We believe legal action is an important tool in protecting the sex-based rights of women and girls. Supporters tell us they do, too. The right legal outcome can set a precedent, or stop one (as in the ONS case). It can remind others of their legal obligations, and show that they will be held to account. When we raised funds to fight the ONS, we pledged to use any money left over to explore ways in which we can use the law to re-establish our boundaries, reassert the validity and importance of the single-sex exemptions in the Equality Act, or push back against self-ID where it’s been adopted, such as in sport.
After our win we had almost £58,000 in our legal fighting fund, as detailed below. We’ve been using this to obtain legal advice on a range of issues, so we can identify the best ways to use the courts to help our cause. It’s not enough that something seems unfair or illogical; there also has to be a strong legal basis and an appropriate legal route to challenge or redress.
We have worked with legal experts to explore the impact on females of allowing trans-identifying males into areas of life covered by single-sex exemptions, and how these could lead to a legal challenge. In contact sports, for example, there is the risk of serious injury. Elsewhere, the issue may be indirect discrimination, where males are accessing opportunities denied to females. We have consulted several different legal experts covering the different areas of law, to look at the issues around injury risk, the discrimination angles, expertise in sport, and so on.
We also petitioned the Supreme Court to intervene in the Elan-Cane case, to oppose the adoption of non-binary as a legitimate category on passports. We were the only group representing women’s interests to do so. Although no new intervenors were permitted, our petition made the court aware of the threat to women’s rights of permitting anyone to opt out of having a legal sex of either male or female. This required different legal expertise, in this case on human rights law in the UK and Europe.
We continue to work on issues around data collection and recording, in healthcare and in national statistics such as the Scottish Census, due in March 2022.
Our fighting fund covers exploratory legal advice but going to court again would need new money. We know there is support for the right action. We look forward to taking the fight to the courts again.
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ONS: the final reckoning
The final court order required the Office for National Statistics to pay our costs. In practice this means a court arbitration process to determine “reasonable” costs which rarely returns more than 60-70% of actual expenditure. In our case the process has just been completed. We have recovered £73,009 from the Government Legal Department, which is almost exactly two-thirds of our final legal bill of £109,237. The net cost to Fair Play For Women of taking and winning this action was £36,228. After Crowdfunder.co.uk fees + VAT, we received £93,985.79 from our ONS crowdfunder in March this year. After paying our share of our own legal fees, we had a fighting fund of £57,757 to pursue strategic litigation. So far we’ve spent about half of the fund.
Losing could mean covering the other side’s costs as well as our own. In the ONS case this could have been close to £200k: our own £109k plus c.£70k of the other side. For that reason, we proceed with caution.
Where we see cases of strategic importance with a strong likelihood of success, we will take action.
News on the actions resulting from this investment will follow soon.