Kelly v Leonardo Employment Tribunal Thread 4

She is right in that the SC judgement was about the Equality Act and does not necessarily apply to other legislation. It is not guaranteed that the words "man" and "woman" in the Workplace Regulations refer to biological men and women.

The judgement that "man" and "woman" in the EA refer to biological men and women is binding on this judge. She has been careful not to contradict that. The SC's reasoning in arriving at that conclusion is not binding on her. However, one of the reasons I think an appeal will succeed is that her reasoning in deciding to interpret the Workplace Regulations to allow trans-identifying men into the women's directly contradicts the SC's reasoning. That strongly suggests that, were the Workplace Regulations to come before the SC, they would decide that "man" and "woman" in those regulations do indeed refer to biological men and women.

She's wrong.

She's wrong.

Read paras 180-182. It explains quite clearly where the 2025 judgement applies and where it doesn't.

I was astonished that she went against the SC. It is the highest court in the land and its word is binding.

I look forward to an EAT judge severely reprimanding her for misrepresenting the FWS ruling.

Unfortunately, this is not new. Some judges do bend the law or misapply the facts to achieve what they consider to be the desired outcome. That threatens the integrity of the justice system. It leads to some litigants not getting justice and others having to appeal, sometimes all the way to the Supreme Court, to get the correct outcome. It shouldn't happen but it does.

At least our courts are not as activist as the ECHR. That court is increasingly interpreting the Convention in ways that go well beyond anything justified by its actual words. I would prefer the UK to remain within the ECHR, but the more the court behaves as an activist court, the stronger the arguments for leaving.

Thanks again @prh47bridge. What is considered acceptable in terms of moral propriety is so subjective. And I'm not sure that women's need for privacy and safety away from men is something that evolves over time to no longer be necessary.

I find the judgement surprising because my assumption is that a judge would look at the law objectively, as it stands, not try to bend the law to what they think it should be or might be in the future. I find it worrying that a judge would do that.

My whole LinkedIn feed is full of batshit advice and commentary today. ☹️

"In mixed sex loos men ‘accidentally’ leave the door open"

Men leave the door open all the time even in men's loo's - although usually only when urinating. Privacy in men's bathroom usually involves turning your back to everyone so plenty of men just push the door too.

Japanese trains have male only toilets / urinals you can see inside - which is how you know it's occupied.

"If they are holding their penis at the time a woman looks in"

This usually happens when a man urinates....

Why has the judge gone down this route?

At one point she says, "Moral propriety is a social construct and standards of decency change over time, and accordingly it must be interpreted in a modern context."

I think that sentence is very telling. I think this judge believes that allowing trans women to use the women's facilities is in line with current standards of decency and moral propriety. Starting from this position, she has, in my view, bent the law to accommodate her beliefs. It wouldn't surprise me to find that she thinks the SC got FWS wrong. She certainly does not seem to accept the SC's reasoning.

I'm sure she genuinely believes she is right. She may believe her reasoning is sound and that the higher courts will uphold her judgement. If she does, I suspect she will be disappointed.

I have commented on the Sandie Peggie thread that the judgement in this case looks very appealable to me. I have been asked if I could outline here the areas I think are best appealable. It is hard to know where to begin!

Some thoughts:

• Whilst the Supreme Court judgement in FWS was not about toilets, nor does it mention toilets. However, the SC was clear that some provisions require a biological interpretation of sex. They specifically stated that this included changing rooms. It is therefore hard to see how toilets are an exception.
• The SC was clear that "women plus trans women" is unworkable for provision of services, and that therefore provision is either mixed sex or it is for biological men or biological women. This judgement ignores that completely.
• The judge dismisses the idea that women can, in general, tell that a trans woman is actually a man with no apparent basis for doing so.
• The judge decided that Croft means that any man with a GRC can use the female facilities, ignoring the fact that the SC said that this would undermine privacy and decency between the sexes.
• Even if she was right about this, it is clear from Croft that a man without a GRC is not entitled to use the female facilities, and yet her judgement allows men to self-identify into the female facilities.
• She says that Croft decided that a trans woman who had completed 2 years of living as a woman had a right to use the female toilet. Croft said no such thing. The judgement said that Croft, having only just started living as a woman, did not have the right to use the female toilet. It did no say that he would gain that right after 2 years.
• Her reading of Croft is highly selective. For example, she quotes part of paragraph 56 in support of her position, ignoring the fact that it says, "ordinary good practice requires, as it seems to us, that an employer is to be expected to require those who are, or who are believed by him to be, at law males to use only the men’s facilities and those who are at law or who are believed by him to be females to use only the women’s".
• She misrepresents the provisions of the Workplace Regulations regarding disabled toilets, inventing a problem that does not exist. There is no requirement to control access to prevent use by individuals who are not disabled, and the employer in this case does not control access.
• The judge decided that, since women were only 20% of the workforce and only one woman had complained, the rights of the men should prevail. That isn't how the Equality Act works. If there had been racial discrimination but only one black person complained, would she have used that as justification to dismiss the complaint?
• She says, probably correctly, that the requirement to control access to the women's facilities is limited to what is reasonably practicable, then decides, without any apparent justification, that it is not reasonably practicable for an employer to set rules based on biological sex and expect employees to follow them.

There is plenty more I could say, but that is my starter for ten. I will be surprised if this judgement survives appeal. Much of it appears indefensible to me. Of course, in the wider picture that is a good thing as an EAT judgement is binding on Employment Tribunals, but Maria Kelly should not have to go through this.

"In mixed sex loos men ‘accidentally’ leave the door open"

Men leave the door open all the time even in men's loo's - although usually only when urinating. Privacy in men's bathroom usually involves turning your back to everyone so plenty of men just push the door too.

Japanese trains have male only toilets / urinals you can see inside - which is how you know it's occupied.

"If they are holding their penis at the time a woman looks in"

This usually happens when a man urinates....

I have asked loads of departments at first, the HSE, fire brigade, police, RSPoA, DfE, looked at coroners records etc.
How many of us reported voyeurism and assaults? I didn’t. ‘Just’ a man masturbating by the entrance to the ladies in the toilets in the park (from about 50ft away). I was walking home from school and ran. If I told my mum and dad at the time I doubt it was logged. However I bet those council-run park toilets have shut down now. I noted so many close due to ‘lewd’ behaviour.

This was interesting because it shows councils haven’t got data either.
https://translucent.org.uk/how-many-complaints-about-trans-women-using-toilets/

That’s a lot of work the Translucent organisation has put in to get not much. But the fact they got not much, constrasts with newspaper reports when men are taken to court, and their own reports about what’s going on in toilets being so bad.

Again, it just proves there’s no system of reporting it. What would a management team do if their cinema/supermarket/shopping centre had a bad incident happen in their loo? They certainly would try and ‘kill’ any story.

I have commented on the Sandie Peggie thread that the judgement in this case looks very appealable to me. I have been asked if I could outline here the areas I think are best appealable. It is hard to know where to begin!

Some thoughts:

• Whilst the Supreme Court judgement in FWS was not about toilets, nor does it mention toilets. However, the SC was clear that some provisions require a biological interpretation of sex. They specifically stated that this included changing rooms. It is therefore hard to see how toilets are an exception.
• The SC was clear that "women plus trans women" is unworkable for provision of services, and that therefore provision is either mixed sex or it is for biological men or biological women. This judgement ignores that completely.
• The judge dismisses the idea that women can, in general, tell that a trans woman is actually a man with no apparent basis for doing so.
• The judge decided that Croft means that any man with a GRC can use the female facilities, ignoring the fact that the SC said that this would undermine privacy and decency between the sexes.
• Even if she was right about this, it is clear from Croft that a man without a GRC is not entitled to use the female facilities, and yet her judgement allows men to self-identify into the female facilities.
• She says that Croft decided that a trans woman who had completed 2 years of living as a woman had a right to use the female toilet. Croft said no such thing. The judgement said that Croft, having only just started living as a woman, did not have the right to use the female toilet. It did no say that he would gain that right after 2 years.
• Her reading of Croft is highly selective. For example, she quotes part of paragraph 56 in support of her position, ignoring the fact that it says, "ordinary good practice requires, as it seems to us, that an employer is to be expected to require those who are, or who are believed by him to be, at law males to use only the men’s facilities and those who are at law or who are believed by him to be females to use only the women’s".
• She misrepresents the provisions of the Workplace Regulations regarding disabled toilets, inventing a problem that does not exist. There is no requirement to control access to prevent use by individuals who are not disabled, and the employer in this case does not control access.
• The judge decided that, since women were only 20% of the workforce and only one woman had complained, the rights of the men should prevail. That isn't how the Equality Act works. If there had been racial discrimination but only one black person complained, would she have used that as justification to dismiss the complaint?
• She says, probably correctly, that the requirement to control access to the women's facilities is limited to what is reasonably practicable, then decides, without any apparent justification, that it is not reasonably practicable for an employer to set rules based on biological sex and expect employees to follow them.

There is plenty more I could say, but that is my starter for ten. I will be surprised if this judgement survives appeal. Much of it appears indefensible to me. Of course, in the wider picture that is a good thing as an EAT judgement is binding on Employment Tribunals, but Maria Kelly should not have to go through this.

I have commented on the Sandie Peggie thread that the judgement in this case looks very appealable to me. I have been asked if I could outline here the areas I think are best appealable. It is hard to know where to begin!

Some thoughts:

• Whilst the Supreme Court judgement in FWS was not about toilets, nor does it mention toilets. However, the SC was clear that some provisions require a biological interpretation of sex. They specifically stated that this included changing rooms. It is therefore hard to see how toilets are an exception.
• The SC was clear that "women plus trans women" is unworkable for provision of services, and that therefore provision is either mixed sex or it is for biological men or biological women. This judgement ignores that completely.
• The judge dismisses the idea that women can, in general, tell that a trans woman is actually a man with no apparent basis for doing so.
• The judge decided that Croft means that any man with a GRC can use the female facilities, ignoring the fact that the SC said that this would undermine privacy and decency between the sexes.
• Even if she was right about this, it is clear from Croft that a man without a GRC is not entitled to use the female facilities, and yet her judgement allows men to self-identify into the female facilities.
• She says that Croft decided that a trans woman who had completed 2 years of living as a woman had a right to use the female toilet. Croft said no such thing. The judgement said that Croft, having only just started living as a woman, did not have the right to use the female toilet. It did no say that he would gain that right after 2 years.
• Her reading of Croft is highly selective. For example, she quotes part of paragraph 56 in support of her position, ignoring the fact that it says, "ordinary good practice requires, as it seems to us, that an employer is to be expected to require those who are, or who are believed by him to be, at law males to use only the men’s facilities and those who are at law or who are believed by him to be females to use only the women’s".
• She misrepresents the provisions of the Workplace Regulations regarding disabled toilets, inventing a problem that does not exist. There is no requirement to control access to prevent use by individuals who are not disabled, and the employer in this case does not control access.
• The judge decided that, since women were only 20% of the workforce and only one woman had complained, the rights of the men should prevail. That isn't how the Equality Act works. If there had been racial discrimination but only one black person complained, would she have used that as justification to dismiss the complaint?
• She says, probably correctly, that the requirement to control access to the women's facilities is limited to what is reasonably practicable, then decides, without any apparent justification, that it is not reasonably practicable for an employer to set rules based on biological sex and expect employees to follow them.

There is plenty more I could say, but that is my starter for ten. I will be surprised if this judgement survives appeal. Much of it appears indefensible to me. Of course, in the wider picture that is a good thing as an EAT judgement is binding on Employment Tribunals, but Maria Kelly should not have to go through this.

Who would have written that guidance?

I listened to an episode of the Crime Agents podcast recently. They were discussing the abysmal conviction rates for rape. The guest was a DCI who does a lot of work in this area.

She said she believe conviction rates would improve if rape case were t
heard without a jury. She said female jurors in particular are less likely to believe victims. How depressing 🙁