The limits of the second Lord Falconer thread

Lord Falconer has already published one thread on the decision by the UK Government to issue a Section 35 order to prevent the Gender Recognition Reform (Scotland) Act proceeding to Royal Assent.  It gained substantial attention. Our analysis is here.

Lord Falconer posted a second thread on 22 January, arguing again, though somewhat differently, that the Section 35 Order would most likely fail. Again this was quite widely shared, though slightly less than the previous one.

In this blog we look at Lord Falconer’s second thread and, again, conclude that the arguments presented do not stand up so well to close reading.  

Six of the 19 substantive tweets relate to prisons, which do not feature in the UK Statement of Reasons related to the s35 Order, and are therefore irrelevant to the justification for the use of that. We comment on these tweets also, however, as they will leave an inaccurate impresssion of the position on prisons policy, a subject we have repeatedly raised as a problem under the Bill and which has become suddenly very topical, once again.

Lord Falconer’s second thread is reproduced below, with our comments on each tweet or group of tweets as before.

Central to the disagreement between Holyrood and the UK Government on Gender Recognition is the extent to which self identification as the basis of a Gender Recognition Certificate puts women and girls at risk from predators.

Comment: The full list of issues raised in the Statement of Reasons is as follows:

  1. Adverse effects of different GRC regimes across the UK
  2. Adverse impacts resulting from increased risk of fraudulent applications
  3. Adverse effects in relation to the operation of the Equality Act 2010

    (a) Exacerbation of existing issues with the operation of the Equality Act 2010:
    i) clubs and associations (where exceptions apply in respect of sex but not gender reassignment
    ii) the operation of the PSED
    iii) equal pay
    iv) provisions where exceptions apply for both sex and gender reassignment

    (b) New issues [related to the effect of the reduction in age on the ability of single sex schools to remain single sex]

The risk to women due to the scope for fraudulent applications is one of the grounds raised by the UK Government, and relates to ground 2, and to 3 (a)(iv), which is one of the four sets of issues raised about the Equality Act. However, the UK Government statement of reasons does not present this as the only substantial reason that effects under the Equality Act matter, or argue that effects under this Act are the only ones that matter. Each element is presented as a relevant adverse effect in its own right. Given the thread is offered as a legal commentary, the assertion that one aspect is (by implication) legally ‘central’ is missing a legal argument.

In deeming this aspect central Lord Falconer appears to be responding to its prominence in the broader debate about the Bill, at least as much as to the UK grounds as formally set out.

@KemiBadenoch in her interview in Saturday’s Times identifies that risk as central to the blocking of the Bill. Opponents of the Bill argue that since it permits a GRC to be obtained on the say so of the Applicant it makes fraud and therefore predatory behaviour easier.

Comment: The reference here is to some relatively limited comments by Kemi Badenoch, as reported by the interviewer, in a longer, wide-ranging interview. A court will consider the full formal statement of reasons published by her colleague, the Secretary of State for Scotland. Arguments made elsewhere by ourselves or others will only be relevant insofar as they are reflected in the statement.

It does make fraud in obtaining the certificate easier, but Equality Law has carefully ensured that holding a GRC is not the key to whether a trans woman has access to a women only space which is the place it is feared a predator might go.

The Equality Act (reserved law) provides a trans women can be excluded from single sex services or spaces where this is a “proportionate means of achieving a legitimate aim.” It’s the organiser of the single sex space who determine what rule to apply.

Comment: Lord Falconer appears to concede that more fraudulent applications are likely under a self-declaration system; but appears unconcerned by this because he believes that organisers will be able to ignore whether or not anyone has a GRC, in managing a single sex space. He expands on this next:   

If allowing a trans woman into a safe space materially increases the risk to users of that space or deters them from using it excluding all trans women or some trans women is permitted irrespective of whether those excluded have a GRC.

For example a group counselling provider for the female victims of sexual assault could not allow any trans women (whether they hold a GRC or not) to attend if the provider judges other clients would not attend if a trans woman also attended.

This is the example given in the Equality Act Explanatory Notes to the relevant provision. If the question of whether an exclusion satisfied the proportionate means test was contested in any particular case that would be resolved by the courts.

Comment: This repeats, albeit at more length, the over-simplistic reading of this aspect of the Equality Act offered in Lord Falconer’s previous thread. Our previous commentary still applies:

The Bill will result in a larger and more diverse population of GRC holders. As argued by ourselves, Foran, and others, it is harder for service providers to exclude GRC holders, because a GRC prevents organisations from “seeing” a person’s (biological) sex in law, for the purposes of the Equality Act. The recent Haldane judgment put beyond doubt that a GRC has this effect.

This means that a GRC holder excluded from a single-sex service or space will be able to make a claim of direct discrimination on the grounds of gender reassignment in the courts. Service providers will be required to justify the person’s exclusion not because they are male (the actual reason) but because they are transgender (not the actual reason). The more often a provider expects such cases to arise, the more nervous they will be about having and enforcing policies based on applying exceptions. At least one law centre in Scotland, which is part Scottish Government funded, is actively seeking litigants to bring forward cases in relation to transgender rights, including access to single sex services.  

MurrayBlackburnMackenzie: The limits of the Lord Falconer thread

The last sentence of the final tweet above suggests providers must simply live with the risk of being taken to court, to find out when they can safely use the exceptions in the Equality Act for GRC holders in particular contexts. Lord Falconer does not acknowledge how lack of certainty for providers about how to apply the exceptions lawfully of itself has the potential here to cause adverse effects for those wanting and needing single sex services. The Statement of Reasons argues that with the larger, changed population of GRC holders providers may “worry about an increased risk of operational and/or legal challenges. This could lead to an increase in the number of transgender people accessing single-sex services, spaces and roles, and a potential chilling effect on existing and prospective providers, in effect disincentivising such provision.” It adds that people “may be more likely to self-exclude as a result of their perception that people of the other biological sex will be more likely to be present.”

Another example is the English prison service which allocates prisoners to a male or female prison based on their legally recognised gender, unless, balancing risks and welfare both of that prisoner and other prisoners in the estate, a different allocation is appropriate.

The choice of approach is adopted by the Prison Service to discharge their legal duty to provide a safe place for all prisoners in their custody.  It’s starting point as a matter of choice by the prison service is the legal gender which will be determined where relevant by a GRC.

Although the legal gender provides as a matter of Prison Service policy the starting point, it is neither determinative nor indeed referred to in the Equality Act. The test in that Act is not legal gender.     

Prison policy is not referenced in the UK Government Statement of Reasons.

We assume effects in English prisons may not have been raised because of the assumption that GRCs issued in Scotland would not have legal effect elsewhere in the UK. In all parts of the UK, separate Prison Rules govern placements, possibly complicating the relevance of the Equality Act in Scotland.

In any event, Lord Falconer fundamentally misrepresents prison policy in England and Wales, where a GRC does determine how prisoners are assessed for accommodation. The policy reflects case law and is not a ‘choice’. In (R (on the application of AB) v Secretary of State for Justice [2009] EWHC 2220 (Admin)) the judge held that a male to female trans prisoner with a GRC had to be transferred to the female estate. One of his index offences was the attempted rape of a woman.

Current Minstry of Justice policy states:

4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate/AP unless there are exceptional circumstances, as would be the case for biological women.

The Care and Management of Individuals who are Transgender UK Ministry of Justice/Prison and Probation Service 2019, emphasis added

This policy was upheld as lawful in a judicial review in July 2021, even though the ruling also recognised that women prisoners may ‘suffer fear and acute anxiety’ when housed with male prisoners.

On 25 January, the UK Government announced an update to its Transgender Prisoner Policy Framework. This states ‘transgender women who are in future sentenced to custody and have male genitalia or who have been convicted of sexual offences will not serve their sentences in the general women’s estate unless there are exceptional circumstances’ with such moves requiring Ministerial approval. It also states, ‘Transgender women without a Gender Recognition Certificate – i.e. who are not legally female – are initially sent to a male prison as a matter of course.’

In Scotland it would be for Scottish Prison Service to determine what their approach should be in the light of self identification GRCs.

The duty on Scottish Prison Service owed to prisoners in their custody to keep them safe will remain exactly as it is now.

They must make a risk assessment in each case of the risk to the prisoner to be allocated and to those in the allocated prison.  The Scottish Prison Service gave evidence to the Scottish Parliament that unlike England the GRC is not currently their starting point.

Lord Falconer then fails to recognise the risks to the operation of the Scottish Prison Service (SPS), as spelt out repeatedly during the Bill process by multiple organisations. Again, this is not relevant to the s35 Order, but the limitations of his analysis here merit noting.

The SPS reports that it has never had to deal with a GRC holder and therefore to deal with refusing such a person a move. Lord Falconer therefore makes no allowance for its policy here being untested, in contrast to that in England and Wales.

Under current SPS policy a GRC is not  treated as having a determinative effect. The SPS has not however always held this position. Earlier drafts of its current policy show it initially believed that GRCs determined prisoner placement, in line with UK case law. It has never explained it shifted from this position in finalising its policy. A response from the Cabinet Secretary for Justice today suggested that a current review of policy here by the SPS will continue well into this year, having first been trailed in December 2018 and expected to conclude last year.

Should the Bill as it stands proceed to Royal Assent, and the ease of obtaining a number of GRC in prison greatly increase, a policy that does not treat a GRC as defining sex for the purpose of prison accommodation decisions (as the MoJ policy does) is likely to face legal challenge, with at first sight a good chance of success. The current ‘GRC blind’ SPS policy would then collapse. As noted before, at least one law centre in Scotland is actively looking at the scope to bring cases in the general area of transgender rights.

On 14 January, the Scottish Sun reported on a serial sex offender who claimed that having changed his name by deed poll, he would be “going to the women’s hall in three months.” On 21 January the Mirror reported on a different male prisoner with a history of rape, housed in the Scottish male estate, also ‘demanding’ to be moved to the women’s prisons estate having changed his name to Claire. These cases may be coincidental; although it seems at least likely that awareness of the Bill has already raised prisoner expectations.

Nor is this expectation unrealistic: on 24 January, a male convicted in Glasgow on two counts of rape, both since 2016, who had become known as Isla from some point after initial arrest, was reported to have been placed in the women’s estate. No GRC appears to have been involved here and so the SPS appears to retain discretion to reverse this (in our view, indefensible) decision. If SPS policy aligned with the MoJ, possession of a GRC would require the SPS to start from the legal position that this person is female, with a default entitlement to be held with women. Invited on 25 January in the Scottish Parliament to direct the SPS not to place any male prisoner convicted of rape in a women’s prison, Keith Brown MSP, the Cabinet Secretary for Justice and Veterans, declined and stated his trust in the SPS to risk assess all cases appropriately (exchange reported in full in this piece).

The key point is that Equality Law now and Equality Law if the Scottish Bill becomes law equally requires a balance to be struck between the rights of a trans person to be respected in the gender of their choice and the rights of the wider population to be protected from threat.

The balancing of those two rights (whether the Bill becomes law or not) does not depend on a GRC but where on the facts the balance falls, in accordance with the proportionate means etc test. The Bill does not modify Equality Law (the relevant reserved law) in this respect.

Comment: See above. Lord Falconer fails to acknowledge that when deciding how to treat someone for the purposes of single sex services as defined under the Equality Act, it is expected to matter, unsurprisingly, whether they are female or male under that Act. A GRC of the appropriate sex makes exclusion from these services more complex for providers.

Lord Falconer’s view of preserved balance relies on his position that a GRC is irrelevant to the Equality Act, based on his contestable interpretation of the exceptions and his view that the parts of the Act with no exceptions are, in effect, expendable to the case. He does not address a different point about balance, in the Statement of Reasons, that “The 2010 Act as a whole was carefully drafted in the light of, and reflecting, the specific limits of the 2004 Act and the relative difficulty with which a person could legally change their sex “for all purposes” (per s.9), including under the 2010 Act itself. The Bill alters that careful balance.”

On the second tweet, the Statement of Reasons does not assert that the Bill ‘modifies’ the Equality Act: see next set of comments.

The s35 power to block depends first on the Bill having modified “the law as it applies” to equality law, and second on the SoS having reasonable grounds to believe that those modifications would have an adverse effect on the operation of the law as it applies to equality law.

The first requirement is a legal question not dependent on the belief of the SOS. Has the law as it applies to the exclusion of trans people from single sex safe spaces been modified by the Bill? It’s doubtful that it has.

Lord Falconer muddles different strands of the UK argument here. As a result his conclusion on the first stage of the test is insubstantial.

Section 35 first requires that the Bill ‘make modifications of the law as it applies to reserved matters’. The second part of s35 requires ‘the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.’

He is right the first stage is a legal test not involving belief, but he fundamentally misunderstands how the UK government is making the case for that part. The UK argument, in paragraphs 6 to 12 of the Statement of Reasons, at this stage is simply that:

(a) the Bill amends, and so modifies, the GRA (it definitely does) and

(b) the GRA applies to reserved matters, because GRCs issued under it have legal effect on what sex a person is treated as in law, for reserved as well as devolved purposes (as everyone agreed was the case in 2004) and therefore

(c) the Bill modifies the law as it applies to reserved matters.

Any argument about how the Equality Act exclusions work is therefore irrelevant at this stage.

But even if it has it is difficult in the light of the legal test being unchanged to reasonably believe it has been effected adversely.

This is where the relevance of GRCs to the exceptions in the Equality Act is salient.

As argued above, Lord Falconer’s view on lack of adverse impact is based on the theory that the sex of a GRC holder for purposes of the Equality Act will have no effect on how they are entitled to be treated, in any of the contexts where sex matters under the Act.

Lord Falconer considers here only settings where he assesses the risk of predatory behaviour is relevant, where exceptions related to gender reassignment apply. As discussed above, in doing so he fails to take on board that it will be more complicated to exclude a person from a single sex service, once they have the relevant sex for that service in law, even if they also have the characteristic of gender reassignment.

Importantly, Lord Falconer ignores the large element of the UK Government’s stated concern, about effects on the operation of the Equality Act in contexts which are not covered by the gender reassignment exceptions. This includes single-sex associations. Our commentary on his previous thread highlighted this powerful first-hand account on the detrimental impact of single sex associations for lesbians. The affect on admissions to single-sex schools opening up GRCs to 16 and 17 years olds has potential to render an establishment mixed-sex (this did not appear to worry Lord Falconer in his previous thread, but that is an issue of policy rather than law). The UK Government statement also discusses the impact on equal pay comparators and the PSED.

There are other grounds referred to in the SOS’s reasons for blocking the Bill.  But if this ground fails in law the blocking will almost certainly fail because it is so clearly the main ground.

The court will consider the full statement of reasons put forward by the UK government, with its broader range of impacts. Each one is put forward by the UK government as an adverse effect in its own right.  A judicial review will consider whether it was reasonable for the Secretary of State for Scotland to believe there will be adverse effects. The assertion that one in particular will be make or break relies on inferring that a court would introduce a hierarchy into the reasoning, and designate something as a necessary ground to prove, when the UK government document itself does not present the issues in that way. The reason for assuming this will happen at least needs explaining.

End of thread.

As before the presentation is confident but closer reading throws up a series of questions.

The grounds for arguing each part of the case are muddled together, the large amount of material on prisons is irrelevant to the case and not wholly accurate, and the case is asserted as likely to be won or lost on only one of the several arguments made for adverse effects, without further legal explanation as to why that would be so. Further, Lord Falconer’s key argument, which relates to the application of the exceptions by service providers, rests on a simplistic understanding of the effects of a GRC in that context.

In his previous thread, Lord Falconer rested his argument heavily on an assertion of very small GRC numbers. In our commentary on that thread, we argued his approach to either the maths or the presentation of numbers was flawed, and that his figures substantially underestimated the likely number of GRC holders. We note that very low numbers have gone from being central to his analysis, to playing no part.

Further reading

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