Melanie Field, an independent advisor on equality and human rights who has worked in both the EHRC and the civil service, has written a detailed article on the practical implications of the For Women Scotland ruling.
From what I can see, Melanie Field was in a pretty responsible role at EHRC, certainly when she left in Oct ‘23 she was responsible for Strategy and Policy. I find myself wondering just how much she was involved in writing the Guidances of 2011 (was she already at the EHRC then?) and 2022, whose rationale she is so vigorously defending.
That is what I was wondering too but it seems not:
"Prior to joining the Commission in 2014, Melanie had a 25-year Civil Service career working in the justice and health sectors and, for the last 15 years, specialising in equality and human rights policy. She led the development of significant advances in equality legislation, including outlawing sexual orientation discrimination in services and public functions and leading the creation and implementation of the Equality Act 2010, for which she was awarded the OBE in 2011. Her final Civil Service role was steering the parliamentary passage and subsequent implementation of the Marriage (Same Sex Couples) Act 2013."
"Today’s Guardian has an article entitled “Court ruling on ‘woman’ at odds with UK Equality Act aim, says ex-civil servant” https://www.theguardian.com/world/2025/apr/18/ruling-on-woman-definition-at-odds-with-uk-equality-acts-aim-says-ex-civil-servant In the article a former civil servant, senior within the policy side of the civil service, makes various comments about the intent underpinning the Equality Act 2010. The article is a curious one and wholly irrelevant in relation to the question of legislative interpretation which was at issue in For Women Scotland v Scottish Ministers [2025] UKSC 16. It is perhaps worth teasing out certain issues within the article and why they are irrelevant in law."
Lots of stuff about the law but this jumps out as being rather odd:
"The subheading though suggests that the civil servant “helped draft the Act”. Indeed it goes on to note that Melanie Field “played a key role in drafting the Equality Act” and “oversaw its drafting”. There is one problem with this though. Field was the report states “deputy director (discrimination law) at the Government Equalities Office — a unit inside the Cabinet Office — and the lead official for the 2010 act”. She was not in the office of parliamentary counsel and was not a legislative drafter. Consequently, she had no role in drafting the legislation. Drafting is a specialist role. A civil servant working in policy, even heading the policy part of a bill team, does not have a role in legislative drafting. Policy team works on the development of policy. And nor does the policy team prepare the instructions for drafting. The instructions are prepared by lawyers in the government legal service who review the policy, and research the law to identify what is required legally to implement the policy. Field may have overseen the bill team but in no sense oversaw drafting. Drafting is the sole domain of parliamentary counsel, who are charged with putting into legislative language the policy which has been developed. Overstating Field’s role to actually determining the legislative language is misleading, as well as being (for reasons given above) wholly irrelevant in determining meaning."
EDIT: This Mumsnet Thread has some more info about Melanie.
"Melanie Field: the former EGRC expert behind Labour's women's rights policy"
Thank you, and I get it that she only actually joined in 2014 (discovered that after I commented). BUT given her apparent status as THE expert on the Equality Act, (don’t think she is acquainted with Imposter Syndrome) would also wonder if she was called in to advise, consult on the initial 2011 Guidance.
I recall her saying quite vehemently in a meeting before she left the EHRC that "trans people exist" as if we didn't know these people existed. But I felt the context was more about her making a statement of her true beliefs, defending them against the topic in hand which was women's legal rights to single sex spaces.
Dr Foran: the Scottish government's leave to continue to place 'transwomen' in the female prison estate would seem to be itself open to challenge. The SG cannot be challenging the UKSC ruling on the EQA 2010 because the ruling specifically clarifies that sex means biological sex and that it always meant biological sex. So, what is the locus of their claim to carry on placing men in the female prison estate?
Why was the SG given leave to challenge the biological sex basis when prisons must be one of the most obvious examples where any man should be excluded, being a place where biological women are incarcerated and cannot move away or change their location in any way to avoid the male gaze. Former Deputy Governor, Rhona Hotchkiss, has stated that the 'transwomen' in there share recreation time and space, and the showers, with biological women who are intimidated by their presence. Are we not straying into the realms of cruel and unusual punishment for the women?
My query is: if the law is now clear (and, indeed, always was) why should any institution be allowed to continue to flout the law and waste public monies on unwinnable court cases? Why are these potential cases not simply struck down before ever coming to court, as being vexatious? If the SG's case is that these biological men should be allowed into the female prison estate based solely on their 'gender reassignment'/GRC, which most do not have - because it cannot be based on their biological sex - and biological sex is the only qualification, apart from having committed a crime - for being housed there, then the case is lost before it begins, surely? Or is the SG claiming that it is both proportionate and a legitimate aim to house men in the female prison estate?
Another point: if government lawyers, and other public body lawyers are issuing false guidance and false advice, then they are not achieving the professional standards necessary for the positions they hold. To be on top of the law in their area must require a certain standard of knowledge and understanding of said law? Or is it the case that the SG MSPs are not listening to proper and legally sound advice? They cannot be if sound legal advice has been offered and, yet, they persist in pressing ahead with time and money wasting challenges to settled law - which, in turn, can mean only that they are determined to undermine and challenge the existing law as a legitimate governing body subject to the law of the land. Surely, this is malfeasance in public office?
It appears that they can only be arguing the Fields line as explained above. That each case must be treated individually and that a blanket ban on biological men is wrong. While Dr. Foran (is it Professor now?) has explained why that is wrong it appears that certain bodies are determined to pursue that line.
A straightforward and clear analysis Michael, thank you
When read alongside Melanie Field’s analysis the intention to mislead is clear. It is so important to keep pushing back on these blatant attempts to obfuscate - thank you for continuing to do so.
Also interested in your response to Lorna’s question
From what I can see, Melanie Field was in a pretty responsible role at EHRC, certainly when she left in Oct ‘23 she was responsible for Strategy and Policy. I find myself wondering just how much she was involved in writing the Guidances of 2011 (was she already at the EHRC then?) and 2022, whose rationale she is so vigorously defending.
That is what I was wondering too but it seems not:
"Prior to joining the Commission in 2014, Melanie had a 25-year Civil Service career working in the justice and health sectors and, for the last 15 years, specialising in equality and human rights policy. She led the development of significant advances in equality legislation, including outlawing sexual orientation discrimination in services and public functions and leading the creation and implementation of the Equality Act 2010, for which she was awarded the OBE in 2011. Her final Civil Service role was steering the parliamentary passage and subsequent implementation of the Marriage (Same Sex Couples) Act 2013."
https://fairnessfoundation.com/deepening-opportunity
This article by Scott Wortley is interesting:
"The strange case of Melanie Field: is an individual civil servant’s views on policy relevant in interpreting legislation"
19 April 2025
https://scott-wortley.medium.com/the-strange-case-of-melanie-field-is-an-individual-civil-servants-views-on-policy-relevant-in-1cd89a9e69ef
It starts:
"Today’s Guardian has an article entitled “Court ruling on ‘woman’ at odds with UK Equality Act aim, says ex-civil servant” https://www.theguardian.com/world/2025/apr/18/ruling-on-woman-definition-at-odds-with-uk-equality-acts-aim-says-ex-civil-servant In the article a former civil servant, senior within the policy side of the civil service, makes various comments about the intent underpinning the Equality Act 2010. The article is a curious one and wholly irrelevant in relation to the question of legislative interpretation which was at issue in For Women Scotland v Scottish Ministers [2025] UKSC 16. It is perhaps worth teasing out certain issues within the article and why they are irrelevant in law."
Lots of stuff about the law but this jumps out as being rather odd:
"The subheading though suggests that the civil servant “helped draft the Act”. Indeed it goes on to note that Melanie Field “played a key role in drafting the Equality Act” and “oversaw its drafting”. There is one problem with this though. Field was the report states “deputy director (discrimination law) at the Government Equalities Office — a unit inside the Cabinet Office — and the lead official for the 2010 act”. She was not in the office of parliamentary counsel and was not a legislative drafter. Consequently, she had no role in drafting the legislation. Drafting is a specialist role. A civil servant working in policy, even heading the policy part of a bill team, does not have a role in legislative drafting. Policy team works on the development of policy. And nor does the policy team prepare the instructions for drafting. The instructions are prepared by lawyers in the government legal service who review the policy, and research the law to identify what is required legally to implement the policy. Field may have overseen the bill team but in no sense oversaw drafting. Drafting is the sole domain of parliamentary counsel, who are charged with putting into legislative language the policy which has been developed. Overstating Field’s role to actually determining the legislative language is misleading, as well as being (for reasons given above) wholly irrelevant in determining meaning."
EDIT: This Mumsnet Thread has some more info about Melanie.
"Melanie Field: the former EGRC expert behind Labour's women's rights policy"
29 June 2024
https://www.mumsnet.com/talk/womens_rights/5107886-melanie-field-the-former-egrc-expert-behind-labours-womens-rights-policy
The most recent post but one is a link to this Substack post!
Thank you, and I get it that she only actually joined in 2014 (discovered that after I commented). BUT given her apparent status as THE expert on the Equality Act, (don’t think she is acquainted with Imposter Syndrome) would also wonder if she was called in to advise, consult on the initial 2011 Guidance.
I recall her saying quite vehemently in a meeting before she left the EHRC that "trans people exist" as if we didn't know these people existed. But I felt the context was more about her making a statement of her true beliefs, defending them against the topic in hand which was women's legal rights to single sex spaces.
Thank you, as always.
Dr Foran: the Scottish government's leave to continue to place 'transwomen' in the female prison estate would seem to be itself open to challenge. The SG cannot be challenging the UKSC ruling on the EQA 2010 because the ruling specifically clarifies that sex means biological sex and that it always meant biological sex. So, what is the locus of their claim to carry on placing men in the female prison estate?
Why was the SG given leave to challenge the biological sex basis when prisons must be one of the most obvious examples where any man should be excluded, being a place where biological women are incarcerated and cannot move away or change their location in any way to avoid the male gaze. Former Deputy Governor, Rhona Hotchkiss, has stated that the 'transwomen' in there share recreation time and space, and the showers, with biological women who are intimidated by their presence. Are we not straying into the realms of cruel and unusual punishment for the women?
My query is: if the law is now clear (and, indeed, always was) why should any institution be allowed to continue to flout the law and waste public monies on unwinnable court cases? Why are these potential cases not simply struck down before ever coming to court, as being vexatious? If the SG's case is that these biological men should be allowed into the female prison estate based solely on their 'gender reassignment'/GRC, which most do not have - because it cannot be based on their biological sex - and biological sex is the only qualification, apart from having committed a crime - for being housed there, then the case is lost before it begins, surely? Or is the SG claiming that it is both proportionate and a legitimate aim to house men in the female prison estate?
Another point: if government lawyers, and other public body lawyers are issuing false guidance and false advice, then they are not achieving the professional standards necessary for the positions they hold. To be on top of the law in their area must require a certain standard of knowledge and understanding of said law? Or is it the case that the SG MSPs are not listening to proper and legally sound advice? They cannot be if sound legal advice has been offered and, yet, they persist in pressing ahead with time and money wasting challenges to settled law - which, in turn, can mean only that they are determined to undermine and challenge the existing law as a legitimate governing body subject to the law of the land. Surely, this is malfeasance in public office?
It appears that they can only be arguing the Fields line as explained above. That each case must be treated individually and that a blanket ban on biological men is wrong. While Dr. Foran (is it Professor now?) has explained why that is wrong it appears that certain bodies are determined to pursue that line.
A straightforward and clear analysis Michael, thank you
When read alongside Melanie Field’s analysis the intention to mislead is clear. It is so important to keep pushing back on these blatant attempts to obfuscate - thank you for continuing to do so.
Also interested in your response to Lorna’s question
Very clear and easily understood (as always).
Thank you.
Seconded.
Remind me never to get into an argument with you! Fantastic rebuttal.