Sarah Phillimore and Robin Moira White interviewed by Andrew Doyle

At least 3 people alive agree the earth was created in mere days.

More people agree the earth is flat

Even more agree we never landed on the moon

Doesn't mean they are correct

Good to see that I and Lady Haldane agree about what ‘sex’ means in the Equality Act and why. Oh and Lady Hale. Helpful when next in court or tribunal.

Are we going to take away a perception that somebody is a particular sex if they are perceived in a particular way? It is a bit like the question we were asked a moment ago about the Gender Recognition Act: do we need to change it and, if so, what would be the consequences? You know that Karon and I disagree about whether there is a definition in there at the moment that is of any use. I do not think that there is. My question would be: if we strengthen it or add to it, what is the consequence of doing that? If we strengthen “biological”, are we going to exclude trans women from circumstances where they should not be excluded. Remember that I have accepted there are particular circumstances where perhaps an exclusion is justified. Or are we going to create a wholly different category who are kept in a little box and not allowed to engage with society properly? Understanding what the consequence is of doing anything about a definition is the important bit about deciding whether to define something in a particular way.

If a person with the protected characteristic of gender reassignment falls in a forest, and no one is around to perceive them…
… would them have any sex at all?

Dr Foran: That is just not how statutory interpretation works. There is a definition set out in the Act, and that applies across the entire Act.

Mic drop.

Thanks again @ScrollingLeaves - really useful stuff. The funny thing is that if you read every mention of Sex in the EA as if it were legal sex not biological sex, it makes a nonsense of other protected characteristics such as Sexual Orientation. What is sexual orientation if it is not based on biological sex?

Not at all.

Quite.

The legal witness Dr Michael Foran brings up that very point. Unfortunately sexual orientation in the Equality Act could be a casualty too in how it interacts with the GRA through Lady Haldane’s unchallenged judgement that sex is legal sex. (I don’t properly understand it.)

Committee meeting 31 January
committees.parliament.uk/oralevidence/12639/pdf/
From Q.49

Dr Michael Foran
Since we are bringing it up, if Halden is correct and sex means legal sex, then another difficulty in terms of direct and indirect discrimination is that every single discrimination case that has been decided on the basis of direct discrimination or on the grounds of sexual orientation is wrong, every single one of them, because sexual orientation in the Act is defined by someone who is attracted to a member of the same sex, whatever that means, a member of the opposite sex, whatever that means, or either the same sex or the opposite sex*.

^Now, I am a gay man. I am not attracted to a legal category; I am attracted to a biological category that may be a subset of a legal category. What that means is if I get fired because of my sexual orientation and seek to sue for direct discrimination, the argument will be, "You do not meet the standard here of direct discrimination. You meet indirect discrimination standards because it is more likely to affect people who are attracted to one biological category." If that is correct, that would be a radical change to how we understand the law in this area*.

Robin Moira White: I understand the point, but therefore what you have shown with an erudite and logical argument is that sex does not always mean the same thing section by section through the Act.

Dr Foran: That is just not how statutory interpretation works. There is a definition set out in the Act, and that applies across the entire Act.

Sally Brett: I think I would more endorse what Robin has said. It has highlighted as well that there is a difference of legal opinion on this and, given that difference of opinion, if there were going to be any move to create specific definitions that refer to biological sex, that should be carefully considered and properly consulted on—because there is this difference of opinion there. If someone has reassigned their gender, they have a desire to live in their acquired gender, not to live as a third gender, separate from man/woman.

Thanks again @ScrollingLeaves - really useful stuff. The funny thing is that if you read every mention of Sex in the EA as if it were legal sex not biological sex, it makes a nonsense of other protected characteristics such as Sexual Orientation. What is sexual orientation if it is not based on biological sex?

Michael Foran, one of the other lawyers on the S35 consultation panel explains all this really well.

We also see that Stonewall has been campaigning for years to remove the Single Sex exceptions from the EA. Why would they bother if it was based on legal sex not biological sex?

The ‘difference in legal opinions’ mentioned above does not seem to me to be a legitimate legally argued difference, but one based on wishful thinking and not clearly argued at all. I can follow Michael Foran’s explanations of the detail and logic. There are views from other lawyers that I can’t follow or find the logic in and I feel that I am not alone.

I also noticed that Lord Falconer who seems to have confusion over what sex is, seems to resort to bluff and ridicule rather than actually explaining his point clearly.

Then there is this from the same 10th February Committee, where RMW again disagrees there is a clear definition of sex as biological in the EA and also argues against one being introduced. To my mind, given the EA does define sex as biological where it says male and female of any age, this means RMW wants the law to interpret away from the intended real meaning of the sex based exceptions in the EA ( except where RMW thinks they should apply).

Excerpt from:
committees.parliament.uk/oralevidence/1693/html/

Chair: Some of the written evidence that we received suggests that the Gender Recognition Act and the Equality Act provide different interpretations of the word “woman”. I appreciate that this can be quite contentious, but in the panel’s view—I will come to each of you individually, or put your hands up if you would like to comment on this— should the Equality Act be clearer in its definitions of woman and man, and whether it is referring to biological sex or legal gender?

Karon Monaghan: It seems to me that it does. It defines sex. It says that sex means being a man or woman, and then it says, under the interpretation provisions, that being a man is being male and being a woman is being female. In other words, male and female are biological characteristics, so it defines sex very specifically as a biological characteristic. Then it defines gender reassignment as the process or outcome of having gender reassigned. It does define sex. It may be misunderstood, but it does define it.

Q88
Chair: And you think that it is adequately clear?

Karon Monaghan: Yes. It defines it as a biological characteristic.

Naomi Cunningham: I agree with that.

Robin Moira White: They might, but the word “biological” does not appear anywhere in the Act. I would answer the question, in a sense, with a question: what is the point of the definition? If what we do is redefine the Act, or add to the definition in the Act, to say that it is limited to biological sex, we create all sorts of evidential difficulties for particular people. Are we going to take away a perception that somebody is a particular sex if they are perceived in a particular way? It is a bit like the question we were asked a moment ago about the Gender Recognition Act: do we need to change it and, if so, what would be the consequences?

You know that Karon and I disagree about whether there is a definition in there at the moment that is of any use. I do not think that there is. My question would be: if we strengthen it or add to it, what is the consequence of doing that? If we strengthen “biological”, are we going to
exclude trans women from circumstances where they should not be excluded?
Remember that I have accepted there are particular circumstances where perhaps an exclusion is justified. Or are we going to create a wholly different category who are kept in a little box and not allowed to engage with society properly?
Understanding what the consequence is of doing anything about a definition is the important bit about deciding whether to define something in a particular way.

Chair: Thank you. Sally.

Sally Brett: I think I would more endorse what Robin has said. It has highlighted as well that there is a difference of legal opinion on this and, given that difference of opinion, if there were going to be any move to create specific definitions that refer to biological sex, that should be carefully considered and properly consulted on—because there is this difference of opinion there. If someone has reassigned their gender, they have a desire to live in their acquired gender, not to live as a third gender, separate from man/woman.

That is utterly bonkers!

how on earth can ‘female’ and ‘male’ not refer to gonads/genitals/chromosomes as set out in Corbett v Corbett?

Biological sex is a matter of scientific fact. Legal sex is a construct that tries to out-manoeuvre biology.

I had the impression here in that section (in bold) that RMW was talking about sex in the Equality Act. If so, it had been made clear in the meeting a little earlier that to other people on the committee sex meant biological sex, even if not to RMW.

Thank you for that recap @ScrollingLeaves - it’s very useful to have it all written down. It does seem that my assumption was fair given the context. I still fail to see what is complicated about sex, whether biological or ‘legal’ - whatever that means.

It seems like the concept of legal sex has never been properly defined. That doesn’t make it complicated, just a newly invented
ill thought through idea designed to suit the needs of some. The only complication is generated by its divorce from fact and the constant reshaping necessary when it bumps into real life situations.

I always like getting back to basics, to simple truths. Biological sex is fully and absolutely defined and regardless of the feelings of some, is a universal truth.

Everyone knows what biological sex is, even the ones who claim they don’t.

At least RMW’s physical legal voice is impressive, because RMW’s written legal words are embarrassing.

Google alerts must be working overtime for them.

Snap.

Sorry such a miswording.
Not transwoman here. Transman.

(Dr Michael Foran had brought up earlier to show how problematically a GRC May interact with the Equality Act, in the case of a transwoman with a GRC who is pregnant losing her maternity rights as a biological woman by being treated as though (s)he is a man because of the GRC “changing” her sex).

Re:
RobinMoiraWhite · Today 16:23

RichardBarrister · Yesterday 22:53

“In what way was Maya’s fit of giggles disrespectful?”

RMW was claiming that ‘[biological] sex is not simple… it is not straightforward ’ in a fact free attempt to undermine the pc of Sex in the Equality Act to the detriment of women.

^Maya whispered “Yes it is” to Helen Joyce and then they laughed*.

RMW trying to make out that they were doing any more than that is inaccurate and unjustified. Unsurprising though.

I see you have had to put ‘[biological]’ in brackets. Presumably because you acknowledge it wasn’t there. This was a discussion of what ‘legal’ sex means - far from simple, as recent case law shows.

Disagree with me all you like but don’t misrepresent me.

Having looked at the House of Commons transcript, I do think it is understandable, that RichardBarrister stated that RMW “was claiming [biological] sex was not simple” rather than ‘legal sex’.

That was the point at which HJ and MF were laughing.

Also, if you read a bit earlier in the transcript you see others on the committee had been saying sex in the Equality Act was clearly biological, but RMW had disagreed which also bears out why Richard Barrister had said this.

But, I am not a lawyer so I am surmising this: RMW may have gone on to bring in ‘legal sex’ when he discussed the case which the expert legal witness Dr Michael Foran had brought up earlier to show how problematically a GRC May interact with the Equality Act, in the case of a transwoman with a GRC who is pregnant losing her maternity rights as a biological woman by being treated as though (s)he is a man because of the GRC “changing” her sex.

This is an excerpt of the transcript of the
committees.parliament.uk/oralevidence/12639/pdf/
relevant to where RMW was speaking ( I have put in bold) and Helen Joyce and Maya Forstater laughed when RMW said sex was simple.

(Earlier in the meeting if you read the transcript it was discussed that sex in the Equality Act is biological because it qualifies ‘man’ with male of any age and ‘woman’ by female of any age, which can only be biological. RMW had disagreed it was biological, saying all it did was say a man could be a boy or a woman could be a girl.)

Rachel Maclean: There are four of you, and this is so complicated to navigate and so different from all four of you in different and very technical ways. It is really hard to disagree with the statement that there will be a chilling effect on providers of single-sex services.

Naomi Cunningham: Yes, it is difficult.

*Lord Falconer of Thoroton+: Is that it? We cannot make life more
generous for transgender people.

Rachel Maclean: Here with respect, Lord Falconer, we are talking about the legal ramifications.

Lord Falconer of Thoroton: Yes, and that is what I am talking about. I am talking about the legal ramifications.

Rachel Maclean: I am trying to tease out with this particular—

Lord Falconer of Thoroton: Yes, and I am trying—

Rachel Maclean: I agree, we should try and make life better for transgender people, but I also want to make life better for women who need single-sex spaces and need to be safe. I want to balance the two. The two have to happen at the same time. We do not raise up one group by trying to take away rights and protections from another. That is the separate policy question.

Robin Moira White: The Haldane judgment applies to the Equality Act as it is now.

Rachel Maclean: Yes, I know, but if you remember when I started my line of questioning, from my briefing that I have had, one of the reasons of the UK Government was to say it is about the operation of the Equality Act given the new cohort of people that will be coming into it.

Robin Moira White: No, but to justify using section 35, you have to have an adverse effect on the operation—

Rachel Maclean: Do you not think a chilling effect is an adverse effect?

Robin Moira White: Forgive me. What we have done is explore the
implications of the Haldane judgment on the Equality Act as it is now.

Rachel Maclean: Yes, I understand.

Robin Moira White: Not with what difference the GRR might make to it. I have practised for 30 years in discrimination and I have watched judges take the Equality Act. I really enjoyed reading Michael's paper, a lot of which sets out some of the difficulties with the Equality Act as it is now. That is his point in some points. I disagree that the GRR makes a difference.

Dr Foran: Makes them worse.

Robin Moira White: What we tried to do in the Equality Act is express ways of balancing. There are other protected characteristics, but we are obviously focused on sex. What we have managed to demonstrate is that sex is not simple, not straightforward. What happens very quickly when we try cases on equal pay is there is one poorly argued judgment on the effect of a trans person on an equal pay claim. It is poorly argued because it was only argued by one side of the case in the EAT. There is effectively no useful case law in that area. There will be, ultimately. Ultimately, we will get to it, but actually what sex is, is complex, and that is what we have shown.

We can try and write good law, and people have tried to write good law. Partly, we have to trust the courts to look sensibly at the particular provision. There is a provision that says, as Michael is saying, a woman has a right to pregnancy rights. Is a pregnant trans man to be treated as a woman if they go to their employer and say they want pregnancy rights? I would say yes, because they are in an unusual circumstance, but until that occurs in front of a tribunal, we will not know*.

I had the impression here in that section (in bold) that RMW was talking about sex in the Equality Act. If so, it had been made clear in the meeting a little earlier that to other people on the committee sex meant biological sex, even if not to RMW.

I'm honestly past caring what 'legal sex' means, my interest is long gone. There are two sexes, no one changes sex, some females need female only spaces, male people are going to have to get over this since the world is not solely for and about them. They are welcome to create additional facilities as they need.

And yes, I'd have laughed too at 'it's complicated'. Borrow a toddler: they've got it all figured out and will explain.

This are wise words...

RobinMoiraWhite · Today 16:23

Disagree with me all you like but don’t misrepresent me.

When you stop misrepresenting the Equalities Act 2010.

Does that sound fair enough?

Disagree with me all you like but don’t misrepresent me.

DELETED if we do.

DELETED if we don't.

Some people are never satisfied.

I understood legal sex to be fairly simple, where it doesn't correspond to biological sex it's a fiction.

Shocked! 😲 I'm shocked I tell you!

You just can't resist, can you 🤣

I see you have had to put ‘[biological]’ in brackets. Presumably because you acknowledge it wasn’t there. This was a discussion of what ‘legal’ sex means - far from simple, as recent case law shows.

Disagree with me all you like but don’t misrepresent me.

Can concur. Blokes are definitely still regarded as human. Even the fat, white, ones.

I listened to that committee hearing rather than watched it.
Always a discombobulating experience, hearing a male voice stating theyself to be a female.

I think that Joyce pointed out to Forstater that she was being captured on camera saying 'no it's not' to the proposition that sex was very complicated. That is when they got into a bit of a fit of laughter.

One thing I am bemused about. White seemed to be amazed that White was regarded by someone as being, and called (quote) a fat white bloke in the awful wig pretending to be a woman and then goes on to state When an “other” is no longer regarded as “human .

Since have blokes (whether fat, white and with or sans wigs) no longer been regarded as human? Blinking' heck, it seems they are the only ones regarded as human, and there is some attempt to push for women to be regarded as other than a very real biological female sex. Which no amount of 'identity' can result in a male turning into one. You couldn't make up this level of flat earthedness.