The Nolan team based in Belfast are a group of BBC journalists well used to asking awkward questions. Nolan looks at the influence Stonewall has in public institutions across the UK. This 18 month investigation has already had significant impact behind the scenes in major public institutions. The podcast is the story of how it all unfolded.
A team of volunteers at Fair Play For Women have transcribed the main content from each of the ten episodes spanning over 6 hours of audio content. You can listen to the full audio here or read the condensed transcript below.
Episode 7 – Lobbying and the Law
Was Stonewall’s advice to public bodies entirely accurate?
Stonewall’s advice to employers is to go above and beyond the law. Going above and beyond the law, the most inclusive employers consider “nonbinary” to be a protected characteristic.
“There’s no other protected groups in Britain that has this sort of language. We’ve got policies in UK universities that say any materials within relevant courses and modules will positively represent trans people and trans lives. There’s no clause like that for gay people or black people or disabled people. So this is just a really unprecedented situation and I’m, like you, I’m at a bit of a loss to know how this has happened” Kathleen Stock
“I think that this Stonewall Diversity Scheme is, basically, how they would like the law to be, and I think a lot of companies and public bodies just sort of sign up to the scheme, thinking that by doing so, they’re compliant with current equality legislation. But it isn’t quite that straightforward, and I think a lot of people have been misadvised because Stonewall are basically a lobbying group and this is what they would like to happen. So they’re giving advice based on their kind of ideals, basically, and not as the law stands at the moment”. Rosie Duffield MP
Critics of Stonewall’s policy positions around gender identity and self-identification argue that what the Scottish and Welsh governments have done goes well beyond the law. When you’ve got the civil Service embracing Stonewall’s policy to go above and beyond the law, how can that be healthy?
“This is not just about trans rights, this is about women’s rights, it’s about children’s rights, this is about public discussion and democracy, and it’s been presented as a very narrow issue of no interest to anybody else. The only possible reason you could have for being irritated about it is that you must be a bigot; that’s just completely false” Kathleen Stock
Have Stonewall not been interpreting the law in the way that they want the law to be rather than the way the law exists? How is that helping any of the people that they represent? Is it not better to argue for a change to the Equality Act?
But without giving clearer guidance on the law, aren’t Stonewall leading employers into the position where these employers are accepting their guidance? They are changing the language. And how are those employers not leaving themselves open to a court case from the other side from people who say you are infringing on my sex-based rights?
[00:00:00.610] – Stephen Nolan
Episode Seven Lobbying and the Law. Should a lobby group have been able to embed itself in the heart of government, in workplaces across the country, in hospitals, police services and in broadcasters like the BBC?
[00:00:26.090] – Stephen Nolan
And are Stonewall correctly interpreting the law? The Equality Act protects people who are reassigning their gender from male to female or vice versa. But Parliament has never created new genders, never. Equality law does not give an individual the legal right to be formally recognised as nonbinary or genderqueer, for example. And yet, Stonewall has managed to convince major organisations throughout the UK to believe otherwise.
[00:01:18.090] – Stephen Nolan
The existence of multiple genders is disputed and is a matter of opinion. And yet some people would argue the BBC has seemingly thrown its impartiality out the window. Is it pushing Stonewall’s political agenda onto children? Has Stonewall’s policy on multiple genders been promoted by the BBC’s children’s programming?
[00:02:24.670] – Stephen Nolan
We will look at how controversial this territory is and ask why your public institutions seem to have blindly followed the ideas that Stonewall promote.
[00:03:36.210] – David Thompson
The Equality Act was a big part of Stonewall’s lobbying, and it was how they interpreted a particular part of the Equality Act, which guarantees rights based on gender reassignment. And when Stonewall are talking to all these organisations, they’re saying, they’re changing the language very subtly to gender identity, and then that obviously opens up a whole other set of rights and responsibilities for those employers if they interpret it that way. So we’re trying to find out, is that legal? And is that right? And why did those organisations agree to it, basically?
[00:04:35.710] – Stephen Nolan
Some trans people are protected in law, but there is a formal process and it protects people transitioning from male to female or vice versa. In UK law, sex is binary, there is male and there is female and people who are transitioning. But what it means to be trans for many people now is not that simple. Some people who come under what Stonewall call the ‘trans umbrella’ have no gender, some have varying identities: non-binary, genderfluid, genderqueer, trans queer, two-spirit.
[00:05:18.470] – Stephen Nolan
What you can’t do under the current law is self-identify your gender [legal sex status], but that’s what Stonewall wants. So a man cannot just say I’m a woman and have all the rights and protections of being [legally] female. However, this investigation is evidence of public bodies taking their lead from Stonewall rather than the law. Many public organisations allow people to define themselves as male, female, transqueer, gender fluid, gender queer, two spirit, nonbinary.
[00:06:10.310] – Stephen Nolan
And if you can change whenever and however you like, that means biological men have access to female showers and toilets.
[00:06:19.010] – David Thompson
How are those employers not leaving themselves open to a court case from the other side from people who say “you are infringing on my sex based rights”?
[00:06:27.470] – Stephen Nolan
Self ID means biological men could play for female sports teams.
[00:06:51.390] – Stephen Nolan
The Equality Act became law in 2010 to legally protect people from discrimination in the workplace and in wider society. The Act outlines a series of protected characteristics to prevent people from being unfairly treated.
[00:07:05.850] – David T C Davies MP
The bill introduces the concept of protected characteristics of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion and belief, sex and sexual orientation.
[00:07:20.070] – Stephen Nolan
At the heart of the current row over sex and gender identity is the protected characteristic under the law of gender reassignment. Specifically, how Stonewall are interpreting this aspect of the law and how they are advising your institutions, your workplaces. What effect does that have on your rights? Your rights enshrined in law like single sex spaces. James Caspian is a psychotherapist and expert in transgender issues, and he’s worked within the field for over a decade.
[00:07:59.470] – Stephen Nolan
Why do you think so many public bodies who are open, who are transparent accept Stonewall as, quote, the experts or their advisers?
[00:08:11.710] – James Caspian
One thing that happened was when the Equality Act came in and organisations looked around for someone to advise them or to provide training, there was hardly anybody that could do it, and the reason for that was that it’s such a small field that there are very few people that are associated in it. So virtually anybody, especially somebody with a brand like Stonewall, who came along and said, we’re now the experts on this, we’ll tell you, of course, then the organisations would breathe a sigh of relief and say thank you very much, come in and do that.
[00:08:45.670] – David Thompson
So obviously there’s going to be a tension between what the law actually says and what groups that these organisations have brought in, like Stonewall, what they lobby for, what they want. So the Scottish government on someone’s advice removed the word ‘mother’. The Welsh government created another protected characteristic, ‘gender identity’, and it’s not in the Equality Act. That’s not a protected characteristic. It’s ‘gender reassignment’.
[00:09:10.210] – Stephen Nolan
James [Caspian] is currently taking a case to the European Court of Human Rights, to argue his right to research trans people who wish to detransition as part of his MA studies. That’s people who want to reverse their sex change and return to the sex they were born.
[00:09:25.870] – David Thompson
How do you feel, James, about from your professional perspective about organisations, public bodies, governments, organisations like the BBC who treats Stonewall as the experts in this area.
[00:09:36.970] – James Caspian
I think it’s very unfortunate because for one thing, nobody is actually an expert in this area. There’s no solid body of knowledge or research, as there are in other topics. For instance, if you wanted to say, well, who’s an expert on heart surgery, you probably know who to turn to and there’d be a huge body of knowledge and experience and research on that particular subject. There isn’t on this. There’s really only a series of opinions and beliefs and a kind of practice that’s evolved, which is based in don’t discriminate against people. That’s basically what it’s based in, and I wouldn’t ever advocate to discriminate against anybody. I think everybody should be treated equally, but I think we have to be able to think critically about a subject which is very new and about which there is no solid knowledge or research.
[00:10:31.130] – Stephen Nolan
Kathleen Stock is a professor of philosophy at the University of Sussex.
[00:10:36.170] – David Thompson
But it’s important that we should clarify something here, because when we recorded this interview a number of months ago, Kathleen Stock was just a Professor of Philosophy at the University of Sussex, with gender critical views. But she has joined LGB Alliance, and I think it’s important that we declare that
[00:11:04.170] – David Thompson
So some of the documents we’ve seen in terms of the different parts of the Civil Service across the UK show Stonewall asking the Civil Service to change their language to include gender identity when they talk about the Equality Act and extraordinarily, in some cases, including the Welsh case, the civil servants have changed the language in their description of the Equality Act to include gender identity, which is not legislative.
[00:11:33.690] – David Thompson
In Wales they were describing in a document for civil servants what the legislative provisions were and it included sex, sexual orientation and gender identity. Gender identity is not in the Equality Act, but that’s what Stonewall have lobbied for. So the civil service has gone beyond what the legislators have asked them to do in terms of the law, and they have changed the language because a lobby group has asked them to.
[00:12:01.950] – Kathleen Stock
This is not just a one off, right. So a couple of years ago, I was involved in a grassroots campaign because people started to notice that local authorities were describing the protected characteristic as gender identity rather than reassignment. And quite often they were leaving out sex as well. So they were saying gender and gender identity. So this grassroots campaign wrote to, got people to write to the local authorities and point out the law and in many cases it got changed. A recent case I think I saw was Ofcom have got their list of protected characteristics as including ‘gender identity’. So this is a real problem… and… In my own organisation, I’ve tried to raise the fact that policies seem to go way beyond actual law in a way that hasn’t been tested and hasn’t been subject to the usual kind of legal tests. And I’ve got nowhere because the whole background sentiment is “this is our values”. This can only be good. We’re doing this. We’re good people. We’re doing good things here, and they’re just not thinking it through for its practical consequences.
[00:13:04.110] – Stephen Nolan
We asked Labour MP Rosie Duffield if it was time for public bodies to review the policies they’ve put in place based on Stonewall’s advice.
[00:13:12.690] – Rosie Duffield
Yes, I’m afraid there is. If they are being advised erroneously by an organisation like Stonewall, then these companies need to take a step back and find out more and get more, different, wider consultation so that they understand exactly what’s going on because a lobby company isn’t neutral, this is what they want to happen. This is their sort of ideal, if you like, and that is not exactly what the law says so these companies are sometimes being advised wrongly.
[00:13:41.910] – David Thompson
… and governments. I think whatever private companies do that’s one thing. But when you have bodies like the Treasury, the Ministry of Defence, all these Whitehall departments and they have allowed their policies, they’ve allowed Stonewall to advise them. Surely there’s a real onus on governments to now go through all of their policies and check that they’re legal.
[00:14:07.650] – Stephen Nolan
Kathleen Stock, Stonewall’s advice to employers is to go above and beyond the law. They say the following. They say the law and terminology around gender reassignment is outdated and doesn’t reflect the full variety of experience of the trans community. The descriptive term used within legislation is gender reassignment. This is a very narrow definition of what it means to be trans. Best practice is to treat all individuals, including those who identify as non-binary as you would other people with protected characteristics. Going above and beyond the law, the most inclusive employers consider nonbinary to be a protected characteristic.
[00:15:01.590] – Kathleen Stock
There’s no other protected groups in Britain that has this sort of language. We’ve got policies in UK universities that say any materials within relevant courses and modules will positively represent trans people and trans lives. There’s no clause like that for gay people or black people or disabled people. So this is just a really unprecedented situation and I’m, like you, I’m at a bit of a loss to know how this has happened.
[00:15:46.690] – Rosie Duffield
I think that this Stonewall Diversity Scheme is, basically, it’s how they would like the law to be, and I think a lot of companies and public bodies just sort of sign up to the scheme, thinking that by doing so, they’re compliant with current equality legislation. But it isn’t quite that straightforward, and I think a lot of people have been misadvised because Stonewall are basically a lobbying group and this is what they would like to happen. So they’re giving advice based on their kind of ideals, basically, and not as the law stands at the moment.
[00:16:17.470] – Stephen Nolan
Robin Allen QC specialises in employment and Equality law.
[00:16:22.450] – Robin Allen QC
There’s nothing to stop the Welsh government having a more inclusive set of definitions of characteristics that they consider to be important in the way that they develop policies. What they can’t do is exclude characteristics from the approach that they take. As for gender identity, the Equality Act identifies a series of protected characteristics. They are limited to age, disability, gender, reassignment, marriage and civil partnership, race, religion or belief, sex and sexual orientation. And the two that are important in this debate are the definition of gender reassignment and the definition of sex. And if we just take the definition of sex for a moment, because this is probably where the problem begins. It has been defined by Parliament as follows: Sex in relation to the protected characteristic of sex, a reference to a person who has a particular protected characteristic is a reference to a man or to a woman. And we sometimes call that a binary comparison; you’re either a man or a woman, if you’re relying on the protected characteristic of sex. The complaint that is made is that that insufficiently recognises the range of different identities that people may have, which are not simply male, man and simply female, woman. And people say that they have a series of different identities that either eschew those two binary classifications or have a bit of one and a bit of the other or some combination of them.
[00:18:20.650] – Stephen Nolan
Critics of Stonewall’s policy positions around gender identity and self-identification argue that what the Scottish and Welsh governments have done goes well beyond the law. When you’ve got the civil Service embracing Stonewall’s policy to go above and beyond the law, how can that be healthy?
[00:18:48.430] – Kathleen Stock
Well, it’s not healthy. I mean, the law should be subject to constant scrutiny, obviously, but it should be scrutinised through standard mechanisms. It’s not up to a particular lobbying group to tell all these organisations that that’s what they should do. And these organisations, as you said, they just absolutely docilely repeat parrot like what they’re being told by Stonewall. So I mean, that’s not a healthy situation at all, particularly when these supposedly desirable changes to the law affect so many people. This is not just about trans rights, this is about women’s rights, it’s about children’s rights, this is about public discussion and democracy, and it’s been presented as a very narrow issue of no interest to anybody else. The only possible reason you could have for being irritated about it is that you must be a bigot; that’s just completely false.
[00:19:38.230] – Robin Allen QC
I think that what’s happening is that these two governments have been persuaded by Stonewall to use the phrase gender identity to try and take, as Stonewall would say, a more modern approach that people’s identity in the general field of gender and sex is much more fluid than simply being male or female.
[00:20:04.510] – Stephen Nolan
But, Robin, is it the case that gender identity, that they do not… they might be persuaded by Stonewall, but these governments are not required by law to do it?
[00:20:15.430] – Robin Allen QC
No, they’re not required by law to do it in the Equality Act. They’re not in Northern Ireland, as far as I’m aware, there’s no specific provision that says that that’s the case.
[00:20:29.350] – David Thompson
In the correspondence we’ve seen with Stonewall, Stonewall don’t argue on the basis of any European Act or another act separate from the Equality Act. All they say is that the language is outdated.
[00:20:40.510] – Robin Allen QC
Well, that’s a political argument, isn’t it, to say the language is outdated. Some people would agree with that. Others would say that it lacks adequate legal certainty. In discussing this topic, one of the things you have to do is to recognise that the purpose of the Equality Act is to give people rights. But whenever you give people rights, you also impose obligations on people who are involved in transactions with them, whether at work or in housing or the delivery of social advantages by government. There’s a relationship of rights and obligations. And the issue that arises when you have a context of rights and obligations is that people must be able to understand what those obligations are. We are in a moment of transition of political ideas where some people say that just describing me as a transsexual or a man or a woman doesn’t adequately deal with my identity, and that’s very clear to them, but not necessarily very clear to other people. And so this is a moment of political transformation. The idea of gender fluidity will become clearer to people. I get emails now in which sometimes people say his / him or she / her after their name, and in other cases they say something more fluid than that because they want to be treated and to be identified in a more fluid way.
[00:22:33.330] – Stephen Nolan
Aside from various interpretations of equality law, it seems to be the case that a great many public bodies have not scrutinised their Stonewall adjusted policies thoroughly. I put this question to James Caspian:
[00:22:46.350] – Stephen Nolan
What I don’t understand in the making of this podcast, throughout it, I do not understand how so many blue-chip companies which have integrity and they are trying to do the right thing. They could not have just been blinded by Stonewall. They must respect them. They must be aligned with Stonewall values. They couldn’t be getting into this blind.
[00:23:12.510] – James Caspian
I think it’s because they wanted to do the right thing. They wanted to be seen to do the right thing, to be LGBTQ etc friendly. Of course they did. They didn’t see anything wrong with what they were being told. Oh, there are all these gender identities and so on and so forth. But they didn’t dig deep. And there may have been people within those organisations, and in fact, there are who are worried about that narrative taking precedent, but who also, of course, know that they daren’t say anything now because they’ll be attacked. So it’s not to say there aren’t people within those companies that don’t realise that some of what they’re being taught is questionable. But, initially, what happened was that nobody saw anything wrong with what they were saying. I mean, I remember in the early days I might have come across some of that material and use some of it myself and haven’t seen anything wrong with it. But it’s when you realise what has evolved and it was when I realised about the large numbers of people detransitioning and what they were saying about their gender transitions and detransitions, and what they were saying about the influence of social media, and some of them even said they felt they’d been part of a cult; a cult. And then if you then dig into what’s happening around this area where you have situations where children can change gender at school and their parents aren’t told, the parents are almost regarded as enemies, if they question what’s going on with their kids. There’s an awful lot of things that happened that are really quite horrific around it, around human rights.
[00:24:49.110] – Robin Allen QC
So, for instance, if one takes issues like dress codes, that’s very often a subject of debate or a matter of great importance to somebody who treats themselves or considers themselves to be gender fluid, they don’t necessarily want to be made to conform to historic dress codes as men or women. And if you have a situation in which that issue emerges, it could be important. But there’s another side to it. Take prisons. for instance. We divide the prison estate into prisons for men and prisons for women, and people say, and it may well be true, that there are advantages, for instance, in terms of the regime in being in a quotes woman’s prison. So you can see situations there in which the government may say, well, look, the reason for having advantages in women’s prisons may be related to issues of maternity; there may be other issues that are specific to that. And the government may say in that kind of context, for instance, that it’s very important to divide the world into men and women or transsexuals males to females, females to males, so that we know which is the right place to put somebody. So that could be a situation in which a person who says, well, I’m neither male nor female. But the government comes along and says, well, that’s okay, that’s part of your personal life, but in order to deal with you as a prisoner, we’ve got to decide which of the two you are because we’ve only got a male estate and a female estate, you’ve got to be appropriately housed, so that could be, I’m not saying it would necessarily succeed, but it’s quite likely to succeed. An argument by the government saying you’ve got to be one or the other in that kind of context.
[00:26:59.230] – Stephen Nolan
Benjamin Cohen is a journalist and the CEO of Pink News. I asked Benjamin if it’s true that, for example, a man can declare that they are a woman and enter female spaces like a changing room.
[00:27:11.890] – Benjamin Cohen
Obviously, there’s the case, the Taylor versus Jaguar Land Rover case. There is case law relating to nonbinary people.
[00:27:23.110] – David Thompson
Because in UK law, sex is binary.
[00:27:25.690] – Benjamin Cohen
Sure. But also, in UK law the way that the legal framework works is that case law is really important, and there is case law. And it’s a case that hasn’t been appealed. So it is the standing case law, which is the Taylor versus Jaguar Land Rover case, which was last year, which found that nonbinary people have fallen under the protective characteristics of gender reassignment in the Equality Act 2010. So, as that is the case, whether you’re calling it gender identity, gender reassignment, whatever you want to call it, there is actually a case.
[00:28:01.450] – Stephen Nolan
Yeah. And Benjamin, you’re citing that case and that case law. David went to the Equality and Human Rights Commission and they warned against people citing that case law as suggesting that that’s the established position. What did they say? David? Just read it…
[00:28:20.590] – David Thompson
On that point about Taylor versus Jaguar Land Rover verdict. The tribunal said that gender reassignment was intended to cover a spectrum moving away from birth sex and that people who identify as nonbinary and gender fluid at all at different points in that spectrum. But they say this was a first stage ruling by an Employment Tribunal and does not set a precedent for all the tribunals or courts to follow.
[00:28:40.690] – Stephen Nolan
So that’s the point does not set a precedent.
[00:28:44.950] – Benjamin Cohen
You say that, but let’s see another case being brought.
[00:28:49.030] – Stephen Nolan
But that’s the Equality and Human Rights Commission that must bear at least some weight to this.
[00:28:54.370] – Benjamin Cohen
May I ask a question? So I was speaking to a nonbinary person who works for me today and we currently aren’t in an office due to the pandemic and we’ve grown the team significantly so we can’t go back to our old office. But we’re thinking very carefully about our new office, but our policy has been for the last, I don’t know, ten years that any office that we’re using must have gender neutral toilet facilities. Can I ask you which toilet do you think it’s appropriate that a nonbinary person should use a binary toilet?
[00:29:30.130] – David Thompson
That is really not the issue here, because no, but the issue is about the law and what the law. Our point is, if Stonewall want to change the law, why don’t Stonewall just say the law as it is, does not protect non-binary people. We want to change that.
[00:29:46.790] – Benjamin Cohen
My belief in the way that I would interpret, regardless of what is being quoted by the Equality and Human Rights Commission have said, is as an employer, I would look to employment tribunal decisions to make to use that as a guide to what look up. I appreciate you’re not an employer. I am. Employers want to avoid being taken to court and being subject to employment tribunals. They want to do everything they can to make their employees happy and feel valued and welcome.
[00:30:19.250] – David Thompson
And isn’t the risk in that, though, Benjamin? Because this stuff hasn’t been properly tested because there isn’t legislation around it. Actually, some of these employers who are taking that approach of going above and beyond the law could now be opening themselves up to legal action from women who are saying, actually, my sex-based rights under the Equality Act, which is very clear, that there can be single sex spaces provided under the Equality Act is being impaired.
[00:30:43.730] – Benjamin Cohen
But we’re talking about all sorts of different things. So should an employer also provide gender neutral facilities as well?
[00:30:51.350] – Stephen Nolan
They don’t have to lawfully do so, do they?
[00:30:56.030] – Benjamin Cohen
That was one of the debates that was in the Jaguar Land Rover case. But the thing is, I’m asking you whether it’s legal. I’m asking you so, Stephen, as an employer, I don’t know how many people you employ, but if you have a non-binary staff member, should they not be provided with a toilet facility that is appropriate for them to use?
[00:31:14.690] – Stephen Nolan
Well, look, if I was thinking about that and if I engaged Stonewall in this, they would be intimating to me that it is a lawful requirement to do so. And it is not. And you’ve got lots of these companies thinking that Stonewall are the experts and Stonewall are not the experts.
[00:31:35.930] – Benjamin Cohen
I completely get the point. But in the documents that you sent me, I didn’t see anything which said and there may be other ones that you found where Stonewall was saying that anything is the law. I think it talks about best practice policy or like best practice or something, but I’m not sure it says it’s the law.
[00:31:52.970] – David Thompson
Some of the stuff has been in the media recently and Stonewall put out a statement on all of this, and they tried to defend their position in response to the accusation that they were misinterpreting the law. They said they used the term gender identity to help explain who is protected by the law and who is protected with regard to the EHRC Code of Practice. So we asked the EHRC about this and we said, does the EHRC consider the term gender identity to be interchangeable with the term gender reassignment in the context of the Equality Act? Because that’s pretty important, because gender reassignment is a very narrow interpretation of what it is to be trans. Gender identity is much broader and includes different gender identities. It’s not just about sex or transitioning between sexes. The Equality and Human Rights Commission said, no, it doesn’t. And they say while terms such as trans status and gender identity are in common parlance or are related to the protected characteristic of gender assignment, they have no specific legal meaning in this context.
[00:32:46.730] – Benjamin Cohen
But can I ask you a question? If someone was… no one is born, no one is assigned nonbinary at birth, or tends not to be… and there’s obviously been some celebrities that have done that with changing to that with their children.
[00:32:59.270] – David Thompson
But, Benjamin, you couldn’t be assigned non-binary at birth. I mean, how on earth could you assign a baby as non-binary?
[00:33:08.570] – Benjamin Cohen
There’s a requirement when a child is born, that their birth is registered, and it is a binary. So either is male or female. If later that child, that individual as an adult goes on to decide… to discover that they are nonbinary and they identify as nonbinary. They are on a gender … and their gender identity is different to that at birth. So in my view, I’m not a lawyer, but in my view as an employer, I would consider that that is compliant with the Equality Act.
[00:33:45.890] – David Thompson
Stonewall have, have they not? And we’ve asked them more detailed questions, and all of this. Have Stonewall not been interpreting the law in the way that they want the law to be rather than the way the law exists? How is that helping any of the people that they represent? Is it not better to argue for a change to the Equality Act? A change to all these laws…
[00:34:05.390] – Benjamin Cohen
Well, I don’t know. I haven’t seen all of the details. I don’t know exactly what Stonewall says to employers and the language that was sent you sent me, you thankfully shared with me, doesn’t have some of this exact language in so I would say that it is better to think about what is best practice and I wouldn’t be advocating for describing something as the law if there is any debate about whether it is the law. However, as we found with our discussion on this and when I’ve gone and spoken to people, I’ve had different views, points advocated to me about what is or is not required by law. But it is the case that, as an employer, providing adequate facilities for people to relieve themselves while at work is a duty that you have as an employer and not allowing people to do that could cause people to have serious, there could be serious medical repercussions if people find that they are uncomfortable or unable to go to the toilet while at work.
[00:35:03.830] – David Thompson
But without giving clearer guidance on the law, aren’t Stonewall leading employers into the position where these employers are accepting their guidance? They are changing the language. And how are those employers not leaving themselves open to a court case from the other side from people who say you are infringing on my sex-based rights?
[00:35:22.250] – Benjamin Cohen
I don’t know, but there would obviously be very interesting court cases if this happened.
[00:35:31.170] – Stephen Nolan
We did ask Stonewall a series of detailed questions on their interpretation of the Equality Act. They did not answer those specific questions. Instead, they said this, in a short statement provided to ourselves:
[00:35:48.550] – Voiceover
All our guidance on the Equality Act, including using the term ‘gender identity’, is based on the Equality and Human Rights Commission’s Equality Act Code of Practice, which was recently reaffirmed in the High Court.
[00:36:00.370] – Stephen Nolan
We had asked Stonewall detailed questions on that specific point. We asked Stonewall for details about the high court ruling they referred to because they’ve made this claim before: no answer. We asked them to explain how it supports their interpretation of the Equality Act. They didn’t answer the question, except to restate the very point we had questioned. We told Stonewall that the Equality and Human Rights Commission have stated that the terms gender reassignment and gender identity are not interchangeable, when it comes to the Equality Act. We told them that the EHRC don’t agree with their interpretation, and the terms such as trans status and gender identity have no legal meaning in relation to the Equality Act. We asked how therefore, did Stonewall stand over its assertion that the term gender identity explains who is protected by the act? No response, other than this:
[00:37:07.450] – Stonewall Statement
All our guidance on the Equality Act, including using the term ‘gender identity’, is based on the Equality and Human Rights Commission’s Equality Act Code of Practice, which was recently reaffirmed in the High Court.
[00:37:22.310] – David Thompson
Just a final thought. Robin, would you like to be in court trying to defend the position of the Scottish government or the Welsh government when they say gender identity is a protected characteristic?
[00:37:31.250] – Robin Allen QC
I wouldn’t because it’s not a protected characteristic as defined by the Equality Act 2010, not put like that.
[00:37:44.790] – Stephen Nolan
Still to come. They refused to answer first time, but we got it on appeal. What the media regulator Ofcom was saying to Stonewall behind the scenes. That’s episode nine. But next, trans and nonbinary people debate some of the big issues we’ve discussed in this podcast so far.
Want to read more? The transcripts for all 10 episodes are available
Nolan investigates: Stonewall. Episode 6 – Is Government Too Close to Stonewall?
Nolan Investigates: Stonewall. Episode 7 – Lobbying and the Law
Nolan investigates: Stonewall. Episode 9 – How close was Ofcom to Stonewall?
Nolan investigates: Stonewall. Episode 10 – Is the BBC too close to Stonewall?