The paper I mentioned that’s forthcoming in the Industrial Law Journal is ‘Single-Sex Spaces in the Workplace Following For Women Scotland’ and can be read here.

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I’m looking forward to catching up with you all at 4 pm today.

On the live, I’ll be going through the grounds of appeal in Peggie v NHS Fife.

If you’d like to read along, please follow this link.

See you shortly!

Hi everyone,

I’ve had a thoroughly restful break the last few weeks. Thank you to everyone who sent me kind messages.

Many of you will know that Sandie Peggie has been granted permission to appeal parts of the Tribunal judgment in her case.

I’m grateful to Sandie and her legal team for sharing the grounds of appeal with me. This means I’ll be able to do a deep dive into the nature of the appeal for people interested in following the case.

I’ll do a live this coming Sunday 30th of August at 4pm.

Looking forward to seeing some of you then!

Many of you will be aware that the last few weeks have been pretty intense for me. I’ve decided to take a short break from Substack over the summer to decompress.

I’m incredibly grateful to everyone who has sent me messages of support and to everyone who has supported me over the years.

I’m hoping that taking a little time away from everything will help me to recharge my batteries and swing back into things in the Autumn.

As ever,

Michael

Before this lecture, protesters disrupted the event for about 10 minutes. I’ve chosen not to include the recording of this disruption because it is my view that it distracts from the academic nature of the lecture series.

I have made the decision to cancel the remaining lectures in the series as I cannot guarantee for attendees, including students, that further disruption won’t occur..

The next lecture will be at 17.00 on Friday 5 June 2026 at Crisp Hollamby Lecture Theatre, H B Allen Centre, Keble College. The topic of Lecture 2 will be Single-Sex Spaces. All welcome!

The Panel:

Dr Julius Grower is Associate Professor of Law, University of Oxford and Ann Smart Tut…

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Forgive the hoarse voice! I’ve been recovering from the flu.

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Do we have a right to suicide? Is it good for us? Is it merciful? What happens when being alive itself becomes a choice?

Kathleen Stock needs no introduction. Her book, Do Not Go Gentle is an absolutely essential read for a…

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If you’re in Oxford next Thursday, 14 May, come along to the book launch event. I’m delighted to be joined by Akua Reindorf KC, Sarah Vine KC, Margaret Gribbon, and Dr Julius Grower for what promises to be a great conversation about the book.

I’m thrilled to announce that I’ll be releasing a video with the inimitable Doc Stock here at 5PM on Monday. We’ll be discussing her new book, Do Not Go Gentle: The Case Against Assisted Death, which you can buy here on Amazon. I really encourage you all to read it. And, if you haven’t already, grab Material Girls too. It’s essential for a good understanding of issues relating to sex and gender identity.

I thought it might be fun if we could get a bit of a conversation going afterwards, at 6PM. I’m going to start using more of our Chat feature. Obviously, we’ll have a thread on my conversation with Kathleen, but I also want to hear from you guys more broadly.

In case you’re wondering how Chat differs from Notes: I’ve been using Notes to talk to everyone on Substack, but Chat will just be for Knowing Ius paid subscribers. I’ll leave it open to free subscribers for a short while, but eventually I want it to be a rather more private forum. It’s where we can all talk to each other without the wider world watching us.

I want to hear what you’re reading, what you’re thinking about, what you’re writing. I also want your ideas about my future ideas and videos! It’s just going to be my go-to place for deciding what to do with this platform and our little ragtag community.

See you Monday!

To celebrate the imminent publication of my next book Sex, Gender Identity and the Law, I have the pleasure of sitting down with Akua Reindorf KC, specialist in equality and human rights law and former commissioner of the Equality and Human Rights Commission. We’re going to be answering subscriber questions, so please post questions in the comments below and like any of the questions you’d like us to answer. We’ve not pinned down a final recording date yet, but this should be published in the next few weeks and available for subscribers to view.

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I strongly encourage you all to read his new book, The End of the Gay Rights Revolution: How Hubris and Overreach Threaten Gay Freedom.

Please enjoy the first part of our conversation. The second part will be made available tomorrow to paid subscribers only.

For years, activists, campaigners and EDI professionals have been making bad legal arguments about equality law. With a few dishonourable exceptions, these arguments have come from people with no formal legal training. One such person is Joanne Lockwood (she/her) FIEDP FRSA FPSA, who writes ‘from lived experience, not from the sidelines’.

Unfortunately for Lockwood, that lived experience contains no experience of legal education or legal practice. The robotic prose, faux rhetoric, and superficial analysis presented in “The Equality Act Is Not Symmetrical - And That Is Exactly What People Keep Getting Wrong” should make it obvious to most readers that this piece is misleading drivel. For the interested reader, however, this presents an opportunity to learn how to spot a bad legal argument.

Lest I be accused of an appeal to authority, I should make clear that being educated in law or experienced in legal practice is not necessary to make a good legal argument. Nor, I should hasten to add, are they sufficient inoculators against the making of bad legal arguments (looking at you, Good Law Project). While legal training can help in understanding the law or situating one’s analysis within its proper legal context, it is the specific technique of legal reasoning that does the work here.

Legal reasoning is a specific mode of reasoning which relies on bounded argument, operating within an existing legal practice that contains important rules about sources of law and valid legal authority. Thankfully, Lockwood has provided the perfect example of how to write about the law without engaging in this mode of reasoning in any recognisable form whatsoever.

Below are some tips for identifying when someone is trying to inveigle you into believing something about the law with superficially compelling rhetoric* but bad legal arguments.

[* To be fair, Lockwood’s piece doesn’t quite rise to this level. It reads like it was written by a coked-up AI.]

Citing little to no legal authority

The quickest way to identify bad legal arguments is to check whether the author has cited any legal authority to support their propositions. The hallmark of legal reasoning is the citation of relevant legal authority that supports one’s argument. In some contexts, such as an argument before a lower court or tribunal, authority is important because it limits the judge's decision-making power, requiring her to follow decisions of superior courts unless she can distinguish the case in question from the one she is deciding.

More importantly, however, legal argument is quite often about the proper interpretation or application of general law to specific facts. To proceed with a legal argument, a lawyer must identify the relevant legal rules, principles, and tests from the applicable authorities. Lockwood helpfully does none of this and therefore provides a great example of how to write at length without saying anything of legal substance.

To be fair to Lockwood, this piece does cite the Equality Act 2010, an important source of law in the context of single-sex spaces. No provisions in the Act are cited, but you know … details, details.

Similarly, the piece cites For Women Scotland v The Scottish Ministers [2025] UKSC 16 and does note that:

The Court held that the terms “sex”, “man” and “woman” in the Equality Act are to be read as biological sex. That is a significant narrowing. It has consequences.

Beyond this, though, nothing else from the judgment is mentioned. All that is said is that the decision did not do things it obviously did not do, like erase the protected characteristic of gender reassignment.

The issue, of course, is that Lockwood wants to make more concrete arguments about the law relating to single-sex spaces. To do that as a legal argument, as opposed to whatever word vomit this piece is, requires the citation of relevant provisions in relevant legislation and specific paragraphs in applicable cases.

Were Lockwood making a good legal argument, you might have expected to read about the single-sex exceptions in Schedule 3 paras. 26-28 of the Equality Act 2010. You might have expected there to be some engagement with (or even a mention of) the Workplace (Health, Safety and Welfare) Regulations 1992. You might even have been so bold as to expect engagement with case law such as For Women Scotland, Croft v Royal Mail [2003] EWCA Civ 1045, R (Good Law Project Ltd). v Equality and Human Rights Commission [2026] EWHC 279 (Admin), Hutchinson v County Durham and Darlington NHS Foundation Trust [2026] UKET 2501192/2024, or even Peggie v Fife Health Board [2025] UKET 4104864/2024. Alas, not today.

Not presenting the law accurately

Another common feature of bad legal argument is the failure to present a comprehensive and accurate description of the relevant legal rules and authorities. Unfortunately for Lockwood, to fail in this respect, you do need to cite legal authority before misrepresenting it. This is what distinguishes legal argument from argument about the law. There is a minimal requirement of precision and specification. Ah well.

For the sake of this post, however, let’s take some common examples of failures in this regard. They usually occur when a case is cited for a proposition it does not support. For example, in R (Good Law Project) v Equality and Human Rights Commission, the Good Law Project argued that Croft v Royal Mail supports the contention that when a person is in the process of undergoing gender reassignment, there comes a point where they should be entitled to use single-sex facilities in their acquired gender. That is not what the Court in Croft decided. While there were some obiter (passing) comments from Pill LJ about medical transition potentially conferring such a right, the issue to be decided in the case was about whether excluding a trans woman who had not undergone medical transition from a female-only space constituted unlawful gender reassignment discrimination. The court held that it did not.

Presenting Croft as more concerned with the legal position of a hypothetical claimant in a different case than with the facts of the case itself is a classic move in legal argument, treating obiter comments as if they were central to a relevant case. Indeed, some lawyers have even argued that the Court of Appeal held that once someone reached a certain stage of gender reassignment, they are entitled to be treated as a woman and to use female-only facilities. This is a bad legal argument. The Court of Appeal in Croft did not hold as such, and presenting obiter comments in this way is misleading.

It was no surprise that the High Court rejected these arguments from the Good Law Project, with Swift J noting at para. 50 that he ‘[did] not attach any weight to this submission’. Instead, he concluded that these obiter comments predate the GRA and had not been reflected in the other judgment of Parker LJ in Croft, and had not been taken up by any subsequent judgments. Taking all of this together, Swift J ‘[did] not consider that either Pill LJ’s reasoning or the notion that the relevant comparator for a claim of gender reassignment discrimination will change, can survive the reasoning in For Women Scotland’. (See what I did there?)

Not applying the law carefully

Related to the example above of not accurately presenting the law as decided in Croft, another feature of bad legal argument is presenting a true but incomplete statement of law as if it were authoritative for a particular case. This is often a failure of application, where there is a gap between ‘here is the rule’ and ‘therefore I win’. Careful reasoning is needed to explain not just what the rules are but how they apply to the specific facts of a given case.

A good example of this is identified by Lockwood, ironically enough. It is true that, as far as the Equality Act 2010 is concerned, trans women are men. Lockwood is correct, however, that this does not mean that trans women are indistinguishable from men in the eyes of the Equality Act. The protected characteristic of gender reassignment does exist. That means that it would be incorrect to proceed from the presumption that, because trans women are men, they can be treated just like other men without any legal issue arising. That would not be a careful or complete application of the law.

For example, requiring a trans woman to use the male facilities could amount to unlawful gender reassignment discrimination, depending on the circumstances. Because trans women have the protected characteristic of gender reassignment, there may be some situations where treating them as men could put them at a particular disadvantage compared to men without the characteristic. That would then need to be objectively justified.

This is why the Equality and Human Rights Commission noted in its interim update that service providers and employers should, where possible, provide suitable alternative sanitary, changing, or showering facilities for transgender people to use, or provide single-user facilities. Where doing so would impose minimal cost on an employer or service provider, failure to make suitable provision will not be objectively justified and will amount to unlawful gender reassignment discrimination.

The issue for Lockwood, however, is that this all being true, it doesn’t mean that trans women with the characteristic of gender reassignment have an entitlement to be treated as women. That is a claim unsupported by the conclusion that there will be circumstances where trans people are entitled to additional protection that people without the protected characteristic of gender reassignment are not. That is what it means to say that the Equality Act 2010 is not symmetrical. Where sex is relevant for the operation of the Act, however, sex is the factor which must be accounted for, not gender reassignment. That was clear from the decision in For Women Scotland and the many paragraphs in the judgment concerning single-sex spaces that Lockwood does not cite.

Not writing in an appropriate tone

Legal argument is not policy work. It is not political campaigning, and it is not (at least we hope it is not) presented as if written by Barack Obama’s android cousin. Good legal argument is understated. It presents the law as clearly as possible, warts and all, free from the temptation to substitute outrage or rhetoric for analysis.

If you want to see good legal argument in the context of the sex and gender debates, there is no better example than that of Ben Cooper KC in his submissions in For Women Scotland. I’d recommend anyone interested in good legal advocacy watch the Afternoon Session from 26 November 2024 at 59.10 mins. It is a masterclass.

An astute reader may notice that my own tone and rhetoric are somewhat different in this piece than in my other writing. This would make for a poor legal argument. But as an exercise in fighting fire with fire, it was enjoyable!

The Court of Appeal had today ordered the remittance of a judicial review brought by Sex Matters against the trans inclusion policies of the City of London as they relate to the operation of the women’s pond at Hampstead Heath.

In January, the High Court denied Sex Matters permission to bring the review, citing time limits and standing issues. I wrote about the initial decision at the time and will replicate some of that summary here in order to contextualise the reasoning of the Court of Appeal.

Before that, however, it is worth noting that there is an important distinction between a judicial review and other claims brought in private law. In claims brought for breach of contract or negligence etc., the claimant asserts a right to a remedy for a legal wrong done to them. In judicial review, this is not the case. Claims brought in judicial review seek to challenge the lawfulness of administrative decision-making, not to enforce a right of the claimant. The difference between these two kinds of claim give rise to important differences between the approach that courts take to their adjudication.

Importantly, the judicial review procedure is protective of the government. There are stricter time limits to bring claims and there is a more onerous requirement that the claimant has standing to sue. These are designed to ensure that public bodies can get on with the business of government without being concerned that decisions made years prior will be challenged or that public money and time will be spent responding in court to every busy-bodies who comes along, regardless of whether they are affected by the decision. These restrictions are necessary to ensure that public bodies can act effectively in the public interest, even as they are balanced against the need to ensure that administrative decision-making operates in accordance with law.

Time Limits

The first major limitation on the ability to bring a judicial review is the short window within which a challenge can be brought. The normal time limit for brining a judicial review is no later than three months from the decision being challenged. There are some circumstances where an exception can be made to this rule, but it is unusual for one to be granted years after a decision has been made. It would therefore be very rare for a court in 2025 to grant permission to challenge decision made in 2017.

In this case, Sex Matters argued that the City of London Corporation made a new decision on 16 June 2025 to maintain the current arrangements pending a public consultation. If this was a new decision that was capable of being challenged as unlawful, then there would be three months from that date to bring a challenge.

The High Court did not accept that this constituted a fresh decision which is amenable to judicial review. Instead, it concluded that the Corporation is currently in the process of coming to a fresh decision, based in part on the outcome of a public consultation. It was therefore premature to bring the judicial review at this point. Once the Corporation comes to a fresh decision, a judicial review could be brought at that stage.

In the Court of Appeal, Lady Justice Laing concluded that it is arguable that the High Court was wrong on this point, ‘not least because the Decisions were arguably the Defendant’s interim response to a relevant change in circumstances, that is, the decision in For Women Scotland’. Because this point was arguable, the case should not have been thrown out at the permission stage on that basis.

Standing

In addition to the requirement to bring a case in time, there is also a requirement that the person bringing the case have what is known as standing. To have standing in a judicial review case you must have a ‘sufficient interest’ in the decision made. Ordinarily that means that a judicial review can only be brought by someone directly affected by the decision itself. There is some scope for public interest standing, where an organisation has standing because they have a general interest in the matter. Usually public interest standing is not granted when there are people with a more direct interest in the decision who could bring a claim, unless the claimant can show that they have sufficient interest in the decision.

In this case, the Corporation argued that Sex Matters does not have standing to bring a claim because the argument advanced by Sex Matters is that the policy is unlawful on account of it being directly discriminatory. The Corporation argued that the correct venue for airing that challenge is not a judicial review in the High Court but a claim of direct discrimination in the provision of a public service brought by a user of the pond in the County Court.

The Hight Court agreed, noting that the centrality of a discrimination claim to the review sought heavily implies that the appropriate forum for resolving this dispute is a County Court with jurisdiction to hear the discrimination claim. Additionally, the appropriate claimant in a discrimination claim such as this would be someone claiming to have been discriminated against rather than a representative body such as Sex Matters.

In the Court of Appeal, Lady Justice Laing concluded that it was arguable that this aspect of the judgment was wrong because the Equality Act 2010 contains provision at s.113(3) for applications for judicial review. Given that, it was wrong for the High Court to presume that the Equality Act exclusively envisaged claims by individuals in county court for discrimination in the provision of public services. Laing LJ also concluded that there are many cases where expert charities do have standing to bring claims for judicial review, even where individual can also do so. Again, because these claims were arguable, it was wrong of the Hight Court to throw the case out at the permission stage.

It is useful to compare the different approaches to standing for charities such as Sex Matters and organisations such as the Good Law Project. In a previous case, Good Law Project v Prime Minister [2022] EWHC 298 (Admin), it was held that there is an important difference between NGO’s and charities bringing judicial reviews “in their field of interest” where they are representative of an identifiable group and organisations such as the Good Law Project. The Good Law Project is a private company registered with defined objects relating to general public law principles such as democracy, good administration, access to justice and the promotion of equality. These objects place GLP as effectively the corporate equivalent of a member of the public with an interest in public law issues. That is simply not enough to establish a sufficient interest to have standing in most public law cases.

In contrast, Sex Matters is a charity with specific charitable aims directed towards the protection of sex-based rights. It is an expert charity with a narrow focus on the particular interests of an identifiable group. Laing LJ noted that there are many authorities establishing that expert charities such as Sex Matters do have standing to bring claims for judicial review. The error that the High Court made, in my view, was in presuming that Sex Matters was in a similar situation as the Good Law Project.

Merits

Because the High Court concluded that Sex Matter did not have standing and that the case was premature, it did not consider it necessary to analyse the substantive merits of the challenge. There was therefore no finding that the policy in question was lawful and no finding that it was unlawful. The Corporation had indicated that it would seek specialist legal advice following the public consultation to ensure that its new policy would be compatible with the Supreme Court decision in For Women Scotland. Until that had been done and a decision made on a new policy, the Court did not consider it necessary to consider the matter further.

In the Court of Appeal, Laing LJ noted that the judge in the High Court ‘did not engage with the merits of the ground for justice review except at the end of her judgment’. Even here, the High Court implied only that the substantive arguments from Sex Matters were not so obvious or overwhelming as to outweigh the conclusion that the case was premature. There was no consideration of whether the arguments were themselves arguable, which is an important consideration when determining whether to grant permission to bring a case in full. In the Court of Appeal, Laing LJ noted that the arguments on the merits advanced by the City of London were ‘brief and unpersuasive’.

For these reasons, the Court of Appeal concluded that it was wrong of the High Court to thrown this case out at a preliminary stage. Laing LJ therefore ordered that the substantive judicial review should be remitted to the Administrative Court for a full hearing.

The Good Law Project has published the grounds of appeal lodged on behalf of some of the claimants in the failed judicial review of the EHRC Interim Update on the legal implications of the Supreme Court decision in For Women Scotland v The Scottish Ministers.

In summary (see a full analysis here), the Good Law Project and three other claimants challenged the lawfulness of the Interim Update on the basis that the Update contained errors of law and, if there were no errors of law, established that the Equality Act 2010 and the Workplace (Health, Safety, and Welfare) Regulations 1992 violated the rights of transgender people under the European Convention on Human Rights. The High Court rejected these arguments in their entirety, although one may be forgiven for concluding that this judgment constituted an important win for the GLP, at least if its campaigning material is anything to go by.

GLP has separately sought permission to appeal the decision that it did not have standing to take this case. Therefore, this appeal is lodged only on behalf of some of the claimants. Below, I set out the first main ground of appeal and provide some analysis. I hope to write other posts in the future which address the other grounds.

It is worth stressing at this point that the appellants are not challenging the conclusions of the High Court that permitting men to use female-only facilities could amount to sex discrimination and/or harassment against female service users. The liability risk for operating trans-inclusive facilities can be readily seen from high profile cases such as Peggie v NHS Fife and Hutchinson v NHS Darlington where women have successfully established that they have been harassed or discriminated against by trans-inclusive policies.

The Excluded Man

The first substantive ground of appeal relates to the finding of the High Court that the EHRC’s guidance contained no error of law when it stated that the inclusion of trans women (biological men) into female only facilities would mean that a service is no longer single-sex and must be open to all users of the opposite sex.

What The High Court Found

The statement from the EHRC contains two aspects; first the claim that a female-only facility would cease to be single-sex if some biological men were permitted to use them. This was dealt with quickly, with Swift J noting at [53] that ‘it is an inevitable consequence of the conclusion of the Supreme Court in For Women Scotland that in the EA 2010 “man” means a biological man and “woman” means a biological woman’. Swift J then considered the potential direct discrimination claim brought by a man excluded from a trans-inclusive women’s service:

57. The legal premise for point (vi) is that a man excluded from a trans-inclusive female lavatory (for the purposes of the EA 2010, a mixed-sex provision) would succeed on a claim of direct discrimination on grounds of sex.

58. In this scenario, not all men would be prevented from using the trans-inclusive lavatory. However, the direct discrimination claim would not fail for that reason: see and compare the judgment of Baroness Hale in R(Coll) v Secretary of State for Justice [2017] 1 WLR 2093 at paragraphs 28 – 31.

59. Whether point (vi) is correct will depend on the circumstances of the case and how, in those circumstances the matter of assessment that emerges from the judgments of the Court of Appeal in Smith v Safeway plc [1996] ICR 868 and R(Al Hijrah School) v HM Chief Inspector of Education [2018] 1 WLR 1471 is decided. The relevant matter is whether, notwithstanding that the man is differently treated, is he less favourably treated?

60. In Smith v Safeway an employer had a code on staff appearance which applied different rules for men and women. Men were required to have “… tidy hair not below shirt collar length. No unconventional hair styles …”. A man sporting a ponytail was dismissed. He made a claim of sex discrimination. The Industrial Tribunal dismissed the claim and that conclusion was upheld by the Court of Appeal. Phillips LJ stated (at page 878B – D).

“As Mr. Elias has pointed out, a code which made identical provisions for men and women but which resulted in one or other having an unconventional appearance, would have an unfavourable impact on that sex being compelled to appear in an unconventional mode. Can there be any doubt that a code which required all employees to have 18-inch hair, earrings and lipstick, would treat men unfavourably by requiring them to adopt an appearance at odds with conventional standards? … A code which applies conventional standards is one which, so far as the criterion of appearance is concerned, applies an evenhanded approach between men and women and not one which is discriminatory”

Leggatt LJ agreed (see at page 881G – H)

“Discrimination consists, not in failing to treat men and women the same, but in treating those of one sex less favourably than those of the other. That is what is meant by treating them equally. If men and women were all required to wear lipstick, it would be men who would be discriminated against. Provided that an employer's rules, taken as a whole, do not result in men being treated less favourably than women, or vice versa, there is room for current conventions to operate.”

In Al-Hijrah School, a co-educational primary school segregated pupils by sex from age 9. In an inspection report, school inspectors described this as direct discrimination on grounds of sex. The school challenged that conclusion. The court concluded, by a majority, that separate but equal treatment could constitute less favourable treatment and therefore discrimination; the different treatment was detrimental both to boys and girls; and that on the facts, both boys and girls were less favourably treated. The judges in the majority (Etherton MR and Beatson LJ) considered the decision in Smith v Safeway on which the school relied. The school had submitted the case was:

“74. … clear and binding authority that different but equal treatment for reasons of sex cannot constitute unlawful discrimination unless those of one sex are treated less favourably than the other sex, and so the same is necessarily true where they are treated similarly.”

At paragraph 76, the judges concluded:

“76. We do not consider that Smith’s case is of any assistance on this appeal. As the judge pointed out … the facts of that case are very different from those of the present case. They are so different, and the social context in which they arose was so different, that [the reasoning of the court in Smith] … cannot usefully be translated by analogy to the application of section 13 of EA 2010 in conjunction with section 85(2) of EA 2010 to the facts in the present case.”

61. Whether different treatment is also less favourable treatment is, therefore, a qualitative question. In a case where the provision of separate lavatories labelled male and female was materially similar in terms of the extent of the provision, location, and so on, I consider there would, in principle, be scope for a strong argument that a rule or practice that permitted trans women to use the “female” lavatory but required other biological men to use the male lavatory would comprise different but not less favourable treatment on grounds of sex. However, the circumstances of the case would be decisive. (For the purposes of the EA 2010 the lavatory would be mixed-sex, but for the purposes of the Claimants’ submission in this case it would still be labelled “women”.)

62. The Claimants put the same point in a different way contending that providing a transinclusive lavatory could be permitted positive action under section 158 of the EA 2010 and that for that reason, any claim of direct discrimination brought by a man would fail. I do not consider it necessary to consider this point separately. Insofar as it might further be said that section 158 would provide a response to the claim of indirect sex discrimination anticipated in point (iv) (the claim made by women when no single-sex provision was made), reliance on section 158 would not lead to consideration of any matter not already relevant to the justification defence to such an indirect discrimination claim.

…

77. … While I am less certain than the Interim Update that a man prevented from using the Claimants’ trans-inclusive female lavatory would be likely to establish the less favourable treatment necessary to make good a claim of direct sex discrimination, I do not consider that the way the point is put in the Update is necessarily wrong. Rather, it is a point that may turn on the facts of a situation. Even though the EHRC’s obligation when exercising its power under section 13(1)(d) of the EA 2006 is to provide an accurate statement of the law, the court must apply this requirement recognising that any statement of law will rest on some assumption of fact, even if only generic. Where a body such as the EHRC has issued guidance that rests on factual premises that are permissible, the court should hesitate before concluding that the guidance as issued was unlawful. Thus, I do not consider that the EHRC’s approach to point (vi) gives rise to any legal error.

In summary, Swift J concluded that it was an inescapable consequence of the Supreme Court decision in For Women Scotland that a facility open to both women and trans women is mixed-sex, not female-only. There is no error in law arising from that and it does not appear as though the appellants are challenging it. Instead, their arguments focus on the further point that because the service in question would no longer be single-sex, it must be open to all service users of the opposite sex.

Implicit within this is the understanding that if a service is no longer single or separate sex, it cannot rely on the Schedule 3 exceptions to defend against claims of sex discrimination. To avoid such claims, the service should not exclude a subset of men because of their (1) sex and (2) lack of transgender identity.

On that point, Swift J concluded that in order for an excluded man to have a viable claim in direct sex discrimination arising from his exclusion from a women-only service, he would need to be disadvantaged by the exclusion. Whether exclusion amounted to a disadvantage would depend on the facts of an individual case and therefore Swift J felt that a service provider could have a strong argument that the provision of ‘separate but equal’ facilities such as where communal toilets are provided for men and women separately does not constitute disadvantageous treatment of anyone. However, just because Swift J was of the view that such an argument could be run, he was not prepared to conclude that the EHRC guidance contained an error of law because any statement of law will rest on some assumptions of fact that support the general truth of the statement.

For example, the stamtent ‘the speed limit on this road is 40 km an hour; it would therefore be unlawful to drive above 40 km an hour’ presumes that one is not driving an emergency vehicle. Courts are reluctant to require those charged with issuing guidance on the law to conceive of or describe every possible scenario where general statements of law may be subject to fact specific exceptions. It would therefore be inappropriate for a court to strike down such a statement as unlawful merely because it didn’t contain the further statement ‘unless one is driving an emergence vehicle’. Similarly, it is a true statement to say that humans are bipedal, even if some people have only one leg and cannot walk. This statement is not false for failing to add in the caveat ‘except where medical conditions or injury result in the the inability to walk on two legs’. What matters when considering omissions is whether the omission is material enough to render the general statement false.

It would not have been appropriate for the court to require the EHRC guidance to caveat every statement of law with ‘unless the circumstances of the case would indicate otherwise’, not least because that would undermine the point of issuing guidance which is to provide an accessible and digestible indication of where the legal risks lie. Guidance is not bespoke legal advice intended to cover every concievable situation. Attempting to do so would result in ‘guidance’ which was unable to guide behaviour at all, leaving duty-bearers paralised. So long as the guidance contained accurate statements of law which were premised on presumptions the EHRC was entitled to make, the choice not to include repeated caveats to the effect that duty-bearers should seek bespoke legal advice on individual cases will not be an error of law. The EHRC is required to avoid mateial omissions. Swift J was satisfied that no such omission occured here.

It is important to remember two things at this point. The first is that the point of guidance from the EHRC is to provide practical information about the likely legal risks faced by duty-bearers under the Equality Act, with an eye to helping them to avoid liability. The second is that, even if an excluded man would struggle to establish a direct sex discrimination claim, that does not mean that the provision of a trans-inclusive facility is lawful. The High Court also upheld the accuracy of several points made by the EHRC in relation to the other liability risks faced by service providers, including claims of discrimination and harassment from women who are required to share single-sex facilities such as changing rooms with biological men. Even if GLP suceed on this point, that does not mean that it would be lawful to operate a single-sex toilet, changing room, or other facility on a trans-inclusive basis. I’ll set out my own views on the ‘excluded man’ issue further on in this post.

What the appeal is arguing

The appellants are aruing that Swift J erred in law by upholding the accuracy of the statement “trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men's facilities, as this will mean they are no longer single-sex facilities and must be open to all users of the opposite sex.” They argue that this statement contains a material omission to the effect that there may be some circumstances where single-sex facilities can include members of the opposite sex without needing to be opened to all users of the opposite sex. The appellants advance three reasons for this.

1. First, the High Court presumes that a statement expressed in absolute terms will be accurate and lawful so long as it is sometimes correct. The appellants argue that this is an error of law; if an absolute statement is incorrect some of the time, this omits material qualifiers or caveats.

Notice how this objection is framed. Swift J concluded that the EHRC guidance was expressed in general terms. The apellants argue that it was expressed in ‘absolute’ terms. This is an important difference. Swift J did not say that the guidance was only sometimes correct; he noted that the guidance contained a general statement of law which rested on general presumptions the EHRC was entitled to make. In order for the appellants challenge to succeed, it would need to be unlawful for bodies such as the EHRC to issue general statements about the law which might not hold in all conceivable circumstances.

The central issue here is not whether there may be any circumstances where an excluded man would fail in a claim of direct sex discrimination; it is whether the failure to set out the circumstances in which such a claim might fail constituted a material omission. My own view, which I will set out below, is that Schedule 3 para 26 of the Equality Act heavily implies that ‘separate but equal’ services do constitute direct sex discrimination which are unlawful except where the conditions established in para 26 are met.

However, even if they do not always do so, it would be incumbent upon the appellants to identify the material circumstances in which a direct sex discrimination claim would fail. It could then be argued that the failure to include a caveat setting out those specific circumstances was a material omission. That is quite different from insisting that the EHRC include generic caveats to the effect that its guidance is always subject to the circumstances of a given case, without indicating what circumstances would be relevant. To require nothing more than a generic statement that the guidance depends on the circumstances would create exactly the conditions for muddying the water that would undermine the purpose of the provisions permitting the EHRC to issue guidance in the first place.

Swift J held open the possibility that an excluded man may fail to establish a claim in direct sex discrimination. This conclusion must be read in conjunction with the conclusions that there will be circumstances where women would succeed in claims of sex discrimination and harassment if required to use trans-inclusive women’s facilities. If all that EHRC guidance could say were generic statemetns that sometimes it will be lawful to do X and sometimes it will be unlawful to do X, then the guidance would be useless. At a certain point guidance must be expressed in general terms which actually provides guidance on how duty-bearers should act to reduce liability. The Interim Update did exactly that. Following that update is the best way for duty-bearers to reduce liability risk.

The reality is that a choice to exclude a portion of the population from a given service runs the risk of being unlawfully discriminatory, if a substantial reason for the exclusion is a protected characteristic. The traditional means of justifying separate facilities for men and women has historically not been to point to the fact that the provision is ‘separate but equal’; it has been to point to the express carve out in Schedule 3 para 26 which renders sex separated public services lawful under certain circumstances or to point to the Workplace (Health, Safety and Welfare) Regulations 1992 which mandate certain sex separated facilities in the workplace where single-user facilities are not sufficient or have not been provided.

If a service provider is choosing to operate a separated service which cannot rely on those express statutory carve-outs, the EHRC is within its rights to issue guidance against that, given the heightened liability risk. The face that one of the multiple potential claims warned of may not succeed in all circumstances does not render that guidance unlawful.

2. Second, it was an error of law to presume that there were any circumstances where an excluded man would suceed in a claim of direct sex discrimination. This is because the exclusion of a man who does not idenitfy as a woman would be on the grounds of ‘lived gender’ not sex.

This claim focuses not on whether exclusion constitutes a detriment, but whether it could ever be said that trans-inclusive services excluded men because of their sex. This claim simply misunderstands the nature of the ‘because of’ test for direct discrimination.

Sex need not be the sole reason for the less favourable treatment, so long as it can be shown that it was an important factor in the less favourable treatment (Owen & Briggs v James [1982] IRLR 502; O’Donoghue v Redcar & Cleveland Borough Council [2001] IRLR 61); Hewage v Grampian Health Board [2012] UKSC 37).

In Nagarajan v London Regional Transport [1999] IRLR 572, the House of Lords noted:

“Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”

Similarly, in O’Reilly v BBC [2011] EqLR 225, the Employment Tribunal noted at [245]-[246]:

the prescribed reason need not be the sole reason, or even the principal reason, why a person suffers detrimental treatment. Part of the reason that a woman over 40 is precluded from applying for the job, in the above example, is the fact that she is a woman. Another part of the reason is that she is over 40. Both of them are significant elements of the reason that she suffers the detriment. In such circumstances, we consider it is clear that the woman is subject to both sex and age discrimination.

The way that this can be fitted with the comparative exercise set out in the legislation is that a woman over 40 can compare her treatment to a man over 40; by which exercise the sex discrimination element of the treatment is established. Similarly, the woman over 40 can compare her treatment to another person under 40, thereby establishing the age discrimination element.

The appellants are arguing that the reason for the exclusion of a man who does not identify as transgender from a trans-inclusive female only service is not sex but ‘lived gender’. I take ‘lived gender’ to mean nothing more than self-identification, not least because the appellants have provided nothing further by way of definition. In any event, this is not the relevant question. It is not relevant if ‘lived gender’ is the purported reason for exclusion. What matters is whether the sex of the person excluded would be a substantial reason for their exclusion.

The question which must be asked to determine whether the exclusion was because of sex is whether a comparator of the opposite sex in materially the same circumstances as the claimant would be included. In this case, the relevant comparator would be a woman who does not identify as transgender or does not ‘live as a man’ (whatever that means). Would she be included in a trans-inclusive women’s facility? The answer is obvious. It is therefore inescapable that the excluded man is excluded ‘because of’ sex for the purposes of a direct sex discrimination claim. Whether that exclusion constitutes less favourable treatment is a separate question to be addressed in further detail below.

3. Third, the High Court erred by declining to consider whether operating a trans-inclusive facility could be justified as permitted positive action under s.158 of the Equality Act.

In the judgment, Swift J declined to consider this issue separately from the direct discrimination claim because he was of the view that the justification test in s.158 which permits positive action to advance the position of those who share a protected characteristic where proportionate was already addressed in the judgment when he considered the justification test for indirect discrimination. The point Swift J was making was simple: in his view many of the exceptions contemplated by the claimants would depend on the facts of individual cases; general guidance need not address the facts of every exceptional case in order to be lawful; therefore the operative question is whether the guidance contained any material omissions which would render it incorrect as a matter of law. Swift J was of the view that it did not and that the guidance was therefore legally accurate and lawful.

Schedule 3 para 26

My own view on the issue of the ‘excluded man’ is that Swift J should have addressed the implication of the existence of Schedule 3 para 26 of the Equality Act. If he had done so, he may not have been quite so reluctant to agree with the EHRC position.

Schedule 3 contains three paragraphs which each relate to the provision of separate or single sex services. Para 26 makes provision for when it will not be unlawful sex discriminaiton to provide a service separately for men and women. Para 27 makes provision for when it will not be unlawful sex discrimination to provide a single-sex service. Para 28 makes provision for when it will not be unlawful gender reassignment discrimination to provide a single-sex service.

There is an important and relevant difference between a separate sex service and a single sex service. A single sex service is a service provided only to one sex. A separate sex service is a service provided to both men and women but on a separate based. For the purposes of this case, this is the relevant provision. Schedule 3 para 26 states:

Note the structure of this exception. There are two substantive provisions, the first setting out conditions where provision of separate services for persons of each sex can be provided and the second setting out conditions where separate services can be provided ‘differently’ for persons of each sex. For the former, all that need be established is that a mixed-sex service would be less effective and that the limited provision is proportionate. For the latter, it must also be shown that providing the service differently to one sex is justified by the needs of the other sex, bearing in mind the practicalities involved.

It is clear that para. 26(1) sets out the conditions for when ‘separate but equal’ provision for the sexes will be lawful and para. 26(2) sets out the conditions for then ‘separate and different’ provision for the sexes will be lawful. The inescapable implication of the existence of para. 26(1) is that this provision is needed to render lawful something which would not otherwise be lawful under the Act.

Put another way, if a service provider sought to provide a ‘separate but equal’ service for women and men but could not establish that a mixed-sex service would be less effective or could not establish that the separate but equal service was a proportionate means of achieving a legitimate aim, it would be counterintuitive to presume that the service provider could escape liability by simply arguing that ‘separate but equal’ services are nevertheless lawful because they do not treat anyone less favourably. As Lady Hale noted in R (Coll) v Secretary of State for Justice [2017] UKSC 40:

34. This brings us, therefore, to paragraph 26 of Schedule 3 to the 2010 Act (para 24 above). The history of the United States of America and of the Republic of South Africa, to take the two most obvious examples, has taught us to treat with great suspicion the claim that, if the races are segregated, “separate but equal” facilities can be provided for both, quite apart from the affront to dignity in the assumption that the races have to be kept separate. There have been periods in our own history where segregation of the sexes has led to separate facilities which were very far from equal. Paragraph 26 recognises that there may be good reasons for providing separate facilities for men and women. As Ms Rose points out, paragraph 26 proceeds on the assumption that, without it, the provision of single sex services would be unlawful discrimination.

This must be correct. If it were not, then para.26(1) would be a dead letter; there would be no need to meet the tests set out in the provision because ‘separate but equal’ services would generally be lawful unless it could be shown that the provision was actually different between men and women, to the advantage of one over the other. However, that would also render para. 26(1) superfluous because para. 26(2) makes provision for ‘separate and different’ services.

Swift J was of the view that exclusion of a man from a women’s facility might not be direct sex discrimination if the man is provided with a separate men’s facility of equal quality because his exclusion would amount to separate but not less favourable treatment. If that were correct, however, that would render Schedule 3 para. 26(1) redundant. If the only claim that a man could bring in sex discrimination arose from the fact that he had been treated separately and less favourably (separately and differently in the language of Lady Hale in Coll at [35]), then the only circumstances in which para. 26 would be engaged would be if the conditions in para. 26(2) were engaged. This cannot be right.

The Supreme Court in Coll was correct to note that paragraph 26 proceeds on the assumption that, without it, the provision of single sex services would be unlawful discrimiantion. Without para. 26(2) the provision of separate and different facilities would be unlawful and without para. 26(1) the provision of separate but equal facilities would be unlawful.

Applying this reasoning to the case of a trans-inclusive women’s facility, it must be recognised that the provision of ‘separate but equal’ facilities can amount to discriminatory treatment. Once that is accepted, the question to be asked is whether this is a case which involves sex discrimination. In my view, that question has an obvious answer: the excluded man would be included if he were a woman. Exclusion being less favourable treatment which is because of sex, the only defence available to a service provider is that there is an applicable exception which permits this kind of discrimination. No such exception is to be found in Schedule 3 because the exceptions there pertain to single and separate sex services. A trans-inclusive women’s facility is not such a service. It is a mixed-sex service for the purposes of the Equality Act.

In my view, it is clear that the distinction between para. 26(1) and para. 26(2) intends to cover both ‘seperate but equal’ and ‘seperate and different’ services. That distinction is evidently one which presumes that for sex separation in public services, the act of separation is itself discriminatory, even if the provision is identical. To protect against direct sex discriminaiton claims arising from the provision of seperate but equal services, para. 26(1) sets out a test to engage the exception. There is then further provision made for separate and different services which, in addition to sex separation, also treat one sex less favourably than another. To protect against direct sex discrimination claims arising for the provision of separate and different services, para. 26(2) sets out a test to engage that exception.

The fact that there are two tests covering both separate but equal and separate and different services means that, in my mind, Swift J was wrong to suggest that a respondent to a sex discrimination claim brought by a man would have a strong argument that the provision was ‘different but not less favourable treatment’. Bearing in mind the wording of para. 26, read in conjunction with the Supreme Court analysis of it in Coll, I would be inclined to say that this is a weak argument at best.

This being the case, I would hope that this issue is dealt with in detail on appeal, should permission be granted. I hope to write about the other grounds of appeal in the coming weeks.

This week over 30 lawyers and legal academics wrote to Bridget Phillipson MP, Minister for Women and Equalities, to warn against the misinformation being spread by the Good Law Project in the aftermath of its failed judicial review of the Equality And Human Rights Commission’s interim update. I was among the signatories. This has been reported in the Times and I include the full text of our letter below.

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