I thought this was an interesting analysis from *Natashaetc on Twitter, Michael Foran said he agreed with her analysis and would comment further over the next few weeks.
*This judgment is not only astonishing, but profoundly flawed. Not because a tribunal ruled against a claimant (that happens in cases) but because of the linguistic gymnastics required to pretend the Equality Act doesn’t say what it does.
Sex is a protected characteristic. The Supreme Court confirmed in For Women Scotland that the terms “man” and “woman” in the Equality Act mean biological sex. Yet this tribunal effectively declared biological sex “unknowable” in workplace toilets – therefore legally irrelevant. That isn’t interpretation. That’s a quiet attempt to delete sex from the law entirely – and doing so from a lower court isn’t merely overreach, it’s a grasp halfway round the globe.
The judge did not merely err in law; they dismissed women’s unique privacy needs with the claim that there’s no greater need for bodily privacy than when a man defecates. There is no legal principle behind that assertion, no evidential basis, and no right for a tribunal to plant a speculative flag in contested social theory and call it law. Centuries of safeguarding cannot be waved away for convenience.
The misreading of discrimination law is equally extraordinary. The judge leaned heavily on the fact Ms Kelly was the only woman who complained – as if discrimination were a popularity contest. The Supreme Court in Essop v Home Office (2017) made it absolutely clear – in indirect discrimination claims you do not need every affected person to object, and you do not need to explain why the disadvantage exists. Group disadvantage can exist whether women speak up or remain silent – especially when silence is driven by fear of consequence.
And the argument that “she kept using the toilet so there’s no deterrent effect”? Please. That’s the discrimination equivalent of telling a wheelchair user who struggles up steps that they must be fine without a ramp. Putting up with discrimination doesn’t mean the discrimination ceases to exist.
A tribunal’s job is to apply Parliament’s statute and follow binding appellate authority. It is not to rewrite the definition of “woman” based on the judge’s personal sociology. The moment biological sex is treated as optional, sex based rights collapse – without a single democratic or binding legal mandate to remove them.
This judgment didn’t just get the law wrong. It leapt over the line into policymaking – giving more weight to non-binding guidance than to binding precedent. That’s why the appeal isn’t just justified – it’s essential.
Women’s rights cannot depend on whether a tribunal finds our bodies too “inconvenient” to acknowledge.*