Policy Exchange - Why the Equal Treatment Bench Books needs urgent revision

[highame]

policyexchange.org.uk/publication/prejudging-the-transgender-controversy/

We've been saying it for ages and it came up in Allison Bailey's case I believe. It seems people are now beginning to question just what has been happening. Strongly influenced by Stonewall.

I haven't read it yet, sorry, hope it's worth it.

As set out below, the actual guidance in Chapter 12 of the Bench
Book has serious problems. It puts forward a concept of trans
identity which is quite different from anything recognised in English
legislation and is based on self-identification; it encourages judges
to require other parties to adopt that concept and to look askance at
those who fail to; it puts forward controversial ideological positions
and novel legal claims; and it consistently fails to acknowledge
that there is any legitimate dispute about the claims that it makes
on behalf of trans people.

Interesting reading.

I think it was Maya's case where the Bench Book came up.

I think that was the Respondent's defence, in fact - "The Bench Book can't be wrong!" is a live I remember their barrister using.

No wonder they lost.

(The Bench Book section on trans was written by Gendered Intelligence or similar, if I remember correctly).

@PearPickingPorky

I think it was Maya's case where the Bench Book came up.

I think that was the Respondent's defence, in fact - "The Bench Book can't be wrong!" is a live I remember their barrister using.

No wonder they lost.

(The Bench Book section on trans was written by Gendered Intelligence or similar, if I remember correctly).

It makes sense that it would have been someone like that - both from the content and the way these groups have infiltrated public bodies. But do we know that? I thought the college of judging or whatever they're called had refused to reveal who was involved or how it was developed.

That's a powerful takedown of the partisan Bench Book which has been written by shadowy unaccountable groups in such an appalling way that it attempts to:
" tell judges what they are supposed to think about matters of current controversy. In the Forstater case this seems to have contributed to the Employment Tribunal getting the law seriously wrong"

Gendered Intelligence have apparently provided "training" for judges but the contents have been kept secret. Gendered Intelligence are also one of the parties challenging the Charity Commissions decision to give the LGB Alliance charity status.

Surely this is moving into a form of corruption? Privileged access to the judiciary to promote your ideology and then heading to meet your chums in court to seek their assistance in taking down your opposition?

Thank you Thomas Chacko for exposing what looks to me like a deliberate, systematic and serious abuse of our legal system.

🎶 let the sunshine in 🎶

The author forensically unpicks Maya's judgement and makes references to Maria Machlachlan's case where she was sanctioned for refusing to call her male born attacker 'she'.
It appears that the Bench Book takes a Stonewall approach to the law and facts by presenting self ID and all the associate word salad of assigned at birth etc as facts - hence the employment tribunal judge's incorrect
such strong conviction regarding transgender issues that he was ready to declare Ms. Forstater’s views incompatible with human dignity

It's a devastating and important takedown and demonstrates precisely what the Denton's report was all about.

While the origins may be shrouded in secrecy and FOIs have been resisted, we do know that Victoria McCloud, The Queen's Bench Master, High Court Judge and Britain's most most senior public transwoman, contributed to the Bench Book.

www.mumsnet.com/Talk/womens_rights/4231025-Maya-Forstater-s-appeal-discussion-thread-2?msgid=106904760

Judges are expected to be intelligent impartial individuals who do not get swayed by public opinion etc.

Their job is massively serious - they must be seen to be fair, to have carefully considered what they have heard, to have an eye to victim impact, and that justice must be seen to be done. Public protection, punishment, rehabilitation.

I wouldn't expect them to read that and think. Yup that's great stuff. About time!

Do they have any kind of mechanism to raise concerns in this doc?

In something so massively important, PPs are saying a trans group essentially wrote it???

???!!!!

That's unbelievable even to me!

Having a browse.

In the executive summary-

'The opaque
way this guidance is produced makes it hard to tell how thoroughly the
more startling claims (for example, that Roma lack the vocabulary to
express emotions) were investigated. '

What on earth? Any and all emotions?

I checked Google hard to find. Found this NHS England

'Mental health is treated as a greater taboo than any other health problem and is rarely discussed
amongst the Roma.
Communicating about Mental Health
 Roma may talk about being sad or feeling down in relation to specific problems in their lives.
In these cases it is acceptable to say that someone is depressed.
 Some may talk about ‘problems with the head’ or ‘being crazy’ instead of naming specific
mental health conditions. '

'They find it particularly difficult to talk about sensitive topics such as mental health
problems, fearing negative consequences. '

'Cultural rules and taboos can mean that Roma lack a vocabulary related to health, state of mind and
expressing feelings. '

So... It's a massive claim. That Roma people lack the ability to express emotions. Not read the bench book but if as quoted.

No way? No emotions expressed on faces. Joy? Excitement? Anger? Fear? They have no way to express any emotion at all?!

If anyone has the bench book. I mean if it's as bald a statement as that. The suggestion is they're essentially,, different in a really basic way to the other humans and loads of mammals on the planet.

Even my tortoise expresses fright.

It can't say that surely?!

'The Bench Book accepts that what it is saying is not what English
law recognises, saying “UK law has not yet caught up …”. This was toned
down a little in the February 2021 revision: that passage, now at 7,
sets out the same wide explanation of transgenderism before saying
“UK law presently makes express provision only for those who wish to reassign their
gender…” The implication that UK law is eventually going to fall
into line with the authors of the Bench Book remains. It is not
really for the Judicial College to put forward a radically different
concept of transgenderism to the one recognised by Parliament, and
to instruct judges that that is how they should approach the issue
on the assumption that at some stage in the future Parliament will
come to the same understanding as the authors of the Bench Book'

That's enough for one night!

The bench book contains stuff like this?

That's... Ok I'm really taken aback.

Okay, this is good. Very good.

For legal fans, and I know there are many here, this is a barrister doing his work for a respected think tank to dismantle the Equal Treatment Bench Book, rather than a hapless claimant.

The intro from a Senior Circuit Judge applies the usual masterful understatement:

Readers of Chapter 12 [Trans People] may perceive a lack of balance in its general tone and trajectory.

108 paragraphs of dissection of all the things wrong with it, cross-referencing with all the cases where the police and courts have gone awry - Forstater, MacLachlan, Miller, the gang of transwomen in the Tube attack, the fined "is it a man or a woman?" Aspergers teenager. And references to the Reindorf report.

He's clearly been spending quite some time on this, and waiting for the Forstater appeal to conclude. Forstater's original loss may well have been the catalyst.

Judge's intro again:

In 2019, an Employment Tribunal ruled that Maya Forstater’s belief (held and expressed by her as a private individual) that sex is an immutable biological fact is ‘not worthy of respect in a democratic society’. Reading this, many thousands of reasonable people must have scratched their heads in bewilderment. Such a belief may have become, in very recent times, the subject of controversy, but how could it possibly be ‘not worthy of respect’? This decision has been overturned on appeal. The flawed reasoning which led to it is meticulously analysed in this new Policy Exchange paper by barrister, Thomas Chacko. Further, his analysis led him to an issue of wider and deeper concern than one tribunal’s legally incorrect decision: the nature and use in court of the Equal Treatment Bench Book (ETBB) - a document issued by the body responsible for training judges, the Judicial College.

I think it is fairly obvious that different rules have been applied to sex offenders who identify as transgender. They seem to avoid custodial sentences. It is clear that women cannot expect fairness or protection from the law in this country.

Good point - I think those sex offender cases didn't get a mention, although I haven't seen them yet. I sense that maybe the author as a barrister would be unable to directly criticise sentencing.

He did cite the remarks on the Tube attack though:

However, this approach, where trans people are treated as unusually vulnerable to the beliefs of others, seems to have spread among the judiciary. Because sentencing remarks are rarely reported (and when they are, they are not comparable to fully reasoned judgments) it is hard to find out whether the Bench Book has played a role, but there have been several recent cases where judges seem to have taken their decisions, like Judge Tayler, based on a very high view of the fragility of trans people. In June 2018, a group including three transwomen in their twenties (Tamzin Lush, Tylar-Jo Bryan and Amarnih Lewis-Daniel), who had been drinking, were insulted near Leicester Square by a 19 year old boy who said “You need a fanny to be a woman”. One of them kicked him to the ground, and the three of them (joined in, it seems, by Ms Bryan’s sister Hannah Bryan) proceeded to stamp on him and kick him in the head. The teenager was taken to hospital. When Lush, Bryan and Lewis-Daniel were sentenced in late 2020 for violent disorder, the Judge Nigel Seed QC avoided custodial sentencing and said, “I accept that what happened to you in the beginning of this incident is entirely wrong, and people like you should not be subjected to that sort of abuse in public or anywhere… You are being punished for your overreaction to someone who has escaped punishment altogether.” While the teenager’s behaviour was obviously reprehensible, it is not clear why the judge saw his being knocked to the ground and then being kicked in the head by a gang of older males as “escaping punishment altogether” for insulting them. As with the MacLachlan case, it seems that examples of rather stereotypical young male violence, attacking someone weaker for failing to show sufficient respect, are treated very differently by the courts if the offender is a transwoman.

That's an important point Ritasueandbobtoo9
I recall numerous cases where judges / magistrates have not sent sex offenders to prison supposedly because prison might be harmful to them? Hopefully someone will start tracking down the details and recording them.
I also wonder whether the unbelievable judgement that a trans sex offender's rights are more important than the rights of vulnerable women in prison to safety and protection from fear and risk of sexual assault can also be traced back to the Bench book?
The fact that a number of perverse judgements (like Maya's) can be specifically be linked to this raises the question - how many others? Is this a scandal where the deliberate creation of a "sacred caste" allows criminals often targeting woman and children to evade justice via a process of interested parties influencing the judiciary?

Thomas Chacko is a tax barrister. I’ve worked with him professionally and I’m extremely pleased to see such a bright mind tackling the issues in the bench book.

Before anyone asks why tax specialist barristers are getting involved in this - Jo Maugham is also tax barrister. It’s probably because those practicing equality law don’t want to get their hands dirty.

Before anyone asks why tax specialist barristers are getting involved in this - Jo Maugham is also tax barrister. It’s probably because those practicing equality law don’t want to get their hands dirty.

Maybe it's also that tax barristers want to get their hands clean.

Or at least have the opportunity to get into some meaty philosophical stuff.

Hooray, I've just spotted that there is a "surprising" in there! How could I imagine they'd forget that? They know we love it.

Perhaps most importantly, it fails to acknowledge that many of the claims it makes are vigorously disputed, giving the impression that there is an established consensus on areas where there is not and presenting those who disagree with those claims as outside reasonable opinion. Given that Chapter 12 was redrafted in February 2021, when those working on it must have been aware of the litigation in progress on these issues as well as the state of public debate, this is extremely surprising.

Interestingly, having recently done some training with the Judicial College, and despite the constant reference to the ETBB, the majority of of trainers referred to sex not gender throughout. One of them appeared, to my ears, to make a special point of emphasising SEX disparity in sentences, for example.

This criticism from a couple of months ago mirrored some of the concerns in this excellent piece:

www.mumsnet.com/Talk/womens_rights/4235549-Transgender-campaigners-have-too-much-say-over-expanding-hate-crime-laws-says-top-judge

It seems to be a focus for Policy Exchange.

I still haven't read the full piece but have picked up lots from the comments and will get a chance later.

It occurred to me that there could be loads of appeals from this and what about sentence reviews? The guy (19 year old) may well have been obnoxious but we should, as a society, expect some justice when a person is violently attacked.

I would be interested to see another case come before the courts where a woman is expected to address her abuser as 'she' and see what happens. \there ought be to a few uncomfortable Judges out there.

Our Judiciary is independent of government and rightly so, but there is always the risk that something like this could happen. I would think the Lord Chief Justice would be involved. They really don't like stuff like this but it should never have happened, the checks and balances don't seem to be in place. This where the need to be seen to be anti-discriminatory has overruled law.

Denton's did a really good job didn't they? I always thought, no matter what, democracy was safe in the UK but now my faith in our institutions has been broken.

That's good news Penguin but are lawyers getting the same training because I know a lot are coming out of their training with TWAW mantra ringing in their ears. One expects this is going to change

My goodness. I really have no words. This absolutely never should have happened. A carefully planned attack from every angle. This is absolutely shocking. The 'authors' of this should be prosecuted.