Official sources provide unlawful guidance on the 2010 Equality Act!
Official sources provide unlawful guidance on the 2010 Equality Act!
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Latest: Jan. 15, 2021
Preliminary moves continue
In the last update I reported that we had lodged our documents - a ‘Statement of Facts and Grounds’ from our Barrister, which argued the case for Judicial Review, together with my Witness…Read more
Official sources provide unlawful guidance on the 2010 Equality Act!
Yes, you read that right! It's shocking, isn't it?
For nearly 10 years, unlawful guidance on the 2010 Equality Act (EA2010) has been displayed on the website of the Equality and Human Rights Commission (EHRC) and on the Government Equalities Office (GEO) website for 5 years.
Over these ten years, the guidance has been widely accessed and further disseminated by countless organisations of all types. As a result, the unlawful guidance is reflected in the equality policies of organisations and institutions throughout the UK.
EHRC and GEO guidance is in breach of EA2010, Schedule 3, Sections 26, 27 and 28
This is a legal case to ensure that EA2010 guidance accurately reflects the Act.
The Complainant is Authentic Equity Alliance (AEA), a Community Interest Company established to promote and further the interests of women and girls. The first Defendant is EHRC. The second Defendant is the Minister for Women and Equalities, who has responsibility for GEO.
In the context of a concern that guidance issued by EHRC and GEO should reflect the law, AEA fully supports the protection of transsexual people's rights (to use the EA2010 term) under existing equality legislation. What is at issue is an appropriate balance with the existing rights of women, where and when there is a conflict between those two sets of rights.
So what does the unlawful guidance actually say?
EHRC: ‘Where someone has a gender recognition certificate they should be treated in their acquired gender for all purposes and therefore should not be excluded from single sex services.’
GEO guidance says similar but refers to ‘trans people’.
This article, written by Ann Sinnott and published on 6 March 2020, gives more detail. Since publication, we have learned that the guidance has stood for almost 10 years, not the 6 years stated in the article.
On 17 February 2020, AEA wrote to both EHRC and GEO and provided a list of unlawful guidance identified by AEA. Protracted correspondence with both organisations then followed.
GEO maintains that its guidance is correct.
On 23 March 2020, EHRC - dismissing the unlawful guidance as mere “inconsistencies” - acknowledged that the guidance needed to be amended but was vague as to when that would take place.
Finally, on 14 August 2020, EHRC provided AEA with a list of recently amended guidance. Only six documents have actually been amended, the rest have just been made unavailable – links lead to ‘Access Denied’ or ‘Page Not Found’.
But whether amended or unavailable, the guidance documents can still be accessed via the websites of other organisations, so misinformation continues to be spread.
EHRC have made these changes quietly, without announcement and without any attempt to inform affected organisations. That is unacceptable.
Stirring up discord
The misguidance has inevitably led to dissent and dispute. Transwomen have been told they have the right to access female-only spaces. EA2010 states that female-only spaces and services are lawful and that exclusion of transsexuals (a term used in the Act, along with ‘gender reassignment’) does not equate to ‘gender reassignment discrimination’, provided it is a proportionate means to achieve a legitimate aim.
Transwomen believe they have the right to access female-only spaces and services. Natal women believe they have an exclusive right to women-only spaces and services, and many fully understand the EA2010 single-sex exception. The result is the heated contention seen on a daily basis on social media and elsewhere.
The official but unlawful guidance is the primary source of contention and conflict.
By providing incorrect guidance, both EHRC and GEO have also failed their Public Sector Equality Duty (PSED) requirement to ‘foster good relations between persons who share a relevant protected characteristic and persons who do not share it’. In the present instance, there are two protected characteristics in contention: ‘Sex’ and ‘Gender reassignment’.
Most previous instances of the use of 'gender' instead of 'sex' have been dealt with by guidance being amended or removed. But there are other issues with language, which also form part of this legal action.
(i) Overly-prescriptive language, eg the single-sex exception “must only” be used in “exceptional circumstances” or “as restrictively as possible”.
Those terms go way beyond the neutral language in EA2010: ‘a proportionate means to achieve a legitimate aim’.
(ii) Undefined and unworkable terms. This passage appears in both existing and newly amended guidance:
“Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.”
That statement hails from a legal case that preceded the 2004 Gender Recognition Act. The legal landscape has changed hugely since then.
Apart from that, how is the veracity of ‘visually indistinguishable’ to be judged? Who decides whether or not “a person is visually indistinguishable”? An individual who self-regards as ‘visually indistinguishable’? Another individual who distinguishes that individual differently? Whose view takes precedence? Who decides which view takes precedence? The service provider? An external agency, such as the police? How could/would/should they decide and on what basis?
The notion of ‘visually indistinguishable’ rests entirely on subjective impression, it is an insubstantial base for an interpretation of the law and it is a social, and potentially legal, quagmire for all parties involved.
The purpose of this legal action is to ensure that:
(i) EHRC and GEO provide guidance that is compliant with the law
(ii) all amendments to EA2010 guidance will be publicly and prominently displayed and also disseminated to a list of specified organisations
(iii) EHRC and GEO’s failure to meet their PSED requirement is rectified
(iv) language and terms used in EA2010 guidance are solidly-based, rational and lawful
Stage 1: A pre-action protocol letter has been sent to EHRC and GEO - they have 14 days to respond.
We have an incredibly competent and hardworking legal team, which includes a QC. The initial target of £20k is to pay their Stage 1 fees. Believe me, they have earned every penny!
This case will make legal history. More importantly, it will redress the confusion about the single-sex exception, as noted at the 30 July 2019 meeting of the Women and Equalities Select Committee.
Clarity about EA2010 will benefit everyone.
Please support us by donating as much or as little as you can. Not everyone will be able to afford to donate, but your help in publicising our case and our fundraising drive will be invaluable.
Stage 2: If EHRC/GEO decide to fight this legal challenge, or do not respond within 14 days, the next step is to apply for permission to take the case to Judicial Review.
Stage 3: Judicial Review in the High Court
Stages 2 and 3 will require court time and even more time and work from our lawyers. Inevitably it is a costly process, thus the stretch target will be £100k.
Thank you for your supporting this case!
Thank you for helping to dispel confusion and bring much-needed clarity!
Jan. 15, 2021
Preliminary moves continue
In the last update I reported that we had lodged our documents - a ‘Statement of Facts and Grounds’ from our Barrister, which argued the case for Judicial Review, together with my Witness Statement.
Some weeks later, the EHRC lodged its ‘Grounds of Resistance’ document, which argued why the JR should not be granted. We considered their arguments spurious, so we quickly informed the court that we intended to challenge by 8 January - and did so on that date.
So now we are back in waiting mode.
Many thanks for your continuing support.
Nov. 12, 2020
I am pleased to report that we have submitted documents to be put before a judge for permission for a Judicial Review.
This phase took longer than expected but we wanted to make the strongest possible argument, backed up by a wealth of hard evidence. Three documents were submitted, totalling hundreds of pages.
Our argument is compelling and our evidence is damning. Nothing is ever certain, but we are quietly confident that we will gain permission and will proceed to JR.
Because of our collective diligence – we went through several rounds of drafts for each of the documents - costs for this just-concluded phase have consequently fallen short. I come free, lawyers do not. Pleasingly, our lawyers have minimised costs whenever they could and as far as they could, but they are still expensive.
I am more impressed than ever with Michael Stacey, Partner at Russell-Cooke LLP, and Jeremy Hyam QC, at 1 Crown Office Row Chambers. We think we’re in with a fairly good chance of winning this case but should we not, it won’t be because our legal team fell short.
Thank you again for your support and wonderful comments. Whenever my energies or spirits were low in these last gruelling weeks, I looked at them again and again and came away renewed and buoyed-up. You know how important this case is and how much rides on it. I draw strength from that.
If you possibly can, please donate. If you can do so safely, please promote to your family, friends and work colleagues.
Oct. 11, 2020
Update & News
We are in the final throes of preparing documents to bolster our argument as to why we should be given permission to proceed to Judicial Review - we are quietly confident.
This second stage has once again entailed a lot of hard work for our lawyers, and for me. Among other things, it has involved the time-consuming tasks of scrutinising hundreds of documents and websites to gather additional evidence of dissemination by external organisations of official unlawful guidance, and compilation into consequent write-ups.
I come free, lawyers do not. Legal costs in this case are unavoidably high. Legal costs for this stage are not yet met, so I’m asking you to donate again if you can possibly do so. And, if you can do so safely, please draw to the attention of your family members, friends, acquaintances and work colleagues.
We have changed strategy!
We are now only taking action against the Equality and Human Rights Commission (EHRC). Why? Because, if we win the case, the Government Equalities Office (GEO) must fall into line with the judgement. But what if the GEO doesn’t fall into line? Then we will move to seek a separate JR against them! The benefits of the changed strategy are (i) the legal action, with a focus on the main promulgator of unlawful guidance (EHRC), is clearer and more firmly based and (ii) legal costs will be reduced.
Jeremy Hyam QC was in court on 7 & 8 October, representing Claimants Keira Bell and Mrs A against Defendant Tavistock Clinic. If this case is lost (hope not), it won’t be because of poor representation! Jeremy spoke for 2.5 hours without interruption from the judges, unlike the Defendant’s QC who was interrupted repeatedly by the judges asking questions and for clarifications. In a masterly stroke, Jeremy turned the Defendant’s evidence on its head and used it to support the Claimants’ case!
AEA is in good hands.
What a surprise!
I have been shortlisted for the Emma Humphreys Memorial Prize. Though I don’t expect to win, being shortlisted is, in and of itself, a HUGE honour! I can still scarcely believe it!
You can join in the award celebrations here:
For those of you not familiar with Emma Humphreys, read about her here:
And read Emma’s writings here – make sure you have tissues to hand.
Thankyou for reading
Our gratitude goes to those who have already donated to AEA’s legal action – thank you so much for your support!
If it’s possible to do so, please donate.
If it’s safe to do so, please bring to the attention of everyone you know and promote on social media.
We have hills to climb but we are resolute and determined.
Sept. 30, 2020
Case going forward to 2nd stage!
Our requirements were not met and we are now moving to the second stage, which is to seek permission to proceed to Judicial Review.
We are now in process of drawing up documents to put before a judge. It’s impossible to say how long it will be before we receive that judicial decision.
It’s greatly heartening that so many see and understand the importance of this case.
Donations have covered legal costs up to this point and some proportion of second stage costs. Because of the complexity, including all the documents that have to be waded through, this case is necessarily time-consuming for our lawyers and that is costly. The second stage also generates court fees.
Please donate, if you can. If it’s safe for you to do so, please draw this case to the attention of your friends, family and work associates, as well as any social media contacts.
We have already succeeded in getting EHRC to change its guidance.
With your help, we will fight to accomplish even more!
Sept. 24, 2020
EHRC and GEO respond
Thankyou again for your support and for your encouraging and inspiring comments.
We have received responses from both Defendants.
Lawyers and I now closely reading and will update you within the next few days.
Sept. 10, 2020
You are magnificent
You truly are magnificent!
I want to thank you all again. Thank you for understanding the importance of this case. Thank you for standing up for women. Thank you for your comments, very many brought a lump to my throat. Thanks to you all, we now have enough funds to cover initial legal costs and also some funds in hand towards the second stage
At one end of the spectrum, some of you dug deeply into shallow purses in order to donate, an especial thank you to all for that sacrifice in these tough times. At the other end of the spectrum, one of you donated £10k - that was overwhelming. Whoever you are, just know that your donation catapulted the fund to a point at which I could stop worrying and I am so very grateful for that.
The Defendants asked for a further 14 days to which we agreed, so they now have until 22 Sept to respond. Apart from occasional posts on social media, until the way forward becomes clear I shall now go quiet and will not be soliciting donations.
Whatever happens we are assured of a victory.
If the Defendants capitulate and meet our stipulated requirements the case will end. Our requirements: (i) amend all unlawful guidance, whether in guidance documents or in the Statutory Code of Practice; (ii) pin a prominent announcement to the home page of their websites for a specified period; (iii) inform a specified list of organisations directly.
If the Defendants decide to fight, we go forward to the second stage which is to seek permission to proceed to a Judicial Review.
At this point, I will reactivate the campaign for donations.
Funds and excess funds
The way that CrowdJustice works is that the case owner [me, Ann Sinnott] never has hands on the money – this is the principal reason why I chose CJ. Donated funds are remitted to the solicitor. After all costs are met, excess funds are returned to CJ and are donated to CJ’s preferred charity. However, it is possible for the case owner to nominate other CJ cases for receipt of these funds. That is what I will do, for there are several other cases fighting different aspects of this issue, all worthy of support. When the time arrives, at whatever stage of the process, I will let you know the cases that I intend to nominate.
Thank you all again.
Aug. 30, 2020
Initial target met
Many thanks to all who have helped get us beyond our initial target. We are grateful to each and every one of you, including for your comments which have humbled and heartened in equal measure.
Now we’re into stretch target territory, so I’m taking this opportunity to flesh out why this case is important.
This isn’t a case about an individual woman who has undergone harassment and discrimination with whom we can identify and sympathise, who tugs our heart strings and opens our purses.
This case is dry and technical. It’s about rectifying unlawful application and wrongful interpretation of the law. It appeals to our sense of justice, our intellect rather than our capacity for empathy.
But this case also has many human faces and facets.
Each and every one of the legal actions for which we have gladly dipped into our purses to support, was made necessary because of a misinterpretation and misapplication of the law. Longstanding unlawful guidance, from the very entities that are responsible for overseeing equalities in the UK, created the situations that led to all past and current legal actions.
Unlawful guidance has enabled all the dreadful situations in which women find themselves.
Every female academic silenced and threatened with loss of tenure, every woman harassed in her workplace or sacked from her job, every author silenced or dropped by her publisher, every woman cancelled, every woman cheated of the trophy or award that was rightfully hers, every domestic violence refuge coercively threatened with loss of funding and forced into being ‘inclusive’, every woman insulted on social media for merely stating a belief in biological reality, every fear-filled woman silencing herself – all of these facilitated by unlawful guidance.
Organisations instating ‘gender neutral’ toilets and changing rooms, schools doing the same despite rocketing rates of sexual assaults and rapes in schools (even at primary levels) and in our hospitals, psychiatric as well as medical, single-sex wards being changed to mixed-sex to the deep dismay of patients, men as well as women - all facilitated by unlawful guidance.
Unlawful guidance lies at the root of it all and that’s why this case is vital and of fundamental importance.
The EHRC and GEO must be held to account. Official guidance must be clear and accurate. The law must be adhered to and properly applied.
A little more about AEA:
AEA is a Community Interest Company whose founding mission is to promote and further the interests of women and girls. Providing training on EA2010 and the single-sex exception is an important first project because EA2010 is potentially a good law for females, provided it is properly applied.
AEA became fully operational in Oct 2019 and quickly obtained a major national retailer as a client. Along with all other organisations, we were stymied by Covid. Income to date has been minimal, but so are outgoings. We cut our cloth according to our means so, although we have little capital, we have no debts. We were lucky enough to receive a small government bounce-back loan and that is helping to keep us going for now. If energies had not been redirected into dealing with EHRC and GEO’s unlawful guidance - and finally, as a last resort, this legal action, AEA’s online training would be up and running by now – but it will be soon!
As you can see, AEA is not some lavish foundation begging for your cash. AEA is, effectively, a new start-up asking for your financial support to enable this crucial legal action. An action which aims to ensure that EA2010 - which was in part designed to protect females - is correctly interpreted and properly applied.
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