Kate Coleman is Director Keep Prisons Single Sex.
In February 2021, the Judicial College published a revised edition of the Equal Treatment Bench Book. It’s been significantly updated, at almost double the length of the previous edition.
The Bench Book aims to advance fundamental principles of fair treatment and equality. It suggests steps for judges to redress inequality arising from difference or disadvantage, to ensure fairness for all those engaged in legal proceedings.
While not intended as an expression of the law, it states “judges [and other court officiants] are encouraged to take its guidance into account wherever applicable. [The Bench Book] is increasingly cited in judgements and by practitioners as to the approach to be adopted”.
Chapter 12 is entitled “Trans People”. Gender reassignment is a protected characteristic in the Equality Act, and the law is clear that no individual should be discriminated against based on gender reassignment. The inclusion of this chapter is therefore appropriate.
However, in common with much current policy and guidance across public and private sectors, this chapter is steeped in the ideology of gender identity, which is unquestioningly presented as uncontested fact. This “institutional capture” has been comprehensively discussed elsewhere.
The Bench Book goes far beyond appropriate and reasonable steps to ensure that transgender individuals engaged in legal proceedings don’t suffer disadvantage and are treated with respect and assisted in participating fully. Instead, the law is misrepresented, with judges urged to act according to these misrepresentations.
The first inaccuracy occurs early in Chapter 12, and informs much of what follows: “The Gender Recognition Act (2014) (‘GRA’) enables transgender people to change their legal gender by applying to the Gender Recognition Panel for a Gender Recognition Certificate (‘GRC’). […] A person who has been issued with a full GRC is entitled to be recognised in the gender stated on their certificate for all purposes…”
This ignores provisions in the GRA that allow, for example, a male in possession of a GRC stating that legal recognition of female gender has been obtained, to be lawfully treated differently from biological females. Possession of a GRC expressly does not affect recording of parenthood, for instance. The possibility of being convicted of a crime defined as one that only a male can commit is unaffected by possession of a GRC, as is the possibility of being the victim of a crime defined as one of which only a female can be the victim. Primogeniture is unaffected. Males with a GRC can be excluded from “gender affected sports” for females where necessary, to ensure fair competition and/or competitor-safety.
The Judicial College also ignores the single-sex exceptions in the Equality Act, which permit males to be excluded from single-sex spaces where this is a proportionate means to a legitimate aim.
The Judicial College gets the GRA wrong again in respect of section 22 of the GRA, which makes it a criminal offence to disclose “protected information” that an individual has obtained or applied for a GRC, where that information was acquired in an official capacity. The Bench Book is correct that it is not an offence to disclose such protected information where required for court proceedings. However, Section 22 includes other circumstances where protected information may be disclosed, including for investigating crime, and for the purposes of the social security or pension system — which The Bench Book disregards.
Most importantly, disclosing information concerning someone’s transgender status can only be criminal if that information was acquired in an official capacity. This is contrary to the widespread belief, often reflected in policy and guidance, that it is an offence to reveal that someone is transgender, regardless of the basis on which this information was acquired. Moreover, section 22 self-evidently does not apply to information about a transgender person who has never applied for a GRC.
This misunderstanding of section 22 creates a chilling effect. Citing section 22, The Bench Book states “the court may consider making reporting restrictions under Section 4 of the Contempt of Court Act (1981) to prevent disclosure of a transgender person’s previous name and transgender history, or it may direct a private hearing”.
Judges are instructed in the book that “deadnaming” (using or referring to a transgender person’s previous, now rejected name) must be avoided, as it is “highly disrespectful and may well be inhibiting and possibly humiliating to a witness”. Again, support for this is claimed, questionably, from Section 22.
Judges are informed that it is “rare” that the biological sex of a transgender person will need to be referred to in court. The motives of those who seek to do so are disparaged: judges are advised that “It is important to be alive to the fact that the gender history of a person may be something an opponent litigant may seek to use in order to place pressure on them…”.
Reflecting a widespread tendency in policy and guidance (though not the law, which does not recognise self-ID) the Judicial College states that it should be possible to recognise a person’s gender identity and their present name for nearly all court purposes, regardless of whether they have obtained a GRC and without any further inquiry. Further inquiries are discouraged on the grounds that these would be “intrusive and offensive”, and (the book claims) may constitute a breach of the individual’s right to respect for private life under Article 8 of the European Convention on Human Rights.
The cumulative effect is that a person’s gender identity is to be accepted on the basis of self-ID, transgender people are to be considered to be the sex they identify as for all purposes, and referring to their former name or biological sex, or using pronouns appropriate to that sex, are potentially criminal acts. The motives of counsel who consider biological sex or transgender history to be relevant are viewed with suspicion. Reporting restrictions or private hearings are suggested.
The criminal justice system has been thoroughly captured, therefore, and is in thrall to gender-identity ideology. Even before this latest Bench Book was published, female pronouns and names were consistently used to refer to male offenders who identified as transgender, by defence, prosecution, judges, and witnesses, including when the male in question was on trial for serious sexual offences. All with questionable legal basis.
This matters fundamentally because it communicates a lie. It matters in court when victims and witnesses are instructed that the evidence they give must be “respectful of pronouns”. Victims of violent offences have been compelled to use female pronouns to refer to their male attackers. Males convicted of sexual offences against children have been referred to at trial as female. Where do the limits lie concerning who will be compelled to describe their male attacker as a woman?
Words are powerful, and the drip-drip effect of repeated reporting that serious violent and sexual offences have been committed by women distorts our understanding of the known differences between patterns of male and female offending . This affects our thinking about risk and safeguarding. Transparency and openness in judicial processes are important principles. It should only be in rare and carefully justified circumstances that the right to privacy requires reporting restrictions or a private hearing. Referring to biological sex, ‘misgendering’ or ‘deadnaming’ are not such circumstances.
The Judicial College, and the individuals who contributed to this edition, should be accountable for what is, at best, carelessness of the law. We are all equal before the law, but it appears that the Equal Treatment Bench Book would have it that some are more equal than others.