May The Force Be With You

Update 322

Thanks to a reader for nominating No 6 in the Leading Female Season, Carrie Fisher as Princess Leia in Star Wars. Below are some of her finest moments.

Given some of the reports below, perhaps I should have re-named this update May The Farce Be With You!!

Irish Referendum Urgent - Vote No No

It is extremely worrying that the latest polling shows that the Yes vote is well ahead. See further below. If you are in Ireland or know anyone in Ireland please spread this around.

John McGuirk in Gript News ( THE FACTORS DRIVING “YES” SUPPORT, PER THE POLLS 26 February) reports:

There’s no real way to dress this up: Yesterday’s Sunday Business Post/Red C poll on the March 8^th referenda was about as bad as you can get at this stage of a campaign, if you’re somebody who is hoping or campaigning for “No” votes on that date.

First, the margin: In both referendums, the “Yes” side has a lead of approaching 3-1, with roughly 60% of people saying they plan to approve the amendments as opposed to 20% or thereabouts who plan to reject them.

Second, the lack of an “enthusiasm” gap: When the poll asked people how likely they were to vote, and excluded those who didn’t seem very likely to vote, the “Yes” lead actually increased by a small amount, rather than shrinking. This seems to suggest that lower turnout, if it materialises, won’t significantly impact the “Yes” vote.

And third, the small number of undecided voters: In both referendums, the Yes side is polling well over 50% and the undecided vote is in the 20s, meaning that if every undecided voter opted for the status quo, and a “No” vote, then it still wouldn’t be enough to overcome the Yes lead. By way of guidance, it’s estimated that somewhere around 70-80% of undecided voters tended to opt for a “no” vote in recent referenda. That wouldn’t be enough, though, if these figures hold.

Now for the case for optimism for the “No” side, which was offered perhaps more ably than I might manage by Richard Colwell, the managing director of Red C and the effective author of the poll, writing in the Business Post:

“Historically, it is only at this stage a couple of weeks out that ordinary voters start to engage with referendums, and the arguments become better established on both sides…. current polling suggests that both referendums will pass, but of course polls measure opinion at a moment in time. So with two weeks to go in the campaign, and with undecided voters possibly more likely to vote No, the result may be potentially closer than the current polling might suggest.”

One thing campaigners tend to forget is that while they are paying close attention to every argument made in a television or radio debate, or online, most voters have barely noticed them. At the time of writing, there are fully 13 days to go until the votes are cast, and it’s reasonable to expect that many voters will make up their minds finally with just a few days to go. The crucial debates, if the polls are to be reversed, will be held in the last ten days or so of the campaign.

In that context, the polling shows that the “No” side has two big hurdles: First, this:

The poll also asked people their views on the constitutional wording around family and care with almost half (48 per cent) of people saying the current wording around a woman’s place in the home was “outdated and undermines Irish women’s role in society.”

One quarter of those polled (25 per cent) said the existing language “does not exclude women and mothers from other roles, and serves to pay tribute to the work done by mothers in the home.”

By almost two to one, voters are of the view that the “women in the home” language is outdated. One might very well deplore outright misinformation such as that from the NWCI [ National Women’s Council Ireland who are leading the Yes campaign!!] and Minister Catherine Martin, both of whom have suggested that the constitution either says women’s place is at home, or that the state has some constitutional duty to oppress women under the current wording. Deploring it, however, is not enough: The YES side is pushing at an open door, with many voters instinctively believing that there’s – not to overcomplicate things – something dodgy about the current wording. This means that the starting position of almost half the electorate is that the women-in-the-home clause should go.

Second, this:

‘Over half of people (51 per cent) said the referendum on non-marital families enhances the definition of a family and does not weaken traditional marriage, while 24 per cent said it would.’

There’s that two-to-one margin again, with over half of voters apparently of the view that we should recognise more types of family in the constitution.

The significance here is that in both referendums, the YES side is starting out with an in-built advantage, which is an electorate that is well-disposed to some sort of change. To put this simply: If the voter is thinking about whether he or she approves of the existing wording in the constitution when they go to vote, then the Yes side will win.

If one was to apply this thinking to the campaign to date, it would tend to suggest that some of the “No” side’s messaging might be ineffective: Think here of slogans like “don’t delete women/mothers from the constitution”. On that proposition, the poll suggests, the “No” side has already lost, with half of voters already wanting to take that step because they agree with the proposition that the current wording is “outdated”.

On the family referendum, criticisms of the “No” side are harder to muster: In both votes, it is clear that the “No” side’s best chance to win is to delegitimise and raise doubts about the proposed new wording, and hope that voters conclude that the change is too risky. In that respect, the focus on the definition of “durable relationships” and its potential implications for inheritance, immigration, and polyamorous relationships are well understood by the voters seems wise.

However, it might also be wise to start alerting voters to the argument that constitutional change is not strictly necessary if the state wishes to recognise more family types. For example, while the present wording recognises the family founded on marriage, it does not actively preclude the legal recognition of other family types. While the “No” side has been effective at highlighting the risks of change, they have not been as effective in undermining the perceived need for change.

Polls, of course, can be wrong. And it remains very likely that at minimum, the final results will be much closer to 50/50 than the current polling suggests. But at the same time, there’s no point avoiding the plain facts: As of now, the “Yes” side is in a very strong position, and it’s incumbent on the “No” side to think carefully about how to reverse that in the time remaining.

‘Transgender Prisoners’

Gript also report on very important information on trans identifying prisoners in Britain. They also report on the progress of the Bill started by supporters of The Countess which aims to ban trans identifying men from women’s prisons.

Maria Maynes ( MORE THAN 70% OF TRANS PRISONERS IN BRITAIN CONVICTED OF SEX OFFENCES OR VIOLENT CRIMES 26 February) reports: 

New statistics released by the Department of Justice in Britain have indicated that more than 70 per cent of transgender prisoners in British jails are serving sentences for serious offences, including rape, sexual assault, grevious bodily harm, and robbery.

The data, released by the UK government, shows that out of 244 transgender prisoners, at least 181 were serving sentences for violent crimes.

There are up to 144 men who identify as female housed in male jails in Britain, with five currently imprisoned in female jails. 

The statistics also show that a further 25 transgender males, women who identify as men, located in female prisons have been convicted of violent crimes and sexual offences – with The Telegraph reporting that a year ago, there were fewer than five such prisoners, according to the Ministry of Justice.

Former prison governor Rhona Hotchkiss told the newspaper that in her experience, the majority of trans women prisoners changed their gender “only when they came into contact with the criminal justice system.”

Ms Hotchkiss, who retired as a Prison Governor in 2019, said the figures showed why men who identify as women should only be housed in male prisons.

“Let me be very clear, trans people are not inherently violent and the vast majority live crime-free lives,” she said.

“It is always an issue to have males who identify as women in women’s prisons. It’s not necessarily always the physical threat that they experience but the re-traumatisation because many women in prison are already traumatised at the hands of men. They are also faced with constant gaslighting when they are forced to call these men ‘she’. The vast majority of men who identify as transgender in prison did not do so before they came into contact with the justice system.”

The latest figures from the Department of Justice have attracted the attention of J.K. Rowling, who shared the news piece from The Telegraph on X.

Olympic swimmer and commentator Sharron Davies MBE also responded to the story on X, writing to her followers: “We really must deal in facts to set legislation to protect women & children. Or pay a massive price. More than 70% of transgender prisoners are in for sex offences or violent crimes (compared to 18% of men & men commit 99% of sexual crimes) facts matter.”

In February 2023, a new transgender prisoner policy came into force in Britain, under new measures which meant transgender inmates with male genitalia would no longer be able to be held in mainstream women’s prisons. The UK Ministry of Justice said at the time that the new approach had been extended to include those who had committed violent crimes.

A Ministry of Justice spokesman told the Telegraph newspaper: “Well over 90 per cent of transgender women in custody are held in the men’s estate. We changed the rules last year so transgender women who’ve been convicted of sexual or violent offences – or who retain male genitalia – cannot be held in a women’s prison unless in truly exceptional circumstances.”

Ireland has no official policy on trans prisoners, however Taoiseach Leo Varadkar said last Spring that introducing policies similar to those in Scotland may have to be considered here.

In October, Aontú submitted the Gender Recognition (Amendment) (Prisons) Bill 2023 to the Dáil, with party leader Peadar Tóibín saying the Bill would “end the shocking government practice of putting male born sex offenders in women’s prisons.” 

A Dáil debate in November heard that the Aontú Bill “seeks to prevent male-born criminals being placed into women’s prisons,” with Deputy Tóibín telling the House: “Our Bill provides that a gender recognition certificate does not affect whether a person is deemed male or female for the purpose of applying the existing rule as to single-sex accommodation in prisons.”

Nine other TDs have signed the Bill: Deputies Seán Canney, Noel Grealish, Willie O’Dea, Carol Nolan, Mattie McGrath, Michael Healy-Rae, Danny Healy-Rae, Richard O’Donoghue and Michael Collins. 

Deputy Tóibín said before Christmas that other Fianna Fáil, Fine Gael and Green Party representatives have said they support the Bill. 

Iowa Victory

In case you have missed it, I wanted to emphasise an important court case from Iowa reported on by EDI Jester care of Kara Dansky where a school district was forced to remove a policy that compelled staff or students to recognise a child’s chosen ‘gender identity’.

The Rainbow Badge Scheme

Good piece from Sex Matters explaining the long term effects of the Rainbow Badge Scheme within the NHS.

What is the indelible mark left by the NHS Rainbow Badge scheme? (22 February)

The organisers of the NHS Rainbow Badge scheme have announced that it has come to an end due to lack of funding. But project lead Alex Matheson says that “the project has left an indelible mark” on NHS trusts. 

The scheme was created in a London hospital in 2018 and adopted by NHS England for national rollout. Dr Michael Brady, the national advisor for LGBT Health, NHS England and NHS Improvement, said that over 90% of NHS trusts in England were participating after phase one. NHS Scotland has a scheme called the NHS Scotland Pride Badge which is essentially the same thing and which is continuing.

Badges were just the start

The badges were given to NHS staff who pledged to “reduce inequalities and provide support and signposting to LGBT+ people”. This is a laudable aim. NHS services should be inclusive for everyone. But the problem with this scheme is that, in focusing on the demands of one group, it demanded changes that lead to confusion and which could be harmful to patients. 

Phase two of the scheme started in 2021, when Stonewall and the LGBT Consortium were appointed by NHS England to benchmark and award NHS organisations for their work on ”LGBT+ inclusion”. Behind the brightly coloured badges was a small army of staff providing briefings, filling in feedback forms and reporting back to the assessors. Clinical and administrative staff were expected to attend webinars to prove their allyship. 

NHS Trusts pay to implement “Stonewall law”

Under the scheme, Stonewall or the LGBT Consortium assessed the policies and procedures of participating NHS Trusts and gave them marks for compliance – not with the law, but with what Stonewall wanted.

Through freedom-of-information requests, the reports made by NHS Trusts to the assessors and the feedback they received have been obtained. These reveal how the scheme has caused chaos in the health service.

Trusts score well on the scheme by taking actions such as:

• removing the words “mother” and “woman” from maternity policies for staff

• changing the names of departments and medical procedures to avoid references to women or the word “female”

• replacing legally correct legal terms with concepts like “non-binary” that do not exist in UK law and listing the protected characteristics of the Equality Act incorrectly

• requiring staff to ask patients their preferred pronouns, and checking with patients that staff have done so

• adopting policies on transitioning at work in line with Stonewall recommendations.

There does not appear to be the same focus on replacing male biological and medical terms with “gender-neutral” terms. 

In feedback given to NHS Trusts, unnamed assessors from Stonewall or the LGBT Consortium tell them:

“We highly recommend replacing the term ‘gender reassignment’ with ‘trans status’, as this is more inclusive of non-binary people as well as being more commonly used and less medicalised.”

“If making reference to the protected characteristics, we advise listing them as they are mentioned in the Equality Act 2010, as well as going above and beyond this to also include a commitment to supporting non-binary people.”

“Non-binary” has no status in UK law, and no relevance to healthcare needs. Nor does there appear to be any actual training on healthcare issues relating to LGBT+ people – perhaps because they are quite different, depending on whether you’re male or female, gay or transsexual.

Unclear language harms women’s health 

One NHS Trust was told: “Instead of saying ‘women’s health’, name the department according to its purpose, such as colposcopy [cervical examination]”. But how many people know what a colposcopy is? The charity Jo’s Trust has reported that half of women do not know what a cervix is. The NHS reports that women with learning difficulties and women from ethnic minorities are less likely to attend cervical screening. Among the factors in women not attending cervical screening are “cultural or language barriers” and “no female sample takers being available”. 

Erasing female-specific language in healthcare to accommodate the sensitivities of those females who do not want to be women, or those males who do, comes at a considerable cost to the many women who do not understand the new language.

NHS staff have concerns

It’s not just service users who find the language confusing. One NHS Trust reported in its Rainbow Badge audit that its maternity services is undertaking a comprehensive assessment of all patients, covering “cis-gendered, trans women and non-binary persons”. The audit report said: “When thinking about perinatal service provision the patient cohort would be trans men not trans women. A trans woman is someone who was assigned male at birth but identifies and lives as a woman.”

A staff member reported:

“I have experience of a patient changing genders on a daily basis – it would be completely impractical to move this person between a male  and female ward on an ongoing basis.”

Another said:

“Birth sex is an essential to provide healthcare to assess risk of pregnancy and other sex-based conditions. Pretending sex doesn’t exist doesn’t help anyone, including trans people. For example, the risk that a trans man is not assessed for pregnancy out of politeness.”

One-sided policies for transitioning staff

The assessment survey asks NHS trusts to submit their policies for allowing employees to change their “gender marker” on workplace systems. There is nothing in the assessments to suggest that NHS Trusts should consider the rights of other staff and of patients when they do this. 

A male doctor or nurse who changes his name and “gender marker” has not changed sex, and this remains relevant to other staff (such as in changing rooms and showers) and to patients being examined.

Staff are unhappy

It’s clear from staff comments that many find this scheme distracting and unhelpful. Some resent what they see as a disproportionate use of resources. Others feel it is divisive and irrelevant to focus on one aspect of some people’s identities. In fact, the scheme is sowing division among staff.

“What is discriminatory is to impose LGBT badges on religious staff (Jewish, Muslim, Christians etc.) whose religious beliefs directly contradict celebration of transhumanism and same sex relationships. This is direct discrimination on religious grounds.”

“I do not feel it is appropriate for a person’s sexual preference to be discussed and / or celebrated by the workplace? This should be a deeply personal matter and no one should have to feel uncomfortable.” 

“Spend money and resources on more pressing needs.”

“I think Stonewall are creating imaginary problems where there are none in order to keep their massive funding coming.”

“I don’t think it is necessary to provide any further training, it is entirely possible to deliver high quality care to our patients with no knowledge of their sexual orientation or gender identification. This is another example of virtue signalling by the NHS and our Trust and is contributing to dissatisfaction of our staff. This is evidenced by our poor staff survey results.” 

“Why would they need extra support? Being lgbt does not make them mentally ill or disabled, does it?”

“I’d like to see the hospital operate as a hospital and not a rainbow flag waving sex-obsessed nuthouse.”

“We should stop saying birthing people in maternity policies. We are educated people who can adjust our wording for the minority that are trans. I think it is devaluing women and mothers.”

Oncologist Professor Angus Dalgleish, quoted in the Daily Mail, said:

“The edict is Orwellian. Patients are even being handed questionnaires to check up on us, with questions such as: ‘Have you been asked by staff, or on a form, if you have a trans history, or if your gender is not the same as the gender you were given at birth?’” 

Staff comments like these are flagged as “problematic” by the Rainbow Badge assessors.

The cost to healthcare

We’re paying hundreds of thousands of pounds for this. Freedom-of-information requests have revealed that NHS England spent £220,000 on the Rainbow Badge scheme in 2021 to 2022, when there were 50 trusts taking part. Since then it’s been reported by the Daily Mail that 77 trusts are involved – and this does not include the NHS in Scotland, Wales or Northern Ireland. Then there are staff costs. The time spent by clinical and administrative staff in every participating NHS trust is unknown.

Announcing the extension of the scheme in a statement put out by Stonewall in 2021, Dr Michael Brady said: “I am delighted that we’re able to build on this success by investing in Phase 2 of the project, to support delivery of wider objectives to improve the care and reduce inequalities for LGBT patients, as well as improving experience for LGBT staff.” 

But there is no evidence from the audit reports of any focus on healthcare or outcomes. There is, however, evidence that this costly scheme has left a legacy of division and confusion for NHS staff and patients. And although the scheme has come to an end in England, the policies it supported have now been widely adopted across the NHS. 

The scheme encouraged NHS trusts to review their policies, communication and language to pay attention to one group, rather than all. This is not inclusion. 

What a ridiculous waste of money!! All thoughts gratefully received.

Just Say He!!

Hopefully most if not all of you will have seen the publicity around the trans identifying man who calls himself Scarlet Blake who murdered a stranger and previously tortured and killed a cat. Most of the media, including the BBC and the Guardian, have been busy reporting this as if it was a crime committed by a woman!!

JL dealt with it on the Glinner update here (final article):

https://grahamlinehan.substack.com/p/a-week-in-the-war-on-women-monday-4a2

Andrew Doyle has dealt with it and other examples of misreporting by the media on his substack:

https://andrewdoyle.substack.com/p/these-criminals-are-not-women

Kellie-Jay Keen has discussed it with Julia Hartley-Brewer on Talk TV:

I reported on the latest version of the Independent Press Standards Organisation’s Sex and Gender reporting guidance here:

https://dustymasterson.substack.com/p/never-smile-at-an-autogynephile

The most important section is:

"The press should not make pejorative or prejudicial reference to an individual’s sex or gender identity.

• Journalists may use various methods to ensure coverage of sex and gender identity is accurate. These may include, but are not limited to, providing information, presenting different opinions where relevant, and approaching second sources.

• Journalists should consider whether information about an individual’s gender identity is genuinely relevant to an article. Examples of relevance could be where a quote needs to be contextualised or to explain the inclusion of a source.

• Language relating to gender and identity is nuanced. Journalists should take care not to publish inaccurate and misleading information."

The most important part is surely, in my opinion:

"Journalists should take care not to publish inaccurate and misleading information"

If readers end up thinking a man is a woman surely that amounts to publishing “inaccurate and misleading information”. Well done to all who are putting in formal complaints about this kind of reporting.

Clearly large swathes of the press and the media more generally ( and, so I am informed, the National Union of Journalists) are failing to have regard to this guidance.

Thank heavens for citizen journalists, eh? 😎😎😎

Single Sex Toilets

I reported on a recent Scottish Tribunal case here:

https://dustymasterson.substack.com/p/samson-and-delilah

This case referred back to a previous case from 31 January 2023 before the Employment Appeal Tribunal called Earl Shilton Town Council v Miller.

In this case a female employee of the Town Council was successful in bringing a direct sex discrimination claim against the Council for having inadequate women’s toilet facilities. As I did with the previous case I have provided extracts from the judgment after the Endpiece and please feel free to copy and paste those if required.

These cases made me wonder whether the provision of just unisex or so called ‘gender neutral’ toilets may be unlawful. JL has very helpfully said to me in a response on this issue:

The Workplace (Health, Safety and Welfare) Regulations 1992 set out statutory obligations to provide separate male and female toilet facilities for employees. The regulations currently allow employers to install gender neutral facilities but only where they are in separate rooms that are lockable from the inside. So, if the unisex toilet is NOT self contained, I suspect there are grounds for legal action. Not necessarily because women are being discriminated because of their sex but because the employer is in breach of the regulations.

Thanks to wonderful JL for that.

Unfortunately neither this case nor the previous one I reported on answer the question of how a Tribunal might deal with a case where the employer decided that trans identifying men can use the women’s single sex toilet. All thoughts on this gratefully received.

Also let me know if any other queries about this subject.

The full judgment is here:

https://assets.publishing.service.gov.uk/media/63d8076fd3bf7f252a730a11/Earl_Shilton_Town_Council_-v-_Ms_K_Miller__2023__EAT_5.pdf

Girls’ Basketball

In the last update I reported on the case of a trans identifying boy who injured three girls during a recent basketball game in the States:

https://dustymasterson.substack.com/p/the-quiet-man

A video shows the boy wrenching the ball from one girl and then flinging her to the ground. Clearly, aside from the fact that he should not have been playing in a girls’ game at all, he should have been sent off for this foul but he was not. Thanks to a wonderful reader for excellently summing things up:

I agree that even if the [ trans identifying boy] had behaved impeccably it would still be wrong and unfair. But the fact that he was not punished for the violence of his actions on the court and breaking the rules of the game (when presumably an actual biological woman would have been) indicates fear on the part of the referee/umpire overseeing the game. It speaks to pressure being brought to bear, behind the scene that makes the player actually untouchable. Or else once you sacrifice fairness by including a man in a women's game, it's impossible to maintain any standards at all.

There was also an excellent discussion on GB News Free Speech Nation between Andrew Doyle and Fiona McAnena of Fair Play for Women about the case of Emily Bridges and women’s sport in general:

Human Gay Male

This group has been set up for gay men who are gender critical. Welcome to the Terf Resistance, guys! James Roberts has written about the group on the Glinner Update:

https://grahamlinehan.substack.com/p/where-are-the-gay-men

Endpiece

EDI Jester has done three ( very entertaining) videos about a totally off with the Woo gender ideology training course run for organisations by the Chartered Institute of Personnel and Development. Part 2 looks at a course where the (bonkers) woman trainer refers to the Ying and the Yang. This led my addled brain to a much better training course (though only involving the Ying - combined with the Tong) provided by the Goons. Enjoy!

The next update will hopefully be on Thursday, Terven.

Don’t forget the highlights of the judgment below if you are interested.

If you like this update, please send to a friend. Until next time, Terven. This isn’t over yet! Please subscribe for free, like and comment.

Earl Shilton Town Council v Miller

The background facts

Introduction

1. This is an appeal against the judgment of Employment Judge Faulkner, sitting with members, at the Leicester Tribunal Hearing Centre on 9, 10, 11 and 12 March, remotely on 21 October and in chambers on 22 October 2020. The judgment was sent to the parties on 27 November 2020.

2. The employment tribunal found that the claimant had been subject to harassment on three occasions and had been victimised by being dismissed. This appeal is against a further finding that the respondent discriminated against the claimant because of her sex in relation to the provision of toilet facilities from August 2016 until 18 June 2018.

The facts

3. The outline facts are taken from the judgment. The Respondent is a town council with volunteer elected councillors. The respondent has few employees. The Claimant was employed from 30 August 2016 as an Office Clerk. The Respondent operates from a building owned by the Methodist Church. The building also hosts a playgroup. The men’s toilets are in the part of the building used by the respondent. The women’s toilets are in the part of the building used for the playgroup. The women’s toilets are used by children attending the playgroup. Female employees had to attract the attention of one of the playground staff if they wanted to use the women’s toilets and wait until the toilets had been checked to see if a child was present. It was not always easy to attract the attention of one of the playgroup staff. This arrangement was not suitable for the claimant if she needed to use the toilet urgently.

4. From May 2017, Mark Jackson, the respondent's Town Clerk, offered female employees the use of the men’s toilets. The men’s toilets consisted of a single cubicle and a trough urinal. There was a sign that should be placed on the door when the toilet was being used by a woman, but it did not always stay in place. The only facility suitable for women was the single cubicle. It could only be accessed by passing the urinal. There was no lock on the main entrance door to the men’s toilets. There was a risk of a man entering the facility regardless of the sign on the door, which meant that a woman might see a man using the urinal without knowing he was there having used the lavatory in the cubicle, or on entering the men’s toilet. The claimant used the women’s toilet if she could, but often had no choice but to use the men’s toilet, particularly if in a hurry. The men’s toilets had no sanitary bin. The claimant complained about the lack of a sanitary bin in January 2018. It was not until early June 2018 that the church arranged for an internal lock to be fitted to the external door to the men’s toilets, that could prevent access to the men’s toilets when the cubicle was being used by a woman, and provided a sanitary bin. The sanitary bin was only emptied on request by the claimant.

The Law.

9. Section 39 of the Equality Act 2010 (“EQA”) renders detrimental discriminatory treatment unlawful: (2) An employer (A) must not discriminate against an employee of A's (B)— … (d) by subjecting B to any other detriment.

10. Direct discrimination is defined by section 13 EQA:

13 Direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

…

12. In Regina (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2010] 2 A.C. 728 Baroness Hale explained the fundamental distinction between direct and indirect discrimination: 56. The basic difference between direct and indirect discrimination is plain: see Mummery LJ in R (Elias) v Secretary of State for Defence [2006] 1 WLR 3213 , para 119. The rule against direct discrimination aims to achieve formal equality of treatment: there must be no less favourable treatment between otherwise similarly situated people on grounds of colour, race, nationality or ethnic or national origins. Indirect discrimination looks beyond formal equality towards a more substantive equality of results: criteria which appear neutral on their face may have a disproportionately adverse impact upon people of a particular colour, race, nationality or ethnic or national origins.

13. Crucially, save for age discrimination, direct discrimination cannot be justified whereas indirect discrimination can be justified, where the application of a provision, criterion or practice that would otherwise be discriminatory is a proportionate means of achieving a legitimate aim.

…

20. Thus, the authorities establish that in certain circumstances treatment that is the “same” could be less favourable treatment and that in other circumstances treatment that is “different” would not be less favourable. Context is all - and the assessment calls for the robust common sense of the employment tribunal in determining whether there is less favourable treatment because of sex of the type that the EQA is intended to combat.

The conclusions

28. I can see no error of law by the employment tribunal in determining this case. It applied robust common sense to determine that this is the type of treatment that constitutes direct sex discrimination contrary to the EQA. Taken from her perspective the claimant was treated less favourably than men in that she, a woman, was at risk of seeing a man using the urinals. While a man might see another man use the urinals, the treatment of the claimant, as a woman, was less favourable. A woman being at risk of seeing a man using the urinals is obviously not the same as the risk of a man seeing another man using the urinals. Put another way, if one starts by considering the nature of the treatment, the claimant was not provided with toilet facilities that were adequate to her needs, because of the risk of coming across a man using the urinal and the lack of a sanitary bin. That treatment was less favourable than that accorded to men.

29. The respondent did not argue at the employment tribunal that there was no less favourable treatment because a man was at risk of being seen by a woman using the urinals. That point was raised by the employment tribunal in its judgment, but it was specifically noted that the point had not been raised by the respondent. In any event, the fact that a man might also be able to assert direct sex discrimination would not be fatal to the claimant’s claim, just as it was not fatal to the claim of a girl asserting less favourable treatment through segregation in education that a boy might be able to bring a similar claim. Nor did it matter that another woman had not objected to the arrangements because the discriminatory impact was to be assessed from the perspective of the claimant.

30. The employment tribunal was entitled to conclude, on the basis of the arguments advanced before it, that the provision of toilet facilities for the claimant was inadequate in comparison to men and she had thereby suffered less favourable treatment. I do not consider there was any arguable error of law in considering the overall provision of such toilet facilities rather than separately analysing the possible components of the treatment. …

31. The treatment clearly constituted a detriment. The respondent did not assert otherwise in this appeal.

32. The employment tribunal correctly concluded that this was a case in which it did not have to consider the mental process of a discriminator because the treatment was inherently because of sex. This was not an “exact correspondence” type case, but one in which the discrimination was inherent in the treatment.