“Expert witness” contradicted in LAVA vs Pride case

Professor Stephen Whittle. Source: BBC

The United Kingdom Supreme Court decision in April, which determined that the word “woman” in Britain’s Equality Act 2010 means biological woman, had nothing whatsoever to do with access to services, Professor Stephen Whittle told the Human Rights Review Tribunal (HRRT) in Wellington.

The judgment specifically said that trans-identifying men do not qualify to access women-only services.

Whittle, who is professor of equalities law at Manchester Metropolitan University, was presented by the Wellington Pride Festival Incorporated as an expert witness on gender-critical groups in the UK (those who say humans cannot change sex) and on developments since that Supreme Court judgment.

Pride is defending itself against an action brought by two members of Lesbian Action for Visability Aotearoa (LAVA), Hillary Oxley and Margaret Curnow, after their booking for a stall at an Out in the City event in March 2021 was cancelled, essentially because LAVA doesn’t accept that lesbians can have penises.

After Whittle’s assertion, the barrister acting for LAVA, Nicolette Levy, KC, then pointed to sections of the UK decision that detailed the direct impact on the provision of services that the judgment has had, contradicting Whittle.

For example, the judgment expressly said that people accessing medical services can require that the medical practitioner be of a specified biological sex, insurance companies can base premiums charged on the biological sex of the person seeking to be insured, and that lesbian clubs and associations can restrict membership/attendance at events to biological women.

Other restricted services

Other services, such as counselling for rape victims or victims of domestic violence can be restricted to biological women, as can homeless hostels and segregated swimming areas, and screening services for cervical cancer can be restricted to biological women while services relating to prostate cancer can be restricted to biological men.

Only biological women have cervixes and only biological men have prostate glands.

Whittle is a biological woman who has lived as a man since 1974 and holds a gender recognition certificate stating that she is a man - she ackowledged to the tribunal that she does not have a prostate gland.

She is trans rights campaigner and a former president of The World Professional Association for Transgender Health (WPATH), an organisation which promotes providing puberty blockers – the same drugs used to chemically castrate male sex offenders – cross-sex hormones and other treatments, including surgery to remove otherwise healthy body parts, for children diagnosed with gender dysphoria.

Britain has banned the provision of puberty blockers to children with the exception of children who enter puberty much earlier than usual.

Leaked WPATH files released publicly in March 2024 revealed that doctors treating such children know that the children are not capable of giving informed consent to such treatments, which risk sterilizing and castrating these children.

Whittle told the HRRT that she agreed with comments on the decision by Lady Brenda Hale, who had been president of the Supreme Court until she retired in 2020.

A “misinterpreted judgment?

Hale was reported by The Independent newspaper as saying that the decision has been “misinterpreted” and there were plenty of things to “quarrel with” about the judgment.

“There’s nothing in that judgment that says that you can’t have gender-neutral loos – as we have here in this festival... despite the fact that there are people saying that you can’t do that,” Hale told The Independent.

Hale was correct that the judgment doesn’t ban gender-neutral toilets.

“It’s for other people to work out the other parts of the Equality Act, which permit but do not require services to be provided differently for people according to sex.”

Whittle, like Hale, complained that the Supreme Court had not defined what the word “biological” means.

The Independent quoted Hale as saying: “I was with some doctors last week who said there is no such thing as biological sex.”

Levy quoted a newspaper report in which Lord Patrick Hodge, who was the spokesperson for the five-judge panel which delivered the unanimous judgment, acknowledged that the decision had upset trans-identified people who had been led by public authorities for the last 15 years to believe they had rights which they don’t actually have.

Whittle acknowledged that organisations such as Stonewall, an organization founded to advocate for the rights of gay men and lesbians and which began promoting the rights of trans people from about 2014, had probably been wrong if they told employers that their employees had the right to use whichever toilets, male or female, they felt comfortable accessing.

She said she didn’t know the actual wording that groups such as Stonewall had used in their advice to employers.

Biological women only

The Supreme Court decision made it clear that only biological women can access women-only toilets and changing rooms in Britain.

Whittle correctly pointed out that the decision also went out of its way to stipulate that trans people continue to have human rights.

Hodge has said that nothing in the judgment provides anyone with the right to discriminate against trans-identified people.

Whittle and a trans-identified man who is a retired judge, Victoria McCloud, and an organisation known as the Good Law Project, had sought to intervene in the Supreme Court case, which had been brought by For Women Scotland, but were refused.

Levy asked Whittle whether the Scottish government, which had been defending its right to count trans-identifying men as women to satisfy legislated quotas for sex balance on boards, and Amnesty International, which had been given leave to intervene, had adequately represented the interests of trans people.

Whittle said the Scottish government had not and that Amnesty International had only partly represented those interests.

Amnesty had supported the Scottish government’s right to count trans-identifying men as women, claiming that legal recognition of trans people being their chosen gender was a human right essential for trans individuals’ safety and dignity.

Whittle had argued that British law had always provided exceptions that allowed discrimination on the basis of biological sex – while he is correct about that, and the Supreme Court decision clarified that is the case, it had been widely believed that, for example, trans-identifying men were legally able to access women-only facilities, a message that organisations such as Stonewall had promoted.

The Good Law Project is currently campaigning to persuade businesses, notably health club chain Virgin Active, to break the law and allow trans-identifying men in women-only facilities.

For those interested, the UK Supreme Court’s decision is here: https://supremecourt.uk/cases/uksc-2024-0042

NOTE: On Monday, I was ordered by the Human Rights Tribunal to move from the media table to the public benches of the courtroom on the grounds that I am not “an accredited journalist.” The legal grounds cited were section 198 of the Criminal Procedure Act 2011. However, the HRRT is not a criminal court and the matter before it is not a criminal case, so I therefore consider use of this Act to prevent me from reporting on this proceeding to be invalid.

The HRRT’s suppression order specifically excludes reporting by “accredited media” (meaning such media are still able to report proceedings). I have sought legal advice on the meaning of “accredited.” My understanding is that it has a general and vernacular meaning that would extend to me because of my professional standing. Blogger Cam Slater was held by the High Court in 2014 to be within a definition with a comparable purpose. Since I am a recognised journalist of more than 40-years’ experience, including much court reporting, and owning a paid subscriber publication, I believe the HRRT order cannot prevent me from reporting its proceedings. Of course, if the HRRT were to include all media in its suppression order, that would change. I did abide by the HRRT’s discriminatory ban on note-taking by those on the public benches, so I have not been able to provide actual quotes from Professor Whittle’s testimony.