Gender recognition postponed

Photo by Sharon McCutcheon on Unsplash

The Coronavirus continues to create chaos – legally speaking.

The latest casualty is the Scottish Government’s promised review of the Gender Recognition Act 2004. This exercise will now be postponed for the foreseeable future.

On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004.

This exercise was always dogged by a lack of clarity on the Government’s part. Shirley-Anne Sommerville MSP, the Government Minister who had responsibility for this issue had publicly admitted that there was still a need to build a “maximum consensus” before things become clearer. Code for sorting out divisions over the issue within the ranks of the Scottish National Party.

A link to information about the proposed Bill can be found below:

https://www.gov.scot/publications/review-of-gender-recognition-act-2004/

The Gender Recognition Act 2004

In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.

Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.

Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment. The Equality Act 2010, of course, also bolsters legal protection for transgender people.

The Scottish Government’s proposed Gender Recognition Bill

The proposed Bill was controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:

https://www.scottishlegal.com/article/joanna-cherry-qc-signs-letter-opposing-rush-to-reform-gender-law

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-48037152

Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.

Under the proposed legislation, an individual wishing to undergo gender reassignment would have to have met the following criteria:

  • A statutory declaration to the effect that they have decided to change gender or sex;
  • The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
  • The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).

Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.

A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:

https://www.holyrood.com/articles/news/scottish-trans-policy-detrimental-women-and-girls

For the time being all of the above is going to be purely academic.

Related Blog articles:

https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/

https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/

https://seancrossansscotslaw.com/2019/06/25/gender-neutral/

https://seancrossansscotslaw.com/2020/02/18/safe-spaces/

https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/

https://seancrossansscotslaw.com/2020/02/16/say-what-you-want-continued/

Copyright Seán J Crossan, 1 April 2020

Right to refuse?

Thanks to @beamomatic9000 for making this photo available freely on @unsplash 🎁

The COVID-19 crisis continues to throw up some interesting legal questions e.g. employment rights, EU freedom of movement rights, frustration of contract etc.

One area which seems somewhat overlooked is in relation to the actions of many retailers – principally supermarkets and grocery stores – which have been restricting sales of particular items. The items in question include soap, hand gel and sanitiser, bleach, anti-septic wipes, paper towels and even toilet rolls.

The COVID-19 situation has led to panic buying of these essential hygiene items and supermarkets have imposed clear limits on their sale.

Can supermarkets and other retailers impose these sorts of restrictions?

This, of course, takes us back to the basic rules governing the formation of a contract. Retailers are especially guilty when applying the term ‘offer’ to the goods which they stock. It is no such thing: goods on the shelves; on display; or in shop windows are invitations to treat. It is the the customer who is being invited to make the offer (see Fisher v Bell [1961] 3 ALL ER 731 where the English Court of Appeal ruled that a knife displayed in a shop window was not being offered for sale, it was merely an invitation to treat. Lord Parker, the Chief Justice being particularly emphatic on this point).

In the seminal case of Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB 401, the judges of the English Court of Appeal helpfully distinguished between an offer and an invitation to treat. The case arose as a result of a provision in the Pharmacy and Poisons Act 1933 which stipulated that the sale of certain medicines must take place in the presence of a registered pharmacist.

Boots Chemists operated a self service system whereby it’s customers were able to place the medicines which they wished to purchase in their shopping baskets. The key question was whether Boots was breaking the law by allowing customers to do this. In other words, was the sale completed when the customer placed the medicines in their baskets? Now, if goods on shelves were to be regarded as ‘offers’, Boots would indeed be breaking the law because customers would be deemed to be ‘accepting’ these ‘offers’ by placing the goods in question in their baskets.

If, on the other hand, the sale was concluded elsewhere i.e. at the cash register where there was always a registered pharmacist on duty, Boots would be fully complying with the Act.

The Court of Appeal concluded that it was the customer who made the offer by presenting the goods at the cash register. The sales assistant (properly supervised by the pharmacist) could conclude matters i.e. accept the offer by ringing the sale up on the cash register. Furthermore, it was always open to the assistant to refuse the customer’s offer. Goods on shelves were, therefore, merely an invitation to treat.

In more normal times, a customer’s offer would and should be refused by retailers because they are an underage person who is attempting to purchase e.g. alcohol, cigarettes or video games or DVDs which are age specific.

So, in this way, retailers are generally within their rights to impose strict limits on the numbers of certain items that customers wish to purchase. The customer can offer to buy 20 bottles of hand gel or sanitiser, but the store will have the right to refuse.

Presently, retailers are putting these sorts of restrictions into place in order to protect and promote public health by giving as many customers, as possible, reasonable access to basic hygiene products. If we co-opt the language of the Equality Act 2010, retailers are putting restrictions in place because these are a proportionate means of achieving a legitimate aim. So, hopefully, such restrictions – if fairly implemented and monitored – will not be subject to a legal challenge on grounds of discrimination.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/12/06/tis-the-season-of-special-offers/

https://seancrossansscotslaw.com/2019/03/27/special-offers/

https://seancrossansscotslaw.com/2019/03/14/too-good-to-be-true/

Copyright Seán J Crossan, 26 March 2020

International Women’s Day (What’s so great about it?)

Photo by Jen Theodore on Unsplash

Today is International Women’s Day, but is there much to celebrate in terms of concrete progress since I spoke about this topic last year?

The answer to the question is that progress women’s equality remains very much a mixed picture. If you look at figures produced for the European Gender Equality Institute, the UK is certainly in the top 5 of selected European countries. This is in stark contrast to Central and Eastern European nations (e.g. Bulgaria, Poland and Romania). Surprisingly, Germany does less well amongst its Western European neighbours, whereas Greece and Portugal are way down the index.

A link to a gender equality index for European countries can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.070320/data/9384076/index.html

These figures may not be entirely surprising to regular readers of this Blog: in the first few months of 2020, I have highlighted the continuing gender pay gap (which continues to be stubbornly difficult to close) and pregnancy discrimination.

Speaking of pregnancy discrimination, two recent employment cases have highlighted how much of a problem this continues to be.

In 2019, an Industrial Tribunal (yes, they still exist in Northern Ireland) ruled that McGranes Nurseries Ltd had discriminated against one of its pregnant employees, Laura Gruzdaite, who was unfairly dismissed when she took time off work to attend a scan as part of her ante natal care. Ms Gruzdaite had informed her employer that she was pregnant.

In Northern Ireland, slightly different equality legislation is relevant to cases like that of Ms Gruzdaite, but the general objective is very similar. Had the case occurred in Scotland or England, we would have been discussing the Employment Rights Act 1996 which, of course, gives pregnant women a legal entitlement to take time off work to attend these types of appointment. In Northern Ireland, the relevant legislation is the Employment Rights (Northern Ireland) Order 1996.

As for the actual pregnancy discrimination, we would have been referring to the Equality Act 2010, but in Northern Ireland, the Sex Discrimination (Northern Ireland) Order 1976 contains the relevant law.

Ms Gruzdaite was awarded £28,000 in compensation from her former employers – significantly, £20,000 of this award represented an injury to feelings element.

Interestingly, the employer also got Ms Gruzdaite to sign a blank contract of employment which did not specify whether she was a temporary or permanent employee. All very suspect and an obvious breach of our Employment Rights Act too (and I’m certain of the Northern Ireland Order of 1996), but that’s a different story for now.

A link to the Industrial Tribunal’s decision can be found below:

https://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/OITFET%20online%20decisions%20as%20pdfs/Gruzdaite-v-McGranes-Nurseries-Ltd-July19.pdf

Pregnant woman ‘unfairly dismissed’ rules industrial tribunal

In the second case, from England, Maya Georgiev was employed by Hanover Insolvency Ltd. She had not informed her employer that she was pregnant; she had been absent from work due to pregnancy related illnesses; and she was subsequently called to a disciplinary meeting. At this meeting, Ms Georgiev explained the reasons for her absence from work, but to no avail as her manager dismissed her. This was an unfair dismissal in terms of the Equality Act 2010 and the Employment Rights Act 1996.

Ironically, Ms Georgiev would have been better protected had she disclosed her pregnancy to her employer from the outset, but when the employer became aware of her situation it should have recognised that it had a duty not to discriminate against her by reason of her pregnancy. The Employment Tribunal will hold a Hearing on remedy later this year.

A link to the decision of the Employment Tribunal in this case can be found below:

https://assets.publishing.service.gov.uk/media/5e565151d3bf7f3947cf26a5/Miss_M_Georgiev_v_Hanover_Insolvency_Limited_-2400113_2019-_Judgment.pdf

A link to a story about Ms Georgiev’s experiences can be found below on the People Management website:

https://www.peoplemanagement.co.uk/news/articles/worker-discriminated-against-after-boss-unfairly-dismissed-her-for-pregnancy-related-absences

Even in areas where progress has undoubtedly been made family friendly policies such as maternity leave – the English Court of Appeal recently ruled in Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police (2019) EWCA Civ 900 that it is not discriminatory to offer more generous family friendly arrangements to female employees. This may seem quite progressive on the face of things, but it continues to place the emphasis on women being the primary carers of children. It doesn’t exactly encourage a cultural shift towards more men taking time off work to care for their children.

The worst case scenario

… And finally, a rather stark reminder that, although progress for women’s rights has undoubtedly occurred, the overall picture remains very uneven. In certain parts of the world, being female means that you are more likely to be murdered. A phenomenon so prevalent in the Central American countries of Honduras and El Salvador that they refer to it as femicide.

You can find a link to this story on the Sky News website below:

https://news.sky.com/story/the-most-dangerous-place-in-the-world-to-be-a-woman-11950981

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/

https://seancrossansscotslaw.com/2020/01/11/pregnancy-discrimination-or-new-year-same-old-story-part-2/

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/03/11/born-leader/

Copyright Seán J Crossan, 8 March 2020

Muslim, male, and single: don’t fly with us!

Photo by Kevin Hackert on Unsplash

Michael O’Leary, the motor mouth CEO of Ryanair, could never be accused of being a shrinking violet or one to shy away from a fight. As they say in Ireland: that one would cause trouble in an empty house.

The latest controversy to engulf Mr O’Leary concerns accusations of racism, religious discrimination and, indeed, sexism. Quite a charge sheet. He has suggested that single, males of the “Muslim persuasion” should be turned away from plane flights because “this is where the threat is.”

Ryanair is an Irish airline, but it services a large number of European destinations and many of its customer base will be single Muslim males who have quite lawful travelling plans.

Ryanair is a popular (I probably meant busy) airline that flies to and from destinations in the UK and many of British citizens are, of course, Muslim.

Mr O’Leary’s comments could potentially fall foul of the provisions of the Equality Act 2010 in relation to direct discrimination (Section 13) on the grounds of the following protected characteristics:

  • Religion (Section 10)
  • Sex (Section 11)

Now the Muslim faith is not a racial characteristic, so where could the accusations of race possibly arise? Well, if you are applying a criterion to your customer base, it could have a disproportionately adverse effect on certain groups within the population. Muslims are much more likely to be found amongst non-White British and Irish UK citizens. Indirect discrimination any one? (see Section 19 of the Equality Act 2010)

There’s also the small matter of European Union law (yes, in the UK we continue to follow these rules throughout the Brexit transition period) and Mr O’Leary’s comments could represent a breach of the Treaty on the Functioning of the European Union (primary legislation) and Equal Treatment Directives (secondary legislation).

There may be one get out for Mr O’Leary: if he can show that his comments were an objective (don’t laugh) and proportionate means of achieving a legitimate end. National security and health and safety concerns do, potentially, fall into this category, but Mr O’Leary’s approach to dealing with terrorism might be regarded as using a sledgehammer to crack a nut i.e. totally over the top and disproportionate. Section 192 of the Equality Act states:

A person does not contravene this Act only by doing, for the purpose of safeguarding national security, anything it is proportionate to do for that purpose.

Mr O’Leary may not be too concerned about the latest furore surrounding his comments – after all, as a fellow Irishman (Oscar Wilde) once remarked: “There is only one thing in life worse than being talked about, and that is not being talked about.

In fairness to Mr O’Leary he has since apologised for his remarks, but the Muslim Council of Britain has condemned his comments (made in an interview with The Times).

Many Muslims have logged on Twitter their negative experiences of flying (see below):

#flyingwhilstMuslim

A link to an article on the BBC News App about Mr O’Leary’s comments can be found below:

Michael O’Leary: Ryanair boss criticised for Muslim profiling comments

The Ryanair boss says Muslim men should be profiled at airports because “that is where the threat is”.

Copyright Seán J Crossan, 22 February 2020

Hate crime?

Photo by Sharon McCutcheon on Unsplash

A famous saying about freedom of speech is often (rightly or wrongly) attributed to the eighteenth century French philosopher, Voltaire (François-Marie Aroue):

‘I disapprove of what you say, but will defend to the death your right to say it.’

Voltaire’s remark is, however, not without its problems. Freedom of speech is a contested concept. There’s no such thing as the right (in law) to say anything you like. The European Convention on Human Rights does, of course, recognise the right to freedom of expression in terms of Article 10, but European countries that are signatories to the Convention can restrict this right – quite legitimately.

Recently, in 2019, the European Court of Human Rights made it very clear that Holocaust denial is not a legitimate expression of free speech (see Pastörs v Germany ECHR 331 (2019)).

That said, the ability by signatory countries to restrict Article 10 rights are subject to very rigorous safeguards:

  • it must be prescribed by or in accordance with the law;
  • it must be necessary in a democratic society;
  • it is in pursuit of one or more legitimate aims specified in the relevant Article [of the Convention];
  • it must be proportionate.

Even in the United States of America, where lots of unpalatable things are tolerated under the free speech provisions of the First Amendment to the Constitution, there are limits (see the Miller Test formulated by the US Supreme Court in Miller v California 413 US 15 (1973)).

Our very own Miller case

In the various legal jurisdictions of the United Kingdom, there is also such a thing as hate speech (a criminal offence). No one is pretending that freedom of speech is an area of the law which is clear cut and unambiguous. It can be minefield and deciding what is legitimate (but perhaps disagreeable or offensive) expressions of free speech from hate speech can be extremely problematic.

We have just been reminded of this fact by a case which has just been decided by the English High Court.

Harry Miller, who is a former Police officer himself, was subject to Police scrutiny because he had posted a number of Tweets about proposed reforms to the Gender Recognition Act 2004. Let us just say that Mr Miller is clearly not in favour of changes to the legislation which would liberalise this area of the law e.g. by permitting individuals to decide their chosen gender by way of self-identification.

Someone complained about Mr Miller’s Tweets and the Police visited him at his work-place to discuss the matter. He was issued with a warning that his remarks could constitute a hate speech incident, but significantly the officers stated that no crime had been committed. This warning was issued to Miller in terms of the Hate Crime Operational Guidance 2014 (HCOG) issued by the College of Policing.

Mr Miller was not prepared to let this matter rest as he was strongly of the opinion that his right to freedom of expression had been violated by the actions of the Police.

He appealed to Humberside Police’s Appeals Body, but the appeal was rejected in June 2019. Mr Miller then commenced an action for judicial review of the actions of the Police.

Mr Justice Knowles sitting in the English High Court agreed with Mr Miller (see Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin)). It is perhaps highly significant that Knowles J prefaced his ruling with a reference to the unpublished introduction to George Orwell’s celebrated novel, Animal Farm:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

His Honour went on to highlight the remarks of Lord Justice Sedley in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375:

Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …

It was also noted that Lord Bingham in R v Shayler [2003] 1 AC 247 had stated:

The reasons why the right to free expression is regarded as fundamental are familiar, but merit brief restatement in the present context. Modern democratic government means government of the people by the people for the people. But there can be no government by the people if they are ignorant of the issues to be resolved, the arguments for and against different solutions and the facts underlying those arguments. The business of government is not an activity about which only those professionally engaged are entitled to receive information and express opinions. It is, or should be, a participatory process. But there can be no assurance that government is carried out for the people unless the facts are made known, the issues publicly ventilated …”.

A subtle judgement?

It is important to understand that the judgement issued by Knowles J is one of considerable subtlety and it is not giving the green light to people to say what they want – even if this would cause offence.

There are still limits to freedom of speech and expression. Critically, Knowles J rejected Mr Miller’s very broad challenge that his human rights in terms of Article 10 of the European Convention had been violated merely because the Police had recorded and classified the matter as a non hate crime incident.

Such measures are necessary in a democratic society (and supported by a wealth of evidence) because, amongst other things, they can:

  • provide evidence of a person’s motivation for subsequent hate crimes;
  • provide context to what divides the cohesion of communities when hate incidents take place and how the Police can deal with these matters more effectively; and
  • prevent escalation of crime particularly with school children who might be aware of the seriousness and consequences of committing hate incidents, recording of such behaviour can be a very effective educational tool.

Knowles J found in favour of Mr Miller on the basis of his narrower challenge to the Police actions. This part of Miller’s legal action could be summed up in the following terms:

He [Miller] contends that the combination of the recording of his tweets as a non-crime hate incident under HCOG; PC Gul going to his workplace to speak to him about them; their subsequent conversation in which, at a minimum, PC Gul warned him of the risk of a criminal prosecution if he continued to tweet; and the Claimant’s subsequent dealings with the police in which he was again warned about criminal prosecution, interfered with his rights under Article 10(1) in a manner which was unlawful.

In upholding part of Miller’s challenge on the narrower grounds, Knowles J explained his reasoning:

There was not a shred of evidence that the Claimant was at risk of committing a criminal offence. The effect of the police turning up at his place of work because of his political opinions must not be underestimated. To do so would be to undervalue a cardinal democratic freedom. In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.

His Honour concluded by stating that:

“… the police’s treatment of the Claimant thereafter disproportionately interfered with his right of freedom of expression, which is an essential component of democracy for all of the reasons I explained at the beginning of this judgment.”

A link to the judgement in Harry Miller v (1) The College of Policing (2) The Chief Constable of Humberside [2020] EWHC 225 (Admin) can be found below:

https://www.judiciary.uk/wp-content/uploads/2020/02/miller-v-college-of-police-judgment.pdf

A link to an article in The Guardian can be found below:

https://www.theguardian.com/society/2020/feb/14/transgender-tweet-police-acted-unlawfully

Conclusion

Proposals to liberalise the Gender Recognition Act 2004 are, undoubtedly, causing heated debate and much controversy across the United Kingdom. There are strong opinions on both sides of this debate and Knowles J acknowledged as much in the Miller case:

The Claimant’s Tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons. This conclusion is reinforced by Ms Ginsberg’s evidence [CEO of Index on Censorship] which shows that many other people hold concerns similar to those held by the Claimant.”

This case is, however, not a green light for people to say what they like – no matter how offensive their remarks may be. Freedom of speech and expression carry responsibilities and people should be mindful of this. That said, cases which have at their centre arguments over freedom of expression will turn on their facts. It is useful to realise that legitimate expressions of free speech will be protected and upheld. It’s a question of balance, but this is easier said than done – much more difficult to achieve in practice.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/

https://seancrossansscotslaw.com/2019/10/08/holocaust-denial/

https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/

https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/

https://seancrossansscotslaw.com/2019/06/25/gender-neutral/

Copyright Seán J Crossan, 16 February 2020