The Equal Treatment Bench Book (ETBB) provides advice and guidance for judges who are duty bound to ensure that all who come before the courts are dealt with in an understanding fashion, regardless of their personal backgrounds, and in line with equality laws.
The current version dates from 2014 and is recognised as being woefully out-of-date. Input from Equality Network heavily influenced the language of the ETBB and it shows considerable bias towards the concept of gender ideology as well as misrepresenting several key areas of law which have been clarified by recent court decisions.
The ETBB is currently being reviewed and we were pleased to be invited to discuss our views in a meeting earlier this month with the Sheriff tasked with bringing it up-to-date. We raised the following points in the meeting and in a follow-up email and we hope the update will take gender critical views into account and better meet the needs of women.
Points of issue or examples of bias in the current ETBB:
- Page 12: The protected characteristic of ‘Gender’ is factually incorrect, it should say ‘Sex’.
- Page 39/43: ‘Gender of Interpreter’ should reflect the Equality Act and read ‘Sex of Interpreter’. Bearing in mind the reason for this section is to ensure an abused female might feel safer with other females, sex based language is important. Women should not have to worry or second guess if “gender” actually meets her needs for a female interpreter.
- Chapter 8: Sexual Orientation and Gender Identity. Note that “Gender Identity’ is not a protected characteristic, ’Gender Reassignment’ is.
- Page 45: Definition of Lesbian. Should read: a woman’s sexual orientation towards a person of the same sex. This reflects the definition in section 12 of the Equality Act.
- Page 45: Definition of Transgender. ‘Sex they were assigned at birth’ is factually wrong. No-one’s sex is assigned or allocated by a doctor. Sex is fixed at conception and observed at birth (or even before).
There is no definition of this term in any law. ‘Transgender identity’ is a characteristic in the Hate Crime and Public Order (Scotland) Act 2021 but is undefined.
- Page 45: Definition of Gender Identity. There is no evidence to support the idea that everyone has a gender identity and many people hold opposing views. Recent case law (Forstater ruling) has clarified that “gender critical” views are protected under the Equality Act under the protected characteristic of belief. Gender critical simply means an understanding that humans come in two sexes, sex cannot be changed and there are times in life and law where sex is important.
It is appropriate that a new section is added to the bench book to cover this as the rights of people who hold this belief need to be protected and may sometimes conflict with the ideas put forward by Equality Network and other trans organisations, particularly when it comes to preferred pronoun use in court. There is also a worrying creep elsewhere of offensive names for women, such as people with a vagina, cervix havers, chestfeeders, cisgender, and I would hope we never hear such demeaning language used by officials in court.
- Page 45: Definition of ‘Gender reassignment’ is incomplete. The full definition from section 7 of the Equality Act is a transsexual person who is “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.”
- Page 45: Definition of LGBT. The grouping together of LGB (sexual orientation) and Trans (definition varies and may not align with the protected characteristic of gender reassignment) into one homogeneous group is no longer agreed upon by all parties. A new charity, LGB Alliance was created in 2019 for this specific purpose. Many LGB people feel that the transgender movement is misogynistic and homophobic. If any male or female can choose which sex they are (simply by declaring it) then what does it mean to be same sex attracted?
- Page 45: Missing definitions. Suggestions to add:
Sex: The two sexes, Male and Female. This is fixed at conception and cannot be changed. It is in every cell of a human’s body.
DSD: Differences of Sexual Development. Sometimes known as ‘Intersex’ but many find this term offensive. There are around 40 different types of DSD with varying degrees of rarity and disorder. All conditions belong to one sex or the other. There is no ‘third sex’.
See Sex Matters for these and other definitions.
- Page 47: When referring to research ‘Early Medical Treatment for Transsexual Peiople, 2006’ it should be noted that definitions and research have increased greatly in recent years. Firstly, ‘transsexuals’ are adults who have generally had reassignment surgery and are permanently medicalised. The current definition of ‘transgender’ includes a very broad spectrum of individuals ranging from transsexuals to transvestites, people who decide on any given day that their gender and pronouns changes, to autogynephiles who get sexually aroused by dressing up ‘like women’. The research into how children should be treated medically and therapeutically is of great dispute. Further readings can be found in the Cass Review, Time to Think by Hannah Barnes, and Trans: when Ideology meets reality by Helen Joyce. This area is by no means settled science and courts should be aware of the contested views on this subject.
- Page 47/48: Experiences of Prejudice. To provide balance to the prejudice experienced by the LGBT community (and remember there is much disagreement about LGB and T being grouped together), the prejudice Gender Critical people regularly face by trans activists and their allies is intense, both online, in the political sphere and in person. Provided below are just three examples in the UK.
In July 2023 at a Women’s speaking event in Aberdeen, a lady was physically assaulted. The youth Trans activist was let off with a warning. See full press article here: https://www.heraldscotland.com/news/23684932.police-scotland-human-rights-row-women-wont-wheesht-assault/
A violent criminal, Sarah Jane Barker, was cheered whilst encouraging a crowd at a Pride event to ‘punch a terf’. It took much pressure from feminist groups to get this individual arrested and then in court, the judge decided he was ‘just joking’. See article: https://www.heraldscotland.com/news/23684932.police-scotland-human-rights-row-women-wont-wheesht-assault/
In September 2023, Sex Matters held a meeting to discuss womens’ rights in Manchester Museum of History. They were followed from the train station to the event by a mob of angry trans activists shouting obscenities. After the event the ladies needed a police escort home. Here is Helen Joyce’s account of the day. https://www.thehelenjoyce.com/joyce-activated-issue-60/
There are literally hundreds of instances where women want to talk about their rights and how they might conflict with those of trans people and we are met with mob mentality to shut us down. The police can very often help and facilitate our right to free speech, but this has not always been successful.
- Page 48: Common Misconceptions. To provide balance we would like to provide a note that refutes the common misconceptions assumed about Gender Critical people. We are a broad church of opinions and cross all political parties, we are a mix of ages, sexes, sexual orientations and yes there are many transsexuals who understand that sex is binary and immutable. We are not transphobic, homophobic, bigots, Nazis or fascists, indeed we want the opposite of fascism, freedom to talk and debate in a respectful manner. We want trans people to live happily but we understand that in reality, there is a conflict between women’s sex-based rights and males who identify as women and who wish to take up that space. When it comes to sport, toilets, changing rooms, medical treatment, language and the freedom to assemble, women should not be vilified for wanting to feel safe and treated fairly.
- Page 49: Claims that child abuse is NOT gender specific. This is not correct. A quick Google search will show that from the results of hundreds of research studies throughout the world that over 90% of child abuse is committed by males.
- Page 50: Gender Recognition. We do not have self-identification of sex/gender in this country (subject to the decision in the section 35 case ongoing in the Court of Session) and we would argue that the best starting point is to treat people as the sex they are in law, in line with our court decision.
Even after a GRC has been issued there are provisions in the Equality Act allowing GRC holders to be excluded from single-sex services (which we believe should be utilised to their full extent) and the “for all purposes” has some important exceptions, particularly with disclosure relating to detection of crime and sex-specific offences. It may be advisable for this section to be reviewed by a specialist lawyer.
The Scottish Prison Service policy has changed with an interim policy from January 2023 that says no male prisoners are transferred to the women’s estate if they have been convicted of violent or sexual crimes against women, and all new male prisoners are initially assessed within a male facility. The SPS have been conducting a review on the management of trans prisoners, and this is due to be published before the end of 2023.
Policies of various organisations may change following the judgment on 1st Nov 2023 in For Women Scotland v Scottish Ministers which states at para 56 “Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex.” and para 65: “individuals without a GRC, whether they have the protected characteristic of gender reassignment or not, retain the sex in which they were born.”
- Page 51: Criminal law. The Equality Act and other legislation recognises sexual orientation and gender reassignment as separate and distinct protected characteristics, so it is not helpful to have them combined together as LGBT, particularly when talking about criminal law. There is a mention of murder, but there has never been a trans person murdered in Scotland and the hate crime data for a trans aggravator is tiny (about 10 convictions per year, primarily for minor offences – see tables 10 and 11 in the Excel spreadsheet here) and it has actually dropped 36% in the last year. The picture for sexual orientation is much different.
The study cited here dates from 1999 and is outdated. We would caution about including any studies from trans lobby groups (also in chapter 8) as, in our experience, they are biased and not peer reviewed or statistically valid.
- Page 52: Family law. It may be advisable for this section to be reviewed by a specialist lawyer. A case to be aware of is Freddy McConnell who gave birth after obtaining a GRC and wished to be recorded on the child’s birth certificate as ‘father’ instead of ‘mother’. The courts ruled against this and McConnell has been refused permission for the case to be heard at the ECtHR.
Also civil partners/spouses have rights to exit the marriage through annulment if their partner wishes to apply for a GRC. Interim certificates can be issued to allow time for this to be resolved.
- Page 53: Anti-discrimination law. This could also do with a review by lawyers to explain what discrimination is, cover the full nine protected characteristics of the Equality Act and how they have to be balanced in employment, education and the provision of goods and services. There’s no hierarchy and at times may conflict. Again, the decision in our judicial review comes into play; a person with the protected characteristic of gender reassignment is protected against discrimination (applying for jobs, protected time off work for medical appointments, etc) but remains of their birth sex with no prima facie rights to the opposite sex single-sex service. Obtaining a GRC is the point that this may change, depending on the Schedule 3 Equality Act exceptions applied by a service.
- Page 54: This is a very lengthy paragraph advising on how fearful it is for LGBT people to disclose their LGBT status and that judges should be mindful of this and any burdens it may cause for LGBT people. Given the fact that LGBT people are listed as separate protected characteristics under the Equality Act and such rights have to be claimed by stating you hold that protected characteristic, this seems unrealistic. Times have also changed, perhaps this paragraph is outdated? Also, unclear as to what accommodations judges should make for someone who is secret about their identity. Assumes judges are mind readers.
- Page 55: See the note above on p50 about the new SPS trans prisoner policy, and review due to be published shortly.
- Page 55: Birth assigned sex is factually incorrect. Sex is observed at birth.
- Page 55: States that in the vast majority of cases a person’s birth sex should be concealed and only the self-identified gender should be used. We would argue that in ALL cases of violence against women and children the person’s sex is part of the reason he is violent and should be evident in the proceedings. Sex is also relevant in multiple other types of cases.
This is not a hypothetical and is having a real and current impact on women. In the UK, Maria McLaughlin was chided by the judge for “bad grace” for not using her attacker’s preferred pronouns when recounting her experience of assault. I understand that in the recent case of Isla Bryson the victims referred to him using the natural pronouns for his sex, but still had to listen to the court refer to their rapist as “she” and read about “her penis” in the newspapers. The press tell us they report using the language used in court so the traumatising effects are often continued beyond the court room.
Rape is about power. We are all aware of the low conviction rate and it will deter women reporting rape even more so if the accused can wield the power of the court to force his victim to say she has been raped by a woman and hear judges affirm such absurdities as “her penis”. This is abusive in the extreme.
Women must be allowed to recount their experience in their own words without feeling compelled to modify their language and comply with an ideology they do not believe in. To do otherwise is likely to interfere with the ability to give evidence about a traumatic event. A recent post by JK Rowling sums up the issue well.
The bench book for England has recently been revised. It is not perfect but at least it does recognise this issue. It states:
page 81: Pronouns should not be used. When referring to a person the name of the person should be used on every occasion.
page 338: There may be situations where the rights of a witness to refer to a trans person by pronouns matching their gender assigned at birth, or to otherwise reveal a person’s trans status, clash with the trans person’s right to privacy. It is important to identify such potential difficulties in advance, preferably at a case management stage, but otherwise at the outset of the hearing.
page 338: Why the witness is unwilling or unable to give evidence in a way which maintains the trans person’s privacy. For example, a victim of domestic abuse or sexual violence at the hands of a trans person may understandably describe the alleged perpetrator and use pronouns consistent with their gender assigned at birth because that is in accordance with the victim’s experience and perception of the events. Artificial steps such as requiring a victim to modify his/her language to disguise this risks interfering with his/her ability to give evidence of a traumatic event.
- Page 55: Section 22 of the GRA 2004. Should be checked by a lawyer. There are no such restrictions regarding people who do not hold a GRC and, for those who do, the GRA 2004 has some important exceptions to non-disclosure, namely when in accordance with a court order, for the purposes of proceedings before a court, or is for preventing or investigating a crime.
- Page 55: The paragraph about accommodating those who cross-dress for an “emotional need” is worrying. Fair Play For Women has found some evidence in academic studies suggesting a higher than average prevalence of activities such as cross-dressing. There is not much research on the subject but one study that evaluated the incidence in the general population found that nearly 3% of males reported sexual arousal from cross-dressing. The incidence of transvestism in sexual offenders, however, has been found to be very much higher. In a study of over 500 sex offenders, it was observed that over half exhibited transsexualism and/or cross-dressing as their primary paraphilia. Paraphilias are atypical sexual interests in objects, situations, or individuals. Repeat offending is more likely among sex offenders who have paraphilias (see study here). Among serious sadistic offenders, transvestism and fetishism are strongly represented (studies here and here).
It is worth noting that according to a comparison of the data held by the Ministry of Justice of prisoners in 2019:
- 76 sex offenders out of 129 transwomen in prison = 58.9% (this is an underestimate as data on GRC holders is not collected)
- 125 sex offenders out of 3,812 women in prison = 3.3%
- 13,234 sex offenders out of 78,781 men in prison = 16.8%
This shows that males who claim to be women were over three times more likely to be convicted of a sex offence than other males. Either those males claiming to be transgender are more likely to be sex offenders or male sex offenders are using the protected characteristic of gender reassignment to make their lives easier. The case of Isla Bryson flagged up a noticeable prevalence of prisoners only discovering their transgender identity after being charged with a crime, leading to the First Minister’s statement that Bryson was “at it”. Either way, the feelings of the accused in the courtroom should not take precedence over the victim.
A fuller analysis against the recent census data is here and, although the smaller numbers cause larger deviations, the same trend is clear in Scotland.
- Page 56: Use of Language. “Any use of such language in anything other than this context, by anyone in court, should be restrained.” We’ve covered the importance of witnesses not being required to modify their language or compelled into an ideology they do not agree with. It is important to think of the effect on a jury as well and consider that it may be disinclined to believe anything a witness says if her evidence is tainted with misrepresentations of reality. Nor should court officials be using language such as “her penis”. Press reports repeat the language used in court so the traumatising effects can often continue beyond the courtroom. Gender neutral terms such as “they” may introduce confusion such as whether the victim was attacked by one person or several, therefore naming people or referring to “the accused” is preferable.
The section on cases on the “existence of a prejudiced attitude” is most likely referring to the Offences (Aggravation by Prejudice) (Scotland) Act 2009 which is due to be replaced shortly with the Hate Crime and Public Order (Scotland) Act 2021, the terms of which are different. Courts should be aware that this Act is likely to throw up cases regarding “misgendering” or “transphobia” for expressing gender critical views. It’s important that the judiciary is aware of the issues and the rights of all individuals involved.