be.

What is the problem?

‘Stonewall law’

Stonewall and other organisations campaigning on related issues (GIRES, the Trans Equality Legal Initiative (TELI), Gendered Intelligence, Mermaids, to name a few) have for many years now been doing two things in parallel:

1. Campaigning to change the law, so that the rights of trans people are extended at the expense of others, chiefly women.
2. Lobbying that asserts – through ‘guidance’ documents, training and so on – that the law is in various respects already as they would like it to be.

Due to this it is now widely believed that trans people have an automatic right of access under the Equality Act 2010 to single-sex spaces and services hitherto provided for the use of the opposite sex. Not only is this widely believed among non-specialists: the myth has been repeated in official guidance from supposedly neutral bodies like Acas and the Equality and Human Rights Commission.

Training judges

Judges are subject to the same social pressures as the rest of us: career ambition, pressure to conform, and the desire to appear up-to-the-minute and “on the right side of history”.

And judges receive training.

Make a dubious, poorly evidenced or illogical claim as an advocate in court, and you can expect the judge to prod it, test it with pointed questions, hold it up to the light, and throw it out if it doesn’t stand up. But make the same dubious claim in the course of “training” for judges, or in an official document provided for their guidance, and there’s a real danger that it will bypass their critical faculties, and pass directly into the category of stuff they think they know.

Worse, judicial training seems to be secret. Freedom of Information requests for the content of whatever “trans awareness” training judges have received have so far been blocked.

We do know, though, from a document published on judiciary.gov.uk, that in 2018 employment judges were receiving training from an organisation called Gendered Intelligence. Gendered Intelligence is a charity that promotes a highly contentious set of beliefs about gender and gender identity, and is actively campaigning for gender self-identification to replace sex.

Where do judges come from?

The overwhelming majority of judges are former barristers or solicitors; a few are former academic lawyers, though all of course have been educated at universities, disproportionately Oxford and Cambridge. Stonewall lists 89 universities (including both Oxford and Cambridge) among its “Diversity Champions”, as well as 80 of the larger law firms. That means that many of the environments in which future judges are being educated and gaining their early-career experiences are now steeped in Stonewall law.

The Equal Treatment Bench Book

This is a guidance document provided to judges by the Judicial College, which judges are encouraged to take into account wherever it is applicable. Its stated aim is to help judges ensure that they achieve “equality before the law”.

Its chapter on “transgender people” departs from the Equality Act, defines transgender people as “people who cross the conventional boundaries of gender”, and then gives an inaccurate paraphrase of the meaning of “transsexual” in the Equality Act.

It then states that “It is important to respect a person’s gender identity by using appropriate terms of address, names and pronouns” and “Everyone is entitled to respect for their gender identity…”

It is not quite clear whether the authors of the ETBB are telling judges that these are legal entitlements (they are not), or just that it would be nice if they acted as if they were. Either way, they are contentious claims. It is far from self-evident that a male rapist or paedophile is entitled to respect for his gender identity if, at some point after committing his offences, he announces that he now identifies as female. But such expectations have become prevalent in the legal system to the extent that the victim of an assault has been reprimanded (and refused compensation) by a judge for referring to her assailant – an obvious male – with the male pronoun “he”.