Victoria Hewson is a solicitor and co-founder of Radical, a campaign for truth and freedom in the gender recognition debate. She and Rebecca Lowe, her co-founder, alternate authorship of this column on trans, sex and gender issues.
Four weeks ago, I wrote about the judicial review of the “trans inclusion toolkit”, which had been published by Oxfordshire County Council to provide guidance for schools in the county.
A judge had found the case legally arguable, and it was to proceed to a full hearing later in the year.
Days later though, the council decided that, rather than defend its guidance in court, the toolkit would be withdrawn, so the judicial review would not proceed.
Now, another piece of educational guidance from a public authority has also been withdrawn, after another judicial review process was initiated by another concerned schoolgirl.
On April 30, the Crown Prosecution Service (CPS) took down its guidance on LGBT+ hate crimes in schools, just days after a ‘letter before action’ was issued.
This CPS guidance purported to advise schools on policies and practices, in order to help them comply with equality law and to prevent “anti-LGBT+ hate crimes” being committed.
According the guidance’s list of categories, these crimes include “ostracising and excluding” children from friendship groups for “reasons of sexual orientation, perceived sexual orientation, trans identity or perceived trans identity”.
In both cases, rather than having to argue in court for the legality of their interpretation of the relevant laws, the authorities concerned have simply withdrawn their guidance.
These cases suggest that, left unchallenged, public authorities have been all-too-willing to adopt ideological positions on gender identity, which they themselves seem to be aware will not stand up to legal scrutiny.
There are still innumerable examples of policies and guidance that have been issued by public bodies that should also be reviewed for compliance with law (including local authorities using similar ‘toolkits’ to the one scrapped by Oxfordshire).
High-profile examples include the Equal Treatment Bench Book of advice for judges, which advises they to refer to defendants who appear before them by those defendants’ preferred pronouns, as “self-definition is the most important criteria (sic)”.
As a result of judges following this advice, the Law Society Gazette has reported that “[a]t least one victim of violence by a transgender woman has been reprimanded in court for using male pronouns while describing the attack.
Finding the defendant guilty, the judge refused the victim compensation, saying that when asked to refer to the defendant as ‘she’, the victim had done so with ‘bad grace’ or continued to use ‘he’”.
The Bench Book also includes some highly contestable guidance on allocating transgender prisoners (including those who do not have a Gender Recognition Certificate, legally recognising them as a member of the opposite sex) accommodation in the part of the prison estate that “corresponds to their gender identity”.
Many others examples were listed by Baroness Nicholson in her letter to Liz Truss on 29 April.
The surge of legal actions concerning the legal status of ‘gender identity’ vindicate Truss’s view (recently announced to the Women and Equalities Committee) that intervention is needed to clarify the law as it applies to single-sex spaces.
Indeed, it seems that Truss has already made a start on this: she intervened swiftly to remove Government Equalities Office branding, and implied endorsement, from guidance issued by Equaliteach (an equality training and consultancy organisation) that urged schools to allow children to use the facilities that matched their identified gender.
Worryingly, Equaliteach claimed that its guidance had been approved by officials working for the Minister for Women and Equalities, which perhaps illustrates the scale of the task ahead of her.
In its statement on the withdrawal of the toolkit, Oxfordshire County Council noted that it would follow the national guidance that is due to be published soon by the Equality and Human Rights Commission.
This guidance, and all other guidance and policy for which central and local government authorities are responsible, must clarify the applicability of the single-sex exemption under the Equality Act that allows service providers to make a space or service available to women (or men) only, based on sex.
This provision has been widely misunderstood and misstated, with the effect of endangering the privacy and safety of women and children (including trans-identifying children) and undermining basic principles of consent.
The confusing wording of the Gender Recognition Act is not helpful in this regard.
Clear guidance on how the provision of single-sex services is intended to be protected by the Equality Act would give confidence to public and private service providers and users – confirming that they are not breaking the law by providing spaces in which women are not compelled to be, without their consenting, in privacy-infringing situations with biological men.
Failure to provide formal clarification about these matters brings serious risks.
It not only invites further legal challenges from women and children, on the grounds that their human rights are not being respected – it also risks undermining the respect for, and safety of, trans people that is unquestionably due to them.