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Biology Matters Project Compendium
1st Edition
By Maureen O’Hara
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Foreword
Baroness Jenkin of Kennington • Rosie Duffield MP • Joanna Cherry KC MP
Biology matters and has always done so. Yet over the last few years, gender identity ideology – the belief that the gender a person feels themselves to be is more important than the material reality of their biological sex – has become increasingly influential across both the public and private sector. So influential that politicians across the spectrum are struggling to answer one of the easiest biology questions there is: ‘what is a woman?’
This ground-breaking inaugural newsletter aims to systematically document the development and impact of policies based on gender identity ideology and the processes by which it has been adopted. In cataloguing these examples, Policy Exchange does not offer any judgment on the actions of the individual or institution in question, today or in the past. The project gathers evidence about the processes by which gender identity ideology has been adopted. It also documents instances where such policies have been changed or modified as the result of public debate. Policy Exchange should be commended for creating the Biology Matters Unit, and publicly stepping into an arena too many other policy institutes and media outlets are afraid to enter.
Concern about these developments crosses ordinary political divisions. We are from three different political parties, with very different views on the economy, on many social issues and even on the future of the UK itself. Indeed, some of us would strongly disagree with the work of Policy Exchange in a number of other areas. The impact of gender identity ideology on childrens’ rights, women’s rights and the rights of LGB people, however, is a matter of importance for everyone who cares about truth and fairness.
Scientific fact and reality have become the victim of an ideological revolution that is having direct implications on our institutions, many of whom are seamlessly and obediently falling into line with the demands of gender identity ideology. Within health, education, the criminal justice system, sport and the workplace, policies that lean towards accommodating the concerns of one small but vocal minority risk compromising the rights and safety of women and children, and same sex attracted people.
Perhaps most worryingly, this is taking place without public scrutiny, and in the absence of democratic consensus. In some cases, organisations have even adopted policies that are in direct opposition to the law of the land, including the Equality Act and the Human Rights Act. Lack of informed and scholarly exploration about the implications of gender identity ideology only serves to perpetuate the polarity of the debate.
As this newsletter demonstrates, when left unchecked, gender identity ideology is able to rapidly infiltrate public life, sometimes with disastrous consequences for the vulnerable. This inaugural newsletter marks the beginning of a significant contribution to a conversation that desperately needs scholarly understanding, nuance, and rational decision making.
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The purpose of Policy Exchange’s new Biology Matters project is to systematically document a range of recent developments regarding the adoption of policies and practices based on self-identification of ‘gender identity’ on the part of public sector organisations, the voluntary sector, and some sports bodies. Gender identity theory, which underpins these developments, is rooted in the belief that individuals’ subjective sense of ‘gender identity’ should take precedence over biological sex.
The Gender Recognition Act 2004 makes provisions enabling individuals to obtain a Gender Recognition Certificate (GRC) which changes their sex in law for most purposes, provided that they meet certain criteria specified in the Act. This is known as gender reassignment. Self-identification of ‘gender identity’, in which assessment criteria are removed from the process of changing sex in law, has not been incorporated into law in England and Wales, which does not include the category of ‘gender identity’. The proposal that it should be introduced into law was explicitly rejected by the Government in 2020.
Nevertheless, many organisations have effectively introduced de facto self-identification and have developed policies which are based on gender identity theory. This has taken place without public scrutiny and in the absence of democratic consensus.
The Biology Matters project aims to document the development and impact of policies based on gender identity theory. The project will gather evidence about the processes by which gender identity theory, and policies enabling self-identification of ‘gender identity’, have been adopted. It will also document instances where such policies have been changed or modified as the result of public debate. In cataloguing these examples, we remain objective about the actions of the individual or institution in question.
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Policy Exchange issues a call for evidence asking people to share their experiences and concerns about the ways in which gender identity ideology is being adopted in the public sphere, sending their evidence to callforevidence@policyexchange.org.uk
This might include:
- Examples of where women’s rights, the rights of LGB people, and children’s rights are at risk of being undermined by the adoption of gender identity ideology.
- Examples of where organisations and public sector services have introduced de facto self-identification and have developed policies based on gender identity ideology.
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Contents
- The Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust to close following Cass Review’s interim recommendations
- Possible medical negligence claim against the Tavistock and Portman NHS Foundation Trust
- Medical negligence claim by de-transitioner Ritchie Herron
- Mermaids’ challenge to the Lesbian, Gay and Bisexual Alliance’s charitable status
- The avoidance of the words ‘mother’ and ‘woman’ by some NHS maternity services
- The NHS Confederation’s proposed ‘Trans allyship’ research
- The GLADD “UK Medical Schools Charter on So-Called LGBTQ+ ‘Conversion Therapy’”
- Employment litigation: Discrimination and victimisation based on gender critical belief (Forstater)
- Employment litigation: Discrimination and victimisation based on gender critical belief (Bailey)
- Employment litigation: Discrimination based on gender reassignment
- Censorship of academic research
- Proposed new Youth Custody Service policy
- Revised guidance on the participation of trans-identifying males in women’s sports: International and UK sporting bodies
- The former Attorney General’s Keynote Speech at Policy Exchange on 10 August
- Gender Recognition Act (GRA) Reform Bill, Scotland
- Mermaids to be investigated by the Charity Commission over safeguarding concerns
- Crown Prosecution Service Consultation on the Deception as to Gender section in the Rape and Serious Sexual Offences (RASSO) legal guidance
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1. The Gender Identity Development Service (GIDS) at the Tavistock and Portman NHS Foundation Trust to close following Cass Review’s interim recommendations
 On 28 July NHS England announced its intention to close the national Gender Identity Development Service (GIDS) for children at the Tavistock and Portman NHS Foundation Trust by next Spring, and to replace it with regional treatment centres. This decision follows serious concerns about the service which were raised in the interim report of the Independent review of gender identity services for children and young people (the Cass Review).
The Cass Review, which is chaired by Dr Hilary Cass, was commissioned by NHS England and NHS Improvement in Autumn 2020 to make recommendations about services provided by the NHS to children and young people who are questioning their ‘gender identity’ or experiencing ‘gender incongruence’. The interim report was published in February. It expressed support for existing NHS England plans to move away from the single highly specialist national service at GIDS and establish regional hubs.
One of the key concerns raised by the report is that GIDS predominantly uses an ‘affirmative approach’ which accepts the claimed ‘gender identity’ of children and young people experiencing gender incongruence without exploring the factors which may be contributing to their discomfort with their biological sex. The report notes that approximately one third of children and young people referred to GIDS have autism or other types of neurodiversity. There is also an over-representation of looked after children within this group, many of whom are likely to have experienced significant childhood trauma. However, the Cass Review has found limited evidence of mental health or neurodevelopmental assessments being routinely carried out, and its interim report states that there does not appear to be a standardised approach to assessment within GIDS. The interim report also notes that both primary and secondary care staff have stated that they feel under pressure to adopt an unquestioning affirmative approach which is at odds with the standard process of assessment and diagnosis which they have been trained to undertake in all other clinical contexts.
The affirmative approach emphasises physical interventions over therapeutic exploration. Physical intervention consists of three stages. Stage one is the administration of puberty blockers, which is viewed as clinically appropriate for children who have reached the beginning of the physical development of puberty. Stage two is the administration of cross-sex hormones, which are generally only prescribed from the age of 16. Stage three is gender reassignment surgery, which is only available via adult services to those aged over 18.
Puberty is a period of significant changes in brain structure and connectivity. The interim report notes concern about the unknown impacts on development and cognition if a child or young person is not exposed to pubertal changes.
Another concern about the use of puberty blockers is that the vast majority of young people who take them go on to take cross-sex hormones. This was noted by the Divisional Court in the case of Bell v Tavistock. The Court suggested that stages one and two are effectively two stages of one clinical pathway, since once children are on that path they rarely get off it. Similarly, the Cass interim report notes that data from the Netherlands published in 2020 and a study published by GIDS in 2021 demonstrated that almost all children and young people who were put on puberty blockers went on to take cross-sex hormones (96.5% and 98% respectively).
The interim report notes that there has not been routine and consistent data collection within GIDS, and therefore it is not possible to accurately track either the pathways that children and young people take, or their outcomes. It notes that longer-term follow-up data on children and young people who have been seen by ‘gender identity’ services is limited both nationally and internationally, and this includes those who have received physical interventions.
The interim report concludes that a single specialist provider model is neither safe nor viable in the long-term. A fundamentally different service model is needed which is more in line with other paediatric provision. It emphasises that care for children and young people needing support around their ‘gender identity’ must include support for any other clinical issues they present.
Concerns about GIDS’ practices have been expressed by a range of individuals and organisations over many years and have been the subject of journalists’ investigations. They were the subject of judicial review in the case of Bell v Tavistock, in which the first Claimant was Keira Bell, a young woman who was prescribed puberty blockers and cross-sex hormones, underwent a double mastectomy, and then de-transitioned. Although the Divisional Court’s decision that minors under 16 cannot give fully informed consent to puberty blockers was over-turned by the Court of Appeal, the case was significant in bringing the problems associated with puberty blockers to public attention.
In late 2020, the Care Quality Commission (CQC) carried out an inspection of GIDS due to concerns reported to them by healthcare professionals and the Children’s Commissioner for England. In January 2021, the service was rated ‘inadequate’ by the CQC.
GIDS’ operation will end in Spring 2023.
Sources
Hannah Barnes and Deborah Cohen, ‘NHS child gender clinic: Staff concerns 'shut down'’, BBC News, 19 June 2020
Care Quality Commission, ‘Tavistock and Portman NHS Foundation Trust Latest inspection summary, Gender identity services’, 20 January 2021
The Cass Review, 'Independent review of gender identity services for children and young people: Interim report', February 2022
David Connett, ‘NHS gender identity clinic whistleblower wins damages’, The Observer, 4 September 2021
NHS England, ‘Implementing advice from the Cass Review: Improving and expanding services for children and young people experiencing gender incongruence and gender dysphoria’, document undated
Case law reports:
Bell v Tavistock and Portman NHS Foundation Trust [2020] EWHC 3274 (Admin)
Bell v Tavistock and Portman NHS Foundation Trust [2021] EWCA Civ 1363
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2. Possible medical negligence claim against the Tavistock and Portman NHS Foundation Trust
The law firm Pogust Goodhead has announced that it is pursuing a claim against the Tavistock and Portman NHS Trust for medical negligence, and has encouraged former patients who are concerned about the treatment they received to join their group action and claim compensation.
Pogust Goodhead has called for families who feel their child was misdiagnosed or mistreated by the clinic to join their lawsuit against the Tavistock. They state that they hope the claim will provide financial compensation to families who have suffered, but also: “Most importantly, we intend to hold the Tavistock (as well as others) to account.”
A GIDS’ spokesperson told The Times:
“GIDS has not heard from Pogust Goodhead about this matter, but it would be inappropriate to comment on any current or potential legal proceeding. The service is committed to patient safety. It works with every young person on a case-by-case basis, with no expectation of what might be the right pathway for them, and only the minority of young people who are seen in our service access any physical treatments while with us.”
Sources
Eleanor Hayward, ‘Tavistock gender clinic ‘to be sued by 1,000 families’, The Times, 11 August 2022
Pogust Goodhead, ‘Tavistock Compensation Claim’
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3. Medical negligence claim by de-transitioner Ritchie Herron
 Ritchie Herron is a man who previously adopted a female ‘gender identity’ and has now de-transitioned. He is bringing a claim in negligence against Cumbria, Northumberland, Tyne & Wear NHS Foundation Trust, who run the Northern Region Gender Dysphoria Service, in relation to the surgical removal of his genitals.
Herron says that as a result of the surgery, which took place in his twenties, he is infertile, incontinent, and experiences ongoing pain.
Herron told Mail on Sunday that, “This is an avalanche waiting to happen… Transition is now being sold to people on a mass scale. It’s like PPI, but more sinister.”
Herron is gay and says he found it difficult to come to terms with his sexuality. He tried to deny it, and suffered with depression, anxiety and obsessive-compulsive disorder. He reports that his clinicians focused only on his gender dysphoria diagnosis and failed to address his other mental health problems before recommending genital surgery.
Herron’s barrister, Peter Harthan, told Mail on Sunday that “clinicians failed to identify red flags and change direction. Proper consideration needs to be given to issues such as OCD, internalised homophobia, depression, drug use, sexual abuse and childhood trauma as potential reasons for patients rejecting their sexed body.”
In a statement provided to the paper , the Trust said it could not comment on an individual, but stated that:
“Care plans are collaborative and tailored to each patient’s needs and goals, and treatment decisions are made following a thorough assessment in line with national recommendations.”
Ritchie Herron discussed his experiences in this interview with Times Radio on 28 June.
Sources
Sanchez Manning, 'My first thought as I came round was Oh God! What have I done?': Man suing the NHS over trans surgery he bitterly regrets has bravely waived anonymity to share his ordeal’, Mail on Sunday, 25 June 2022, Updated 28 June 2022
Times Radio, ‘Transitioning was 'the biggest mistake of my life' | Ritchie Herron interview’, 28 Jun 2022
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4. Mermaids’ challenge to the Lesbian, Gay and Bisexual Alliance’s charitable status
 Mermaids v The Charity Commission of England and Wales and The Trustees of LGB Alliance, Claim No: CA/2021/001
Mermaids, a charity which describes itself as campaigning on issues relating to ‘gender diverse young people’, is challenging the decision of the Charity Commission for England and Wales (the Charity Commission) to grant charitable status to the Lesbian, Gay and Bisexual Alliance (LGB Alliance).
The LGB Alliance was set up in October 2019. Their website describes their mission as advancing lesbian, gay and bisexual rights. LGB Alliance “recognise that sex is binary, female and male, and that (for the vast majority of people) sex is determined at conception, observed at birth (or in utero), and recorded”. They also work to “protect children from harmful, unscientific ideologies that may lead them to believe either their personality or their body is in need of changing”.
The LGB Alliance registered as a charity in April 2021. The Charity Commission published its reasons for granting the organisation charitable status because it had received objections to its application.
In June 2021 Mermaids, supported by a number of LGBT organisations, lodged an appeal against the Alliance’s registration.
In order to become a charity an organisation’s purpose must fall within section 3(1) of the Charities Act 2011, and must be for the public benefit.
In their grounds of appeal, Mermaids argue that the LGB Alliance’s purposes do not meet either criteria. They argue that the LGB Alliance’s purposes encourage discrimination against transgender people, involve engaging in offensive public facing communications, hamper the efforts of LGBT rights charities to further their own charitable objectives, and are contrary to public policy recognised in equalities legislation.
The first part of the Tribunal hearing took place in September. Due to time constraints, it was adjourned until November.
Sources
Charity Commission for England and Wales, 'LGB Alliance - Full Decision', 20 April 2021
LGB Alliance, ‘Purpose’
Mermaids, ‘About Mermaids
Mermaids v Charity Commission for England and Wales, In the First Tier Tribunal General Regulatory Chamber (Charity), Grounds of Appeal
Section 3 Charities Act 2011
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5. The avoidance of the words ‘mother’ and ‘woman’ by some NHS maternity services
 Mail on Sunday has reported that a third of NHS hospitals are now using phrases such as ‘pregnant people’ and ‘service users’ to describe their maternity patients in attempts to be more ‘inclusive’ of those experiencing pregnancy and childbirth who identify as transgender.
The newspaper sent Freedom of Information requests to 124 NHS hospital trusts in England which run maternity units asking them about the language they use to discuss pregnancy. They found that 42 of the trusts (34%) have adopted ‘additive’ terms like ‘birthing people’ for maternity patients. Twenty-nine trusts said they only use the word ‘women’ or ‘mother’ to talk about pregnancy. Fifteen others were considering introducing language such as ‘pregnant people’.
The meaning of ‘additive terms’ is ambiguous. It is not clear whether the 42 trusts who use them have removed sex-based terms like ‘mother’ and ‘pregnant women’, or have kept them and also used terms like ‘birthing people’. The latter approach is recommended by the Royal College of Obstetricians and Gynaecologists (RCOG) and the Royal College of Midwives (RCM), whose inclusivity statement advocates for maintaining women-centred language while including additional terms.
A journal article written by an international group of researchers and practitioners in women’s reproductive care states,
“Avoiding sexed terminology in relation to female reproduction works against the plain language principle of health communication and risks reducing inclusivity for vulnerable groups by making communications more difficult to understand.”
Sources
Stephen Adams and Anna Mikhailova, 'A THIRD of hospitals now use woke terms like ‘pregnant people’ instead of mothers in fear of upsetting transgender campaigners’, Mail on Sunday, 14 August 2022, (updated 15 August 2022)
Kathleen D. Gribble et al, ‘Effective Communication About Pregnancy, Birth, Lactation, Breastfeeding and Newborn Care: The Importance of Sexed Language’, Frontiers in Global Women's Health, 7 February 2022
Royal College of Midwives, ‘Inclusivity statement from the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives’, document undated
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6. The NHS Confederation’s tender for ‘Trans allyship’ research
 The NHS Confederation is the membership body which speaks on behalf of organisations that plan, commission, and provide NHS services in England, Wales, and Northern Ireland. This includes hospitals, community and mental health providers, ambulance trusts, primary care networks, clinical commissioning groups and integrated care systems.
In August, the Confederation published a tender for ‘Trans Allyship Research’. The tender states:
“We are tendering for a piece of work that will act as a practical guide for senior healthcare
leaders, equipping them with the knowledge and confidence to model meaningful trans and
non-binary allyship. The guide should also include ideas for supporting NHS
organisations when they face opposition from anti-trans groups and individuals.”
The tender does not explain the meaning of “trans allyship” or “anti-trans groups and individuals”. Organisations have expressed concerns that the proposed project will lead to discrimination against those with gender critical beliefs, who are protected under the Equality Act 2010. There are concerns that the tender fails to consider all of the protected characteristics under the Equality Act and fails to recognise that there are conflicts of rights involved in relation to the NHS’ approaches in this area.
On 23 August, the human rights organisation ‘Sex Matters’, who aim to promote clarity about biological sex in public policy, law and culture, wrote to the Federation’s Chief Executive, Matthew Taylor, and its Chair Victor Adebowale, to express their concerns about the tender. Their letter, which was copied to the Equality and Human Rights Commission and the Charity Commission, states that the tender:
“…is founded on an approach that promotes discrimination against people who do not share a belief in gender ideology. Such an approach has been found to be unlawful in practice.”
In what appears to be a response to the Sex Matters letter, on 24 August, the Confederation stated on its website that the tender is in response to requests from members who "are looking for advice and guidance that falls within the confines of regulation, and this is one of a range of activities the NHS Confederation is undertaking to address the challenges faced by those with protected characteristics.”
Sex Matters’ response to this statement can be found here.
The Clinical Advisory Network on Sex and Gender, a group of clinicians based in the UK and Ireland who call for greater understanding of the effects of sex and gender in healthcare, have also expressed concern about the Confederation’s tender.
Sources
Clinical Advisory Network on Sex and Gender, ‘Why is the NHS Confederation ignoring the Cass review in pursuit of trans allyship?’ 25 August 2022
NHS Confederation, ‘Invitation to tender For NHS Confederation: Trans allyship research’, August 2022
NHS Confederation, ‘LGBTQ+ network tender for trans and non-binary allyship guide Equipping senior healthcare leaders with the knowledge and confidence to model meaningful trans and non-binary allyship.’, 24 August 2022
Sex Matters, 'Letter to Matthew Taylor and Victor Adebowale', 23 August 2022
Sex Matters, ‘NHS Confederation: leadership needed’, 26 August 2022
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7. The GLADD “UK Medical Schools Charter on So-Called LGBTQ+ ‘Conversion Therapy’”
 GLADD is the UK Association of LGBTQ+ doctors and dentists, and medical and dental students. With Lancaster University Medical School it has published the ‘ UK Medical Schools Charter on So-Called LGBTQ+ ‘Conversion Therapy’ which calls on UK medical schools to condemn the use of, and support the banning of, LGBTQ+ conversion therapy in the UK. The Charter describes conversion therapy as,
“…an umbrella term for a therapeutic approach, or any model or individual viewpoint that demonstrates an assumption that any sexual orientation or gender identity is inherently preferable to any other, and which attempts to bring about a change of sexual orientation or gender identity, or seeks to suppress an individual’s expression of sexual orientation or gender identity on that basis.”
Following a consultation on proposed legislation to ban conversion therapy, the Government announced in April that it would proceed with a ban on conversion therapy relating to sexual orientation, but would pause plans to introduce similar legislation in relation to ‘gender identity’. A number of organisations expressed concerns about these plans, including the Equality and Human Rights Commission, whose response to the consultation noted the importance of careful consideration before introducing a blanket ban on conversion therapy.
The Clinical Advisory Network on Sex and Gender note that the British Medical Association and many medical schools have signed the Charter. Their response to the Charter suggests that as more medical schools sign it, it will become harder for those with reservations not to sign. They state that,
“At best, this is a confused and confusing charter, with a lack of definitions and poor evidence to back it up. At worse, this might have the very opposite of the intended consequence of a legislative ban, ‘converting’ gay, lesbian and gender non-conforming youth into simulacra of the opposite sex, with all the negative health outcomes associated with gender medicine.”
Sources
Clinical Advisory Network on Sex and Gender, ‘Should UK medical schools sign GLADD Charter on So-Called LGBTQ+ ‘Conversion Therapy’?’, 25 July 2022
Equality and Human Rights Commission, ‘Response submitted to UK Government consultation: Banning conversion therapy’, January 2022
Equality Hub and Government Equalities Office, ‘Closed consultation: Banning conversion therapy’, updated 9 December 2021
The Association of LGBTQ+ Doctors and Dentists (GLADD) and Lancaster University Medical School, ‘UK Medical Schools Charter on So-Called LGBTQ+ ‘Conversion Therapy’, undated
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8. Employment litigation: Discrimination and victimisation based on gender critical belief
Forstater v CGD Europe and others, Employment Tribunal, Case No. 2200909/2019, 2022
This Employment Tribunal case relates to the earlier case of Forstater v CGD Europe and others, a landmark case in which the Employment Appeals Tribunal (EAT) held that ‘gender critical belief’ is protected under section 10 of the Equality Act 2010. The core of this belief is that sex is biologically immutable. This more recent case relates to the question of whether the Claimant, Maya Forstater, had been discriminated against because of her gender critical beliefs. A key aspect of this question was whether her manifestation of these beliefs was objectively offensive or unreasonable.
In the EAT case, the Tribunal noted that gender-critical beliefs are widely shared and are consistent with the law. They referred to “the cardinal principle that everyone is entitled to believe whatever they wish, subject only to a few modest, minimum requirements.” A belief is not excluded from the protection of Article nine or Article ten of the European Convention on Human Rights (the rights to freedom of thought, belief and religion and to freedom of expression respectively) merely because it has the potential to offend, shock or disturb a section of society.
As a result of sharing her gender-critical beliefs on Twitter, the Claimant’s employment as a researcher at the Centre for Global Development (CGD), a think tank based in London and Washington, was ended. She brought a discrimination claim in the Employment Tribunal and argued that her gender critical beliefs are a philosophical belief and should be protected as such under section ten of the Equality Act 2010. The Employment Tribunal rejected this argument, but its decision was later over-turned by the Employment Appeals Tribunal.
The EAT’s decision dealt only with the issue of whether gender critical beliefs were protected under the Equality Act. This latter case in the Employment Tribunal concerned Ms Forstater’s claims that she had been discriminated against, victimised, and harassed by the Respondent because of her gender critical beliefs.
The Tribunal found unanimously that the Claimant’s complaints of direct discrimination because of her gender critical belief were well founded in respect of the Respondents’ decisions not to offer the Claimant an employment contract (which she had previously been encouraged to believe she would be offered), and not to renew her visiting fellowship. Other complaints of direct discrimination because of belief were dismissed.
The Tribunal also found that a complaint of victimisation on the basis of gender critical belief was well founded in respect of the removal of the Claimant’s profile from the organisation’s website.
A complaint of victimisation in respect of the withdrawal of an offer to engage the Claimant as a consultant was dismissed; and complaints of harassment and indirect discrimination on the grounds of sex and belief were also dismissed.
A key issue in this case was whether the Respondents’ actions were motivated by the Claimant’s gender critical beliefs in themselves, or whether the Respondents acted as they did because the Claimant’s manifestations of those beliefs were objectively offensive or unreasonable.
With the exception of one tweet, the Tribunal was unanimous in finding that the Claimant’s tweets were not objectively offensive or unreasonable. The majority made the same finding in relation to the remaining tweet.
Sources
Forstater v CGD Europe, Center for Global Development and Masood Ahmed, Employment Appeal Tribunal, Appeal No. UKEAT/0105/20/JOJ, 2021
Forstater v CGD Europe, Center for Global Development and Masood Ahmed, Employment Tribunal, Case No. 22000909/2019, 2022
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9. Employment litigation: Discrimination and victimisation based on gender critical belief
 Bailey v Stonewall Equality Ltd, Garden Court Chambers Ltd and Rajiv Menon QC and Stephanie Harrison QC, as representatives of all members of Garden Court Chambers, Employment Tribunals Case No: 2202172/2020, 2022
Allison Bailey, the Claimant in this case and a barrister at Garden Court Chambers, brought claims under the Equality Act 2010 against Garden Court and the organisation Stonewall alleging discrimination and victimisation on the basis of her gender critical beliefs.
The Claimant alleged that a series of actions by Garden Court were either 1) victimisation, in its legal sense of some reprisal for invoking the Equality Act 2010, 2) direct discrimination because of her gender critical belief, or 3) indirect discrimination because of her sex or because of her lesbian sexual orientation. She also alleged that Stonewall induced, instructed or caused some of Garden Court’s actions, or that they attempted to do so. The Tribunal found that two of the claims against Garden Court succeeded. They related to discrimination and victimisation respectively on the basis of the Claimant’s gender critical belief. The claim against Stonewall did not succeed.
Stonewall is an LGBTQ+ campaigning organisation. The Tribunal noted that in 2015 Stonewall “turned to transgender issues and gender recognition reform”. Stonewall lobbies for changes in the law to allow self-identification of ‘gender identity’ without assessments or pre-requisites.
In 2018, Garden Court joined Stonewell’s Diversity Champions Programme. Employers pay to participate in this programme and receive advice and training from Stonewall on developing and implementing their inclusion and diversity policies.
In October 2019, the Claimant was involved in setting up the Lesbian, Gay and Bisexual Alliance (LGB Alliance) which states the importance of biological sex and seeks to advance LGB rights.
The Claimant’s tweets about the LGB Alliance led to a number of critical tweets directed to Garden Court, which alleged that her views were not compatible with the rights of those who identify as transgender. Garden Court received complaints via their website, and Stonewall also complained. Garden Court stated publicly on Twitter that they would investigate the Claimant’s tweets. Their investigation concluded that two of the tweets were likely to offend the Bar Standards Board’s Code, and they asked the Claimant to remove them. The Claimant argued that it was detrimental to her to suggest publicly that the complaints needed investigation, and that the investigation’s conclusion was wrong.
Protection of the Claimant’s Beliefs
The case of Forstater v CGD Europe established that ‘gender critical belief’ is protected under section 10 of the Equality Act 2010. The Employment Tribunal in the case of Bailey concluded that all of the beliefs pleaded by the Claimant were protected under the Equality Act. The Tribunal stated:
“The Claimant’s beliefs, taken as a whole, in our finding pass the test of cogency, seriousness, cohesion and importance…Finally, we concluded that expressing hostility to Stonewall campaigning on the basis of gender self-identity did not seek to destroy the rights of others, in a way that would not be worthy of respect in a democratic society.”
The Tribunal found that, in sending the tweet about investigating the Claimant’s tweets, Garden Court had discriminated against her on the basis of her gender critical beliefs. They also found that the Claimant’s gender critical belief, and in particular her beliefs about Stonewall’s promotion of gender self-identification, and her belief that Stonewall were complicit in hostility towards gender critical feminists, had significantly influenced Garden Court’s finding that two of her tweets were “likely” to breach the Bar Standards Board’s Code. They found that this was victimisation on the basis of the Claimant’s beliefs.
The Tribunal awarded the Claimant £22,000, of which £2,000 was aggravated damages.
The Tribunal found that the claim that Stonewall instructed, induced or caused, or attempted to induce or cause, detriment to the Claimant did not succeed. In September, the Claimant announced via Twitter that she is appealing this aspect of the Tribunal’s decision.
Sources
Allison mcnally(@BluskyeAllison) “1/ BREAKING: I have appealed the decision of the ET dismissing my claim against Stonewall for causing a basic contravention of the Equality Act 2010. The appeal has been lodged at the EAT within the deadline. It will almost certainly be heard in the new year.”
8:58 AM, 20th September 2022. Twitter
Bailey v Stonewall Equality Ltd, Garden Court Chambers Ltd and Rajiv Menon QC and Stephanie Harrison QC, as representatives of all members of Garden Court Chambers, Employment Tribunals Case No: 2202172/2020, 2022
Forstater v CGD Europe, Center for Global Development and Masood Ahmed, Employment Appeal Tribunal. Appeal No. UKEAT/0105/20/JOJ,2021
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10. Employment litigation: Discrimination based on gender reassignment
V v Sheffield Teaching Hospitals NHS Foundation Trust and others, Employment Tribunals, Case Nos. 1806836/2020, 1803272/2021, 1803682/2021, 1805577/2021, 2022
The Claimant in this case, known as V, was a trans-identifying male who had been employed by Sheffield Teaching Hospitals NHS Foundation Trust in their catering department. V made a number of claims against the Trust, including direct gender reassignment discrimination, direct disability discrimination, unfavourable treatment because of something arising in consequence of disability, harassment related to gender reassignment, harassment related to disability, harassment related to sex or of a sexual nature, failure to make reasonable adjustments for disability, and victimisation.
Only one of V’s claims succeeded. This claim related to a question a manager asked the Claimant after another member of staff reported seeing the Claimant in the women’s changing room naked from the waist down. The Tribunal found that this was discrimination based on gender reassignment as the manager would not have asked the same question of a woman in the same circumstances.
The Tribunal stated:
“A concern about the Claimant’s state of undress in the changing rooms was likely to be connected with the fact that she is a transgender woman… It did not seem to the Tribunal likely that there would have been a concern about a cisgender woman in a state of undress while changing in such a changing room.”
To make a finding of discrimination based on gender reassignment, the Tribunal has to compare the Claimant with someone who has the same characteristics as the Claimant, but who does not identify as transgender.
In a blog for Legal Feminist, employment barrister Anya Palmer suggests that the comparator in this case should be a man who does not identify as transgender, and not a woman. She states:
“There is no difference in treatment once the proper comparator is used. Any report of a man making comments to female colleagues about removing his underwear and then seen naked from the waist down in the women’s changing room would have given rise to the same concern.”
Sources
Anya Palmer, ’Sex matters in drawing comparisons How a false assumption led an employment tribunal to wrongly find an NHS Trust guilty of discrimination’, Legal Feminist, 7 August 2022
V v Sheffield Teaching Hospitals NHS Foundation Trust and others, Employment Tribunals, Case Nos. 1806836/2020, 1803272/2021, 1803682/2021, 1805577/2021, 2022
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11. Censorship of academic research
The Press Gazette has reported that, in June this year, researchers at the University of Central Lancashire (UCLAN) published a research report which included recommendations about the way in which journalists should describe transgender defendants in criminal trials. The report recommended that the biological sex of transgender defendants in proceedings relating to offences in which biological sex is a significant factor, such as sexual offences, should be made clear in media reports. The report was published on UCLAN’s website but was quickly removed after complaints of transphobia.
The research report suggests that journalists’ use of female pronouns to describe males who identify as transgender, which occurs even in relation to the offence of rape, is encouraged by the approach of the courts.
Guidance for prosecutors and for judges both state that defendants who identify as transgender should be referred to in court using their preferred pronouns. Both institutions operate on the basis of self-identification of ‘gender identity’. This is discussed in detail in a Policy Exchange publication about transgenderism and criminal justice institutions published in May this year.
The Crown Prosecution Services Trans Equality Statement states that:
“Prosecutors should address Trans victims, witnesses and defendants according to their affirmed gender and name, using that gender and related pronouns in all documentation and in the courtroom.”
Guidance for judges contained in the Equal Treatment Bench Book, the purpose of which is to guide judges in treating all participants in court proceedings fairly, advises similarly but allows for some exceptions, such as where the witness is a victim of domestic abuse or sexual violence. The exceptions to the Bench Book’s general approach were only introduced in December 2021 and may not yet be widely understood.
The Independent Press Standards Organisation (IPSO) recommends the use of preferred pronouns for individuals who identify as transgender, and states that an individual’s ‘gender identity’ must not be referenced unless it is genuinely relevant to the story. This would not seem to preclude journalists using sex-based pronouns when reporting on trials relating to sexual offences or other offences in which biological sex plays a significant role, particularly in view of the fact that judicial guidance now explicitly recognises the right of victims of these kinds of offences to describe trans-identifying defendants using pronouns based on sex rather than ‘gender identity’.
Sources
Crown Prosecution Service, 'Trans Equality Statement', July 2019
Independent Press Standards Organisation, 'Guidance on researching and reporting stories involving transgender', October 2016
Judicial College, ‘Equal Treatment Bench Book’, February 2021 edition, July 2022 revision
Bron Maher, ‘University removes 'transphobic' court reporting guidelines from website’, Press Gazette, 1 July 2022
Maureen O’Hara, ‘Transgenderism and policy capture in the criminal justice system: Why criminal justice policy needs to prioritise sex over gender identity’, Policy Exchange, 2022
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12. Proposed new Youth Custody Service policy
 On 1st August, The Times reported that it had seen excerpts from the Youth Custody Service’s draft ‘Transgender Guidance’, which is due to be finalised and published later this year. The Times stated that the draft policy would allow biological males who identify as transgender who are in the youth secure estate to be housed in single-sex units for girls.
The Times reported that the draft guidance states that, in the first instance, the Youth Custody Service would try to place a child who identifies as transgender in a secure children’s home or a secure training centre rather than a young offender institution. This is because secure homes and training centres are mixed sex, while young offender institutions are just for boys and young men. The draft guidelines suggest that this will allow children and young people who identify as transgender “to feel more comfortable expressing their transgender identity in a mixed environment rather than in a secure setting where they are only mixing with one gender.” If a child is placed within a mixed establishment with single-sex units for boys and girls, they could be placed “in the unit of the acquired gender”, subject to a risk assessment.
Young Offender Institutions (YOIs) are a type of secure accommodation for boys and young adult males who have committed criminal offences. Secure training centres (STCs) provide secure accommodation for children of either sex up to the age of 17 who have committed criminal offences and are considered vulnerable. Secure children’s homes (SCHs) are a type of secure accommodation for vulnerable children of either sex aged 10 -17. They house both young offenders and children held on welfare grounds for their own protection.
Girls are a very small minority in the youth secure estate. Ministry of Justice sources informed The Times that currently there are 14 girls in the estate and 485 boys. They also stated that there are currently no young people who identify as transgender in the estate.
The Times reports that the Women's Rights Network expressed concerns about the proposed policy relating to the safety, dignity and privacy of girls.
A report published in 2019 by the Independent Inquiry into Child Sexual Abuse about safeguarding from child sexual abuse in the youth secure estate concluded that:
“Children were not always clear or confident about the appropriateness of behaviours between children. They had to decipher and negotiate the different rules and boundaries of behaviour that each establishment enforced…These ‘norms’ in the secure environment had implications for how children would respond to sexual abuse and sexually inappropriate behaviour experienced by themselves or others in these settings, and if and what they would report.”
The Ministry of Justice told The Times that a biological male who identifies as transgender who is considered high risk would not be housed in mixed accommodation or in a single-sex unit. They stated that those who had committed serious offences would ‘most probably’ still be held in a young offender institution.
Sources
James Beal, ‘Trans plan for young offenders raises concerns for girls’ safety’, The Times, 1 August 2022
Independent Inquiry into Child Sexual Abuse, 'Safe inside? Child sexual abuse in the youth secure estate', February 2019
Charlotte McLaughlin and Rory Tingle, ‘Trans criminals could be put in single-sex units based on their 'acquired gender': Concern over draft plan that could see male-born youth offenders aged 10 to 18 housed with young girls’, Mail Online, 1 August 2022
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13. Revised guidance on the participation of trans-identifying males in women’s sports: International and UK sporting bodies
 During the last two years a number of international sporting bodies have revised their policies to prevent the participation of trans-identifying males in women’s sports on the basis that their participation is not compatible with fairness or with women’s safety, due to the physical advantages which result from male puberty and higher testosterone concentration. In the UK, both Rugby Football Union and Rugby Football League followed suit and revised their polices in August this year.
The approach of UK sporting bodies concerning the participation of trans-identifying males in women’s sports is shaped, in part, by international sporting bodies.
The International Olympic Committee (IOC) published the ‘ IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations’ in 2021. The Framework states that it is within the remit of each sports’ governing body to determine its own policies, taking into account the nature of each sport. At the same time, it encourages sporting bodies to permit trans-identifying males to participate in women’s sport to the maximum extent possible where this is compatible with fairness. It adopts the principle of ‘no presumption of advantage’.
The International Federation of Sports Medicine (FIMS) and the European Federation of Sports Medicine Associations (EFSMA) issued a Joint Position Statement in 2021 in response to the IOC’s Framework, questioning the ‘no presumption of advantage’ approach. The position statement says, “The new IOC framework mainly focuses on a particular human rights perspective, and the scientific, biological or medical aspects are not considered…there is little doubt that high testosterone concentrations, either endogenous or exogenous, confer a baseline advantage for athletes in certain sports.”
Revised FINA Policy
FINA are the international federation recognised by the International Olympic Committee for administering international competitions in Aquatics. In response to the IOC Framework and the Joint Position Statement of FIMS and EFSMA discussed above, FINA convened a working group “to consider the best available statistical, scientific, and medical evidence concerning sex differences in sports performance, and any associated male sex-based advantage.”
In June, they revised their policy on the inclusion of trans-identifying males in women’s competition categories. The new policy prevents those who have gone through male puberty from participating in women’s competitions.
The policy states that it is committed to the separation of Aquatics sports into men’s and women’s categories according to sex, and to providing the opportunity for transgender and 46 XY DSD athletes to compete in Aquatics competitions pursuant to eligibility criteria that are consistent with and do not undermine FINA’S goals for the women’s category.
A DSD is a Disorder of Sexual Development in which the external appearance of a person’s genitalia is discordant with his or her internal sex organs (testes and ovaries). Those with 46 XY DSD are chromosomally male but may have external genitalia which appear female, or are ambiguous.
Under the new FINA policy trans-identifying males may not compete in women’s events if they have experienced any part of male puberty beyond Tanner Stage two or before age 12. Tanner stage 2 is the beginning of the physical changes associated with puberty.
World Rugby Policy
World Rugby introduced new guidelines in October 2020 which state that despite the suppression of testosterone, even for a prolonged period of time, biological differences prior to suppression “allows substantial and meaningful differences to remain. This has significant implications for the risk of injury in rugby.”
Revised International Rugby League (IRL) Policy
In a statement issued in June this year, the International Rugby League said that until further research is complete, biological males who identify as transgender will not be allowed to play in women’s international rugby league matches.
The UK Sports Council published revised guidance in September 2021 for sports governing bodies across the UK. It concluded that fairness cannot be reconciled with biological males’ participation in the female category in ‘gender affected’ sport, by which they mean sports in which the biological differences between the sexes play a significant role. The Council noted that this principle acknowledges the average differences in strength, stamina, and physique between the sexes, and stated that it is in keeping with the provisions of the Equality Act 2010.
The Council concluded that ‘gender affected’ sports will now need to decide whether to prioritise transgender inclusion or fair and safe competition for females, as they cannot do both. They suggested that sports bodies should offer more than one version of their sport to enable the inclusion of those who identify as transgender where this is possible, while maintaining separate categories based on biological sex.
Revised rugby policies in the UK and Ireland
Since the new guidelines introduced by World Rugby, the International Rugby League, and the UK Sports Council, new policies which are aligned with the guidance of the international rugby bodies have been introduced by the Rugby Football Union Council and the Rugby Football League, which represent English rugby, the Welsh Rugby Union, and the Irish Rugby Football Union, which is an All-Ireland body. The new policies of all these organisations state that participation in contact rugby within the women’s category is limited to those whose sex was recorded as female at birth.
Scottish Rugby has not amended its policy. It retains a policy published in 2018 which states that those identifying as ‘transgender females’ who wish to play in the women’s category must demonstrate to an expert panel that the testosterone in their serum has been less than 5 nmol/L continuously for a period of at least 12 months, and that it remains at this level for as long as they continue to compete in the female category.
Revised British Rowing policy
In September this year, British Rowing, the national governing body for the sport of rowing, revised its 2016 ‘Transgender and Transexual Policy’.
The revised policy, which will be reviewed every 12 months, requires biological males over the age of 16 who identify as transgender and wish to compete in the women’s category to provide medical evidence to an eligibility panel to show that their serum testosterone concentration has been less than 5 nmol/L continuously for a period of at least the previous 12 months, or medical evidence to show that they have undergone surgery for the purpose of transitioning. In relation to those under 16, the eligibility panel may approve an application without medical evidence if the child has not yet started puberty.
Sources
British Rowing, ‘Trans and Non-Binary Inclusion Competition Policy and Procedures’, May 2022
FINA, ‘Policy on Eligibility for the Men’s and Women’s Competition Categories’, June 2022
International Olympics Committee, ‘IOC Framework on Fairness, Inclusion and Non-Discrimination on the Basis of Gender Identity and Sex Variations’, document undated
International Rugby League, ‘Statement on Transgender Participation in Women’s International Rugby League’, 21 June 2022
Irish Rugby Football Union, ‘IRFU Updates Transgender Policy’, 10 August 2022
Fabio Pigozzi et al, ‘Joint position statement of the International Federation of Sports Medicine (FIMS) and European Federation of Sports Medicine Associations (EFSMA) on the IOC framework on fairness, inclusion and non-discrimination based on gender identity and sex variations’, BMJ Open Sport & Exercise Medicine, Vol 8, Issue 1, 2021
Reuters, ‘England's Rugby Union and Rugby League ban transgender players from women's game’, 29 July 2022
Rugby Football League, ‘Gender Participation Policy’, 1 August 2022
Rugby Football Union, ‘England - Rugby Gender Participation Policy’, 1 August 2022
UK Sports Councils, ‘The UK's Sports Councils Guidance for Transgender Inclusion in Domestic Sport’, September 2021
Welsh Rugby Union, ‘WRU updates gender participation policy’, 07 September 2022
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14. Former Attorney General’s Keynote Speech at Policy Exchange on 10 August
‘Equalities and Rights: Conflict and the Need for Clarity’
Part of the former Attorney General’s speech at Policy Exchange on 10 August this year addressed the operation of the Equality Act 2010 in relation to single sex spaces and services for women and to school polices relating to children and young people who are what she described as “gender questioning”.
Braverman stated that she did not advocate repealing the Equality Act, but that she is concerned about incorrect interpretations of its provisions. She noted that businesses and institutions are currently misinterpreting the Act and applying “a perceived moral obligation to go beyond the law, when it comes to equality”. She stated this particularly applies to how those who claim the protection of ‘gender reassignment’ as set out in the Gender Recognition Act 2004 are assisted while also supporting those who seek the protection of rights defined by biological sex. Braverman’s aim was to provide clarity on the law.
Braverman noted that, for the purposes of Gender Recognition Certificates, there is no system of self-identification in England and Wales, but some service providers behave as if they have a legal duty to admit biological males who identify as females into women-only spaces. She stated that this view is not in accordance with the law.
Braverman noted that paragraphs 26 and 27 of schedule 3 of the Equality Act permit “women only” and “men only” services, provided that they are a proportionate means of achieving a legitimate aim. She said:
“In law, single sex services are intended for one sex only: that is the very thing permitted by schedule 3. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are XY chromosome adults using it, however they define themselves personally, it becomes mixed-sex. The existence of a Gender Recognition Certificate can create a legal position but cannot change biological reality.”
Braverman also stated that schools often incorrectly believe they are under a legal obligation to treat children with gender dysphoria “according to their preference, in all ways and all respects, from preferred pronouns to use of facilities and competing in sports.” She noted that this sometimes takes place without parental consent, and stated:
“Schools should consider each request for social transition on its specific circumstances, and individually, and any decision to accept and reinforce a child’s declared transgender status should only be taken after all safeguarding processes have been followed, medical advice obtained and a full risk assessment conducted, including taking into account the impact on other children.”
Braverman went on to discuss what she saw as the influence of political ideologies in schools which “support unthinking and absolute approaches to gender” and are “outside the intention or scope of the Equality Act”. She stated that such ideas are being promoted under the lens of diversity and inclusion, despite Department for Education (DfE) guidance which states that, “It is important to be clear what are scientifically tested and established facts, and what are questionable beliefs.”
The organisation Mermaids made a statement in response to the speech, which said:
“The contents of Braverman’s speech do not reflect our understanding of the Equality Act 2010 or the realities of being a trans child in schools. Her speech is not legally binding on schools and does not mark a change in school’s duties toward trans children in their care.”
Sources
Department for Education, ‘Guidance Political impartiality in schools’, 17 February 2022
Mermaids, ‘Trans rights in schools: Mermaids’ statement’, 10 August 2022
Policy Exchange, 'Keynote Speech by Rt Hon Suella Braverman QC MP – Equalities and Rights: Conflict and the Need for Clarity', 10 August 2022’
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15. Gender Recognition Act (GRA) Reform Bill, Scotland
 In March, the Scottish Parliament introduced the Gender Recognition Reform (Scotland) Bill with the aim of changing the process by which people can acquire a Gender Recognition Certificate.
The Gender Recognition Act 2004 (GRA) allows trans-identifying people in the UK to obtain a Gender Recognition Certificate which changes their legal gender, provided that they meet the criteria specified in the Act. These include a medical diagnosis of gender dysphoria and evidence of having lived in the ‘acquired gender’ for a period of a least two years. The Scottish government’s Bill would amend the GRA in Scotland to remove the current assessment criteria and introduce a system of self-identification. There would be no requirement for a medical diagnosis, and the period of time for which an applicant must live in the ‘acquired gender’ would be reduced to three months. The age at which people could change their legal gender would be reduced from 18 to 16.
The Equality and Human Rights Commission, who regulate the Equality Act 2010, have a duty to provide independent advice to governments on how new laws, and proposed changes to the law, might affect equality legislation. On 26 th January 2022 the Commission wrote to the Scottish government to express concerns about the potential consequences of Scotland’s proposals. Their letter noted,
“The potential consequences include those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia.”
On 22 nd September 2022 the Commission wrote to the Scottish and UK governments expressing concerns about the potential implications of a different process for obtaining legal gender recognition in one nation of the UK for the operation of the Equality Act 2010 across Great Britain.
In May 2022 Malcolm Clark, a co-founder of the Lesbian, Gay and Bi-sexual Alliance (LGB Alliance) gave evidence to the Scottish Government Equality and Human Rights Committee about the proposed reforms. He expressed the Alliance’s view that prioritising gender over sex would mean that people who are same-sex attracted would no longer be able to protect their sex-based rights. He was particularly concerned that lowering the age for obtaining a Gender Recognition Certificate to 16 would mean that younger teenagers, many of whom were coming to terms with their same-sex attraction, would rush towards transitioning
The proposed reforms are opposed by women’s groups such as For Women Scotland, who were founded in 2018 out of concern about how the proposed reforms would impact women’s rights. On the 6 th of October, they organised a women’s rally outside the Scottish Parliament in Edinburgh.
Stage 1 of the Bill, General principles, when committees will examine the Bill, is scheduled for 27 th October.
Sources
Equality and Human Rights Commission, ‘EHRC urges governments to work together on gender recognition reform’, 5 October 2022
Equality and Human Rights Commission, Letter to Nadim Zahawi, 20 September 2022
Equality and Human Rights Commission, Letter to Shona Robison, 26 January 2022
Equality and Human Rights Commission, Letter to Shona Robison, 20 September 2022
For Women Scotland, 'Women’s Rally, October 2022', 8 October 2022
LGB Alliance, ‘The LGB perspective at Holyrood’, undated
The Scottish Parliament, Gender Recognition Reform (Scotland) Bill
UK Parliament, 'Gender Recognition Act reform: consultation and outcome', 18 February 2022
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16. Mermaids to be investigated by the Charity Commission over safeguarding concerns
 Following an investigation by The Telegraph in September, the charity Mermaids is under investigation by the Charity Commission over concerns that they are giving breast binders to children without parents’ knowledge. Shortly after the Charity Commission’s investigation was announced, one of Mermaids’ trustees resigned after it was revealed that he had spoken at a conference hosted by an organisation that promotes services for paedophiles. This was followed by revelations that a Mermaids employee had posed naked for photographs for a magazine and posted a photo of himself dressed as a schoolgirl on social media.
On 25 th September, The Telegraph published a report about an investigation into Mermaids’ activities carried out by an adult posing as a 14-year-old girl who wanted to transition to a boy. She says that Mermaids were giving breast binders to children without parental consent or knowledge. This is to be investigated by the Charity Commission.
Breast-binders are used to flatten the breasts. A study of the health impacts of breast binding on adults published in 2017 found that the potential effects included rib fractures, back pain, chest pain, rib or spine changes, bad posture, shoulder pain, shoulder joint ‘popping’, muscle wasting, numbness, headache, overheating, fatigue, weakness, light-headedness or dizziness, coughs, respiratory infections, shortness of breath, heartburn, abdominal pain, digestive issues, breast changes, breast tenderness, scarring, swelling, acne, itch, skin changes and skin infections.
The Telegraph also reported that Mermaids had told their investigator that the effects of puberty blockers are reversible.
On 4 th October, The Times reported that one of Mermaids’ trustees, Dr Jacob Breslow, had resigned, after it was revealed he had spoken at a conference hosted by a group called ‘B4U-ACT’, which promotes services for paedophiles. Dr Breslow is an assistant professor of gender and sexuality at the London School of Economics.
On 5 th October, Mermaids released a statement concerning Dr Breslow, which said:
“… it was only on the 3rd October that we became aware of his participation in a 2011 conference that would have disqualified him from becoming a trustee. Once notified, we immediately launched an investigation and Dr Breslow tendered his notice that same day.”
On 11 th October The Times reported that parents of children who have been referred to Mermaids had complained to the Charity Commission about Darren Mew, who is employed by Mermaids as a digital engagement officer. Mew had posted sexualised pictures of himself dressed as a schoolgirl on Instagram and had posed naked for the publication Haus Magazine. The Times reported that one of the parents said that she had serious safeguarding concerns about Mew, given the explicit content of the pictures and Mew’s role at Mermaids, which enables him to attend residential events.
Sources
James Beal, Lucy Bannerman, 'Trustee of the transgender charity Mermaids quits after speech to paedophile aid group', The Times, 4 October 2022
Hayley Dixon, ‘Exclusive: Trans charity Mermaids giving breast binders to children behind parents’ backs’ The Telegraph, 25th September 2022
Fariha Karim, ‘Trans charity worker ‘posed as schoolgirl in explicit pictures’’, The Times, 11 October 2022
Mermaids, 'Statement regarding trustee appointment', 5 October 2022
Sarah Pietzmeir et al, ‘Health impact of chest binding among transgender adults: a community-engaged, cross-sectional study’, Culture, Health & Sexuality: An International Journal for Research, Intervention and Care, Volume 19, 2017, Issue 1, 64-75
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17. Crown Prosecution Service Consultation on the Deception as to Gender section in the Rape and Serious Sexual Offences (RASSO) legal guidance
 The Crown Prosecution Service (CPS) is conducting a public consultation on a proposed revision to its legal guidance relating to the sexual offence of ‘deception as to gender’. This relates to situations where someone who identifies as transgender is alleged to have deceived a sexual partner about his or her biological sex.
The elements of most sexual offences include lack of consent to the sexual activity on the part of one party and the absence of reasonable belief in consent on the part of the other party. There are some exceptions to this, such as sexual offences against children, who cannot give valid consent to sexual activity.
Consent in relation to sexual activity is defined in section 74 of the Sexual Offences Act 2003, which states,
“For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”
In the case of R v Justine McNally the Court of Appeal found that, depending on the circumstances, deception as to ‘gender’ could vitiate consent to sexual activity. The court’s use of the term ‘gender’ in this context was a reference to biological sex. The court upheld the conviction of a young woman for the offence of assault by penetration because she had claimed to be a boy during a relationship with another young woman (the complainant in the case) who had believed she was in a relationship with a boy. The complainant said she would not have consented to the sexual activity if she had known that this was not the case. The court found that her freedom to choose whether to have a sexual encounter with a girl had been removed by the defendant’s deception and that the deception had therefore vitiated her consent.
As with the Court of Appeal in the case of McNally, the CPS use the term ‘gender’ to refer to biological sex. In relation to assessment of whether ‘deception as to gender’ has occurred, the current CPS guidance states:
“Whether there has been deception as to gender will require very careful consideration of all the surrounding circumstances including:
How the suspect perceives his/her gender;
What steps, if any, he/she has taken to live as his/her chosen identity; and
What steps, if any, he/she has taken to acquire a new gender status.”
These questions all relate to suspects’ self-perception of their gender identity and do not address the question of the extent to which individuals who identify as transgender have a responsibility to take account of the significance others may place on the biological sex of potential sexual partners.
A similar approach is evident in the proposed revised guidelines, where it is further developed. These guidelines state,
“If a suspect genuinely perceives their gender identity to be different to their birth assigned sex or if their gender identity is in a state of flux and/or emerging, this may be evidence there was not a deliberate deception.
The following type of evidence may assist to establish how the suspect perceived their identity:
- The steps the suspect has taken to live consistent with their gender identity.
- The steps the suspect has taken to acquire a new legal or administrative gender recognition.
Possession of a GRC proves that an individual has been legally recognised in their affirmed gender and is strong evidence to show that the individual is living in their affirmed gender.
However, a person’s gender identity or affirmed gender is not dependent upon them obtaining a GRC and the vast majority of trans people do not obtain a GRC…”
The revised guidelines summarise the CPS view of the circumstances in which deception as to gender can vitiate consent as follows:
“On the facts of the case in McNally, the ruling that deception as to gender can vitiate consent applies to situations where a person falsely purports to be of a different gender (McNally was a girl who presented herself as a boy, using a male avatar “Scott” online). Although the courts have not addressed the point, the ruling would appear to be capable of applying broadly to include, for instance, deception as to birth gender/assigned biological sex, gender history or trans status. There is no duty to disclose gender history, but in some circumstances suspects who are living in a new gender identity at the time of the alleged offending (as opposed to falsely purporting to be a different gender), including those who have obtained a GRC, may still be capable of actively deceiving a complainant as to such matters relating to their gender. For example, where a suspect falsely asserts that their gender identity is the same as their birth gender/assigned biological sex; or lies in response to questions about their gender history; or denies being a trans man or a trans woman”.
The consultation closes on 19 December 2022.
Sources
Crown Prosecution Service, ‘Deception as to Gender: proposed revision to CPS legal guidance on Rape and Serious Sexual Offences (RASSO), Chapter 6 – Consent’, 26 September 2022
Crown Prosecution Service, ‘Rape and Sexual Offences - Chapter 6: Consent’, Legal Guidance, Sexual offences’, 21 May 2021
Sexual Offences Act 2003
Case law report
R v Justine McNally [2013] EWCA Crim 1051
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