When Lawyers Give Legal Advice That Ignores Real People

An employment lawyer advises clients that the only legally safe option after the Supreme Court ruling is to exclude trans people from single-sex spaces, always. I want to talk about what that actually means for real people, and why legal risk and human harm are never the same thing.

Dr Helen Webberley
– 2 min read

I want to respond to this LinkedIn post from employment lawyer Naomi Cunningham, who attended an Employment Lawyers Association session on the implications of the For Women Scotland Supreme Court ruling for single-sex spaces. She is disappointed that speakers were looking for trans-inclusive approaches, and she offers what she describes as the only legally risk-free option: exclude everyone of the opposite biological sex, always. I want to be clear about what this advice actually means in practice. It means telling organisations to turn away trans people from spaces and services they rely on for their safety and dignity, and to do so with confidence, as though that confidence somehow addresses the human cost. Legal risk and human harm are not the same thing, and lawyers who advise only on the former while ignoring the latter are doing their clients, and society, a disservice. The law exists to protect people. When legal advice is used as a tool to exclude the most vulnerable, we have to ask who the law is actually serving.

ELA's Webinar on Discrimination in Goods and Services: Single-Sex Provision Risks | Naomi Cunningham posted on the topic | LinkedIn
I attended Employment Lawyers Association (ELA)’s webinar on Discrimination in Goods and Services today. Quite a bit of the session was about the implications of For Women Scotland v Scottish Ministers for single-sex spaces and services. I would have hoped for an impartial overview of recent legal developments from ELA. Instead, speakers seemed to be apologising for the effect of the ruling of the Supreme Court, and looking for “trans inclusive” ways around it. Dismayingly, suggestions included simply abolishing single-sex provision altogether. So a short public service announcement for lawyers advising in this area. There is one and only one legally risk-free way of running single-sex services or spaces, and that is to exclude everyone of the opposite (biological) sex from them, always. If single-sex provision is justified at all, then a blanket rule is not merely permissible, but almost certainly mandatory. Note too that where single-sex provision is commonplace, there’s probably a good reason for it. Withdrawing it will almost always bear more harshly on women than men, so even though the single-sex exceptions are mostly permissive in form, think hard before you withdraw them. Can you justify doing so as a proportionate means of achieving a legitimate aim? So your clients have a three-way choice. Withdraw single-sex provision, and risk indirect discrimination claims from women. Operate “trans-inclusive” single-sex provision, and risk harassment and indirect discrimination claims from women and direct discrimination claims from those men who don’t say they are women. Or operate single-sex provision on the basis of biological sex, and be confident of being within the law. Lawyers are usually risk-averse, so it was surprising not to hear this clear message from ELA. | 44 comments on LinkedIn
LinkedInNaomi Cunningham
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