How to Spot a Bad Legal Argument

A response to Joanne Lockwood

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!