Stonewall statement on misinformation about the Diversity Champions Programme

[WhatyoutalkingaboutWillis]

www.stonewall.org.uk/about-us/news/stonewall-statement-misinformation-about-diversity-champions-programme

Finally, as part of our work with employers we acknowledge that there has been a lack of clarity around non-binary identities within the current legal framework. However, the recent Taylor v Jaguar Land Rover employment tribunal found that non-binary and gender fluid people are protected by the Equality Act. For employers who wish to go above and beyond the law in creating inclusive workplaces, we suggest that internal policies could refer to ‘gender identity’ as a term that more clearly includes all trans, non-binary and gender diverse people.

Am I over reacting to the sentence "For employers who wish to go above and beyond the law"

@BluebellTimeInKent

Procrastinator it's a first instance decision and therefore not binding, but even so, it doesn't tell us much. The Tribunal accepted that the Claimant had told her employers she was intending to undergo gender reassignment as far back as 2017 - bringing her from that moment within the scope of s.7 Equality Act which defines gender reassignment as undergoing, proposing to undergo, and having undergone gender reassignment. That must be right: if someone announced an intention to transition and was bullied in the workplace and left soon after, the employer could not say "well, they didn't have time to transition as they were bullied out for announcing an intention to do so, therefore they are not protected."

The Claimant said, and the Tribunal accepted, that in March 2017 she had told her employer that she intended to transition, and that she was transitioning from male to female (para 19). She later in April and May described her current state as "gender fluid" but there is no suggestion she had renounced her stated intention to transition to female (and indeed she gave evidence to WESC describing herself as a trans woman). In June HR were describing her as transitioning and using 'she' pronouns.

The employer's paper-thin defence until mid proceedings was that the Claimant hadn't named the people who were bullying her and therefore they couldn't possibly be expected to deal with it.

It was only after proceedings began, at a case management hearing, that the employer - one hypothesises, shitting themselves and grasping for straws - noticed the words 'gender fluid' and tried to argue that if the claimant was gender fluid then she didn't count as trans for the purposes of the Equality Act.

That was absolutely doomed. Her stated intention to transition from March 2017 brought her within the s.7 definition whether or not she had ever followed it through.

However, it doesn't follow that a person who had not stated an intention to undergo gender reassignment but simply "identified" as non binary would be covered. It would be fact specific and would be up to the tribunal to make findings as to whether they were covered, depending on what they had said. "I identify as non binary" is unlikely to attract protection, whereas "I am undergoing a process of transition and currently view myself as non binary" quite possibly would.

What Bluebell said.

I agree, it seemed clear to me that s. 7 applied, that the case doesn't represent some massive shift in understanding of gender reassignment, and that JL handled things so badly that they were sensible not to appeal. So we will never know what the higher courts would have found.

'However there are instances attributed to women - for example, one of the women said "nice to see you in your attire, you have cracking legs" and the Tribunal accepted that this was unwanted conduct and that "Clearly, this was unacceptable, and would be equally unacceptable if a male made this comment to a female."'

The fuck?

If a woman at work said that to me when I had a new outfit on I'd say thanks! And probably find a way to compliment her in return.

That's fucking baffling.

So we're to treat people as they present full stop. But if we do. We're also wrong?

Jesus fucking Christ.

I mean we don't know her tone but on the face of it, she was trying to be nice!

Our in-house team provides expertise, evidence and recent best practice ...

'Best practice' is a slippery term. Who decides what's best? Based on what criteria? Best for whom?

"nice to see you in your attire, you have cracking legs"

I’ll be honest from the list of microaggressions someone posted the other day it seemed like if you didn’t say something like this to a TW they’d consider it a microaggression.

I agree otherwise that no-one should be bullied in their workplace for transitioning or being trans.

Stonewall's best practice was illustrated recently in a letter sent from their Director of Trans Inclusion to Allison Bailey's Chambers. This badly written letter threatened the service agreement if action wasn't taken against Allison. Robin M White tried then to argue there was no actual relationship relevant to an employment tribunal.

So either Stonewall thinks their inexperienced amateur staff are both advising on best practice and that they are irrelevant to employment and can be ignored.

Our advice is based on the Equality and Human Rights Commission’s Equality Act Code of Practice, which was recently reaffirmed in the High Court.

Like the Taylor v Jaguar case, Ann Sinnott's unsuccessful request for judicial review did not create case law. It was a preliminary hearing to request a full hearing:

The Judge decided that AEA’s question about the lawfulness of the EHRC’s guidance should not be put in front of the courts. His job was not to decide what the correct interpretation of the law was at this stage.

legalfeminist.org.uk/2021/05/10/aea-v-ehrc-an-explanation/

If stonewall want to imagine a world in which Ann's case creates legal precedent then they should pay attention to the many things the judge said that directly contradict the misinformation they are pushing out to 850+ organisations in the UK. From the link above:

On the first argument, he agreed that the COP said “should,” not “must.” ... After “should” comes the disclaimer “However,” followed by an explanation of where exclusion will be reasonable

He also agreed that if there are public bodies which have understood a ‘should’ as a ‘must,’ these are capable of challenge by individual service users to individual service providers, whether inclusive or exclusive.

It may well be that a service needs to be female only, but the variation in presentations of transwomen from someone who is ‘visually indistinguishable’ to someone who has only just announced an intention to transition, and the variation in needs of the service users from a rape crisis centre to a changing room with partitioned cubicles, mean that there cannot be the certainty advanced by the Claimant.

In respect of the third argument, the judge agreed that physical appearance is relevant. This is unfortunate.

The judgment hasn't even been published yet. It's going to be a minefield. What was said in the summary was no ringing endorsement of the absolute certainty that men decide what women can have or can't have.

If you are lining up to say women get what men decide they should have then you might have to think again once we see the judgment.

A recent Judicial Review against the Crown Prosecution Service and its membership to our Diversity Champions programme was not granted. Justice Cavanagh said he believed those bringing the case had no arguable claim of success.

As above, if a request for JR is not granted this does not create any legal precedent.

‘Far from causing “bias”, our Diversity Champions programme helps organisations like the CPS tackle the prejudice and discrimination LGBT+ staff face in their workplaces.

This case was about guidance for schools, not workplaces. It was brought by a 14 year old female school pupil, not an adult employee.

It looks like Stonewall are standing by their collaboration with CPS on their LGBT+ bullying and hate crime guidance for schools. This case started with a letter-before-action which says:

The Guidance has been produced by the CPS and its Partners and contributors. These are The Proud Trust, Stonewall, Gendered Intelligence, Diversity Role Models, and Schools Out UK. These groups have a specific ideological and/or political agenda. Gendered Intelligence and Stonewall lobby to end sex-based exemptions* in the Equality Act.

I don't understand why Stonewall would be bigging up their input into this guidance when CPS withdrew it within days of receiving the pre-action letter, and at the same hearing Stonewall is crowing about here, CPS announced that the document was permanently withdrawn and would not be reissued.

safeschoolsallianceuk.net/2020/04/30/cps-guidance-withdrawn-for-review/

safeschoolsallianceuk.net/2021/01/12/cps-hate-crime-schools-guidance-permanently-withdrawn-judicial-review/

*Stonewall's explicit lobbying to remove rights from women and girls was also extensively highlighted in the Reindorf / Essex University report.

I sincerely hope they regret putting in writing, their intent to continue to convince businesses to ignore the law and instead follow stonewall law. As thats how this reads to me.

The programme and our staff have absolutely no sway over any organisation’s wider decision-making.

Here are some images from Stonewall's complaint against Allison Bailey, addressed to her Chambers. Make up your own mind.

allisonbailey.co.uk/updates/update-5-breaking-exclusive/

A recent report on free speech at University of Essex referenced Stonewall’s membership of the Diversity Champions programme. These claims had no basis

Stonewall is not a member of the Diversity Champions Programme?

Obviously this is not what they meant to say, they are now panicking so much they can't even write coherently. Let's be charitable and assume that they meant to write something like:

'A recent report on free speech at University of Essex referenced the University's membership of the Diversity Champions programme. The claims in the report had no basis'

Stonewall staff had no involvement at all in this decision.

But the report did not claim that Stonewall staff had involvement in this decision (to deny Jo Phoenix and Rosa Freedman a platform).

The claim was that the university's relationship with Stonewall appears to have given University members the impression that gender critical academics can legitimately be excluded from the institution

www.essex.ac.uk/blog/posts/2021/05/17/review-of-two-events-with-external-speakers

From recent letter to EHRC signed by Stonewall:

Against that backdrop of a lack of support for LGBTQ+ people, we are frustrated that you then chose to intervene in a case to say that so-called ‘gender critical’ beliefs should be a protected philosophical belief.

EHRC were just confirming their view of the law, which is their job.

The letter suggests that Stonewall do not respect EHRC’s role which is to safeguard and protect all human rights in line with current law, and also that Stonewall would give unreliable advice in any situation where there is a conflict, particularly where this is euphemistically described as ‘going above and beyond’ the law.

I will never get over that letter to Garden Court.

Or Stonewalls inability to remember that there are nine protected characteristics that the EHRC seeks to defend and uphold.

One of which (sex) Stonewall have explicitly said they wish to remove.

Of course the EHRC have to weigh in, and I am never endingly gobsmacked that Stonewall thought they could strong-arm them into not doing so.

What I love about this Stonewall statement is that just last year, they could have ignored everything, there was very little sunlight. It is clear they are now coming under significant pressure. This is highlighting how little legal input there has been to their strategy and because of that they are continuing to disregard the law.

Old habits die hard

This is highlighting how little legal input there has been to their strategy and because of that they are continuing to disregard the law.

Yep. And not just lack of legal input. Lack of self-investigation, critical thinking and general professionalism!

Stonewall seems to have transformed into a legion of Judges Dredd who believe, I am the Stonewall law - except the Stonewall is silent.

Sophoclesthefox

I will never get over that letter to Garden Court.

Me neither. What were they thinking!

It's so sinister, and I'm sure it's defamatory regarding WPUK.

But more than anything, it's just so transparent.

As people have said, it appears to be born of total arrogance.

I will never get over that letter to Garden Court.

Nor me. Pretty much every sentence is just jawdropping.

One of the most serious allegations against Stonewall is that they misrepresent the law, which they strongly deny. But in this email, Stonewall accuse Allison Bailey of:

'Writing tweets calling for trans people to lose their current legal rights'

That's a very strong claim. Stonewall give these two examples of the kind of tweets they mean:

'Women & girls have suffered, and continue to suffer, at the hands of predatory & abusive men. It is offensive & unacceptable to suggest, much less litigate, for a system whereby any man can declare himself lawfully to be a woman.'

'tell the MoJ to stop sending men to women's prisons. Tell the NHS that no, men cannot self-ID onto women's wards.'

So Stonewall must believe that the following current legal rights exist:

• any man can declare himself lawfully to be a woman
• men have a right to be in women's prisons
• men can self-ID onto women's wards

Stonewall go on to say, '... for Garden Court Chambers to continue associating with a barrister who is actively campaigning for a reduction in trans rights and equality ... puts us in a difficult position with yourselves [sic] ... I trust that you will do what is right and stand in solidarity with trans people.'

How can anybody read that email and think Stonewall are not misrepresenting the law (with menaces)?

If stonewall want to imagine a world in which Ann's case creates legal precedent then they should pay attention to the many things the judge said that directly contradict the misinformation they are pushing out to 850+ organisations in the UK. From the link above:

On the first argument, he agreed that the COP said “should,” not “must.” ... After “should” comes the disclaimer “However,” followed by an explanation of where exclusion will be reasonable

He also agreed that if there are public bodies which have understood a ‘should’ as a ‘must,’ these are capable of challenge by individual service users to individual service providers, whether inclusive or exclusive.

It may well be that a service needs to be female only, but the variation in presentations of transwomen from someone who is ‘visually indistinguishable’ to someone who has only just announced an intention to transition, and the variation in needs of the service users from a rape crisis centre to a changing room with partitioned cubicles, mean that there cannot be the certainty advanced by the Claimant.

In respect of the third argument, the judge agreed that physical appearance is relevant. This is unfortunate.

Great point!

@Procrastinator85

Link to the Taylor v Jaguar judgment

assets.publishing.service.gov.uk/media/5fc8d559d3bf7f7f5c134ad3/Ms_R_Taylor_v_Jaguar_Land_Rover_Limited_-1304471.2018-_Reasons.pdf

Paragraph 173 onwards is useful. In short, it appears that this particular ET (they do not set binding authority) found that "gender reassignment" covers all those who have "moved away from their birth gender" in some form or another.

They also concluded that the legislation is ambiguous.

I am not an employment lawyer, but this decision carries no weight in law as it is not binding authority. For Stonewall to present it as such is misleading.

See, I never had any doubt that non binary would be included in any of the gender reassignment stuff. That seems logical, once you have accepted the initial premise that gender reassignment etc is a thing and is protected in law. Ambiguous as it is!

Stonewall is just doing it's obfuscation thing again! Dangerous ground for any organisation that goes along with it!