Blog Post

It’s not just in Hollywood!

  • By Jonathan HADLOW
  • 11 Oct, 2017

Harvey Weinstein is used to being the centre of attention – but this week the movie mogul finds himself on all the front pages for all the wrong reasons. It seems ‘everyone knew what he was like’, but until now nobody dared to say anything. But the flood gates have opened and now allegations of sexual harassment abound. Like anyone else, Mr Weinstein is of course innocent until proven guilty, but he certainly wouldn’t be the first person to use a powerful position to bully, intimidate, harass and abuse. 

Unfortunately such behaviour isn’t limited to Hollywood; it’s all too common in the workplace in the UK. Men as well as women are subject to bullying and abuse, which may be verbal, physical or sexual. People are insulted or treated unfairly on grounds of gender, race, sexual orientation, disability, age or any number of other characteristics. Inevitably such behaviour often goes unreported – victims feel powerless and vulnerable as, typically, bullies are in a position of seniority or power over them.

Let’s hope that the Weinstein case proves to be a call to action. We all need to speak out, not only if we are victims ourselves, but also – perhaps especially - if we are part of that group of ‘everyone’ (‘everyone knows what he’s like’). We can’t turn a blind eye any longer.

Lawyers have an important role to play. Victims of bullying and harassment have legal remedies; people who are unfairly dismissed or discriminated against have legal rights to redress; whistle-blowers have a right to legal protection. DSD’s specialist employment team can advise, assist and act to protect anyone who has experienced problems in the workplace.

Lawyers can also help to avoid such problems occurring at all. They can advise employers to put in place the right policies, procedures and training to ensure that all employees’ rights are safeguarded.

In the 21st century, we cannot accept bullying and abuse in the workplace any more. Better late than never, Mr Weinstein is beginning to learn that such behaviour is not OK and, in the end, even the most powerful have to answer for their actions.

By Jonathan HADLOW 04 Feb, 2022

This blog has previously looked at the long saga of the so-called ‘gay cake’. As a quick reminder, this was the story of a cake ordered from a bakery in Northern Ireland. The order specified that the cake was to be decorated with the slogan ‘Support Gay Marriage’. Initially the order was accepted but it was subsequently rejected as being contrary to the bakery owners’ Christian principles. The money was returned and the cake was made elsewhere.

The law prevents discrimination in the provision of goods and services on the basis of (among other things) sexual orientation. The question was: did the bakery refuse to provide the cake because of the customer’s sexuality?

The case went all the way to the Supreme Court in the UK, where the application was rejected. Essentially the judges found that the order was refused because of the message not the customer; it would have been refused no matter who the customer was and whatever his/her sexuality or other characteristics.

The Supreme Court is the last court of appeal in the UK. But the case raised questions of human rights. The European Convention on Human Rights includes protection for freedom of thought, conscience and religion (article 9), freedom of expression (article 10) and the right to respect for private and family life (article 8 which includes identity issues) and it also contains a provision preventing discrimination in the enjoyment of those rights (article 14).

So the appellant tried to take the case to the European Court on Human Rights arguing that the Supreme Court’s decision violated his rights under articles 8, 9 and 10 as well as being discriminatory under article 14. The case was decided on 6th January over 8 years after the famous cake was ordered.

Finally the case ended as a bit of a damp squib. Instead of a full hearing applying the full weight of European jurisprudence to the issues, the case was thrown out on a technical point. The applicant had not explicitly invoked his Convention rights at any time during the UK court proceedings. The European court decided that it was axiomatic rights should be invoked expressly in domestic proceedings. Not doing so deprived the domestic courts of the opportunity to consider the issue and the European judges were not about to usurp the role of the UK courts by considering a question not raised before.

This case has now run its course, but it is safe to say that it is not the end of litigation concerning alleged discrimination in the provision of goods and services, nor will it be the end of the long history of litigation relating to cakes, biscuits and other baked goods.

By Jonathan HADLOW 04 Feb, 2022

The news at the end of 2021 was sadly filled with terrible details of the deaths of two small children Star Hobson and Arthur Labinjo-Hughes. The cases are unquestionably appalling and distressing and have unsurprisingly prompted public and media outcries.

It is important to reserve judgment until all of the facts have been properly investigated. We should also keep in mind that these cases are just two of the child deaths which occurred in 2021, most of which we have heard nothing about – shockingly, according to the NSPCC on average at least one child dies every week through abuse or neglect. Why some children’s names hit the news while others are ignored is a mystery; all are equally distressing and should be of equal concern. The majority of the public, if asked, probably believe that Star and Arthur are the first children to die in such circumstances since ‘Baby P’; instead of which there have been literally hundreds of lives cut short in appalling circumstances. And this is not to mention the many, many more children who suffer serious, if non-fatal, abuse and neglect.

The court of public opinion and the media are always quick to point the finger of blame, usually at social workers and other professionals charged with child protection. Once circumstances are fully investigated we may find that there were indeed failings in these cases, but perhaps before rushing to judgment we should consider the following:

(i) social workers and other professionals involved did not kill these children. Responsibility lies with the people who landed the fatal blows. The vast majority of people who choose to work in child protection do so because they sincerely want to make a difference and are – at least early in their careers before they become exhausted and jaded – caring, committed people. No-one will be feeling worse about these dreadful cases than the professionals involved.

(ii) child protection is difficult, complex and sensitive. Everything is easy with hindsight, all seems obvious when you already know the outcome. It’s like watching a murder mystery a second time when you already know whodunnit and aren’t fooled by the red herrings and plot twists. It’s not so easy first time round. Working with real people, who may be malicious, devious, threatening and manipulative is tough. Anyone who has worked in child protection has at some stage been mistaken one way or another in a judgment about a case or a client. Unfortunately in this line of work mistakes can be fatal.

(iii) unless professionals are reckless or negligent to a criminal degree, we gain nothing by blaming individuals and calling for heads to roll. If the system is to improve and lessons are to be learned a new blame-free culture needs to be adopted, as in aviation. Otherwise, we will continue to lurch from one tragedy to the next.

(iv) child protection is thankless task. The public and media rarely hear of cases where children are saved from abuse or families are successfully helped to resolve their problems. Media attention is constantly critical – either the system is damned for removing children needlessly from loving homes and for hurling dreadful unfounded accusations at innocent parents, or it is damned for failing to protect children who go on to be harmed. Damned if they do, damned if they don’t.

(v) in terms of political profile and budget allocation, child protection is a very low priority and is ignored except when a tragedy happens. Social work is a profession held in low public esteem - no-one calls social workers heroes. No-one goes onto their doorstep to clap for social workers who are instead regarded as interfering busybodies or negligent incompetents. Neither is the social work profession well paid - social workers earn only the average national salary despite enormous responsibilities. Child protection teams are often overworked, overloaded and over stressed. Burn out leads to high staff turnover, cases are left unallocated or piled onto already overloaded staff. No wonder practice is imperfect.

In other related professions too – family care workers, health visitors and youth workers to name but a few - children and family services are undervalued. Even in the law, child protection lawyers are part of the over-stressed and under-resourced Legal Aid system, far from the high esteem and astronomical salaries of City lawyers working on tax law or mergers and acquisitions, cases where no-one dies if you get it wrong.

Budgets have been cut for local authorities, early years projects, health visiting services, mental health services, family Legal Aid … the list could go on… the whole picture is one of a system which has been neglected and which only gains attention when something dreadful happens, and then only to be slammed with criticism for failure.

Is it just a coincidence that typically professions and specialisms dealing with children and families, disabled people, elderly people and other vulnerable sections of society were and to a large extent still are female-dominated? Whereas professions held in high esteem with matching high salaries – things like corporate law, City finance, merchant banking and management consultancy - are male-dominated? Could there possibly be an element of institutional sexism underlying the issue?

Imagine a society where child protection was a political and budgetary priority and where the brightest and best aspired to become social workers, competing to work with the young and vulnerable because those were the professions held in the highest esteem and most generously rewarded.  Perhaps then outcomes might be different.

We need not only serious, dispassionate, open and honest investigations into what happened in the latest tragic individual cases, but also a systemic analysis of how we manage child protection and how we can improve. We need a serious discussion as a society as to how much we are prepared to pay to keep children safe, and how much we truly value the most vulnerable in our society.

Until then, the sad truth is that Star and Arthur may be the latest names to add to a long and tragic list, but they will not be the last.

By Jonathan HADLOW 25 Jan, 2022

This blog has considered the ever-changing world of gender and identity. In the latest case involving identity questions, the Supreme Court recently considered the question of passports. Should we be classified by our passports using only the binary system of male or female?

The appellant was categorised as female at birth but at puberty felt revulsion at having a female body, and later underwent surgery including a double mastectomy and a hysterectomy. This was treatment for gender dysphoria but was not gender reassignment surgery – many women have mastectomies and hysterectomies and do not cease to be women.

The appellant now identifies as non-gendered but remains female for legal and administrative purposes in spite of the physical changes wrought by surgery. The appellant campaigns for legal and social recognition of a third ‘non-gendered’ category of people to go along with male and female.

The case before the court concerned one aspect of the campaign, namely a claim that passports should have a third option, rather than the just the current binary categories of male or female, arguing that there should be the choice of M, F or X. This option does exist in some other countries and is approved by ICAO (the International Civil Aviation Organisation).

The application was framed in terms of human rights, including Article 8 of the European Convention of Human Rights, alone or in conjunction with Article 14. Article 8 refers to the right to respect for private and family life and has previously been held to include issues of identity. Indeed, there was no dispute between the parties that self-identifying as non-gendered did constitute an aspect of private life and therefore could fall within Article 8. Article 14 refers to non-discrimination in the delivery of Convention rights. Our own Human Rights Act was also cited in the appeal.

The Supreme Court was careful to draw a distinction between non-gendered and transgender. Transgender people are those who have acquired a new gender by virtue of the Gender Recognition Act are recognised by law and by the passport agency in their new gender (different from that allocated at birth) and are therefore within the binary classification as either male or female and are not non-gendered.

There is no legislation in the UK which recognises a third category of non-gender: all of our legal framework is based on the assumption that we are all either male or female. Births are recorded and birth certificates issued defining us as one or the other and from that point on, legal and administrative procedures work on the basis that we are in one of the two categories. The binary system is consistent and coherent in itself; suggesting that it should be changed goes far beyond the issue of passports and the court held that the state having a consistent system is a relevant factor to take into account.

European Human Rights jurisprudence includes the concept of the ‘margin of appreciation’, which can be broadly paraphrased as room for discretion or leeway. This means that there are some things that are non-negotiable but there are other issues where States have room to decide for themselves, particularly where there is a lack of consensus among States in matters raising moral or ethical issues.

While the Supreme Court recognised that a non-gendered identity was an important aspect of the appellant’s private life, the case before the court only concerned the issue of categorisation in a passport, which did not constitute an important aspect of that identity and did not cause a high degree of harm or prejudice to the applicant. There is no policy consensus within signatory states and a range of approaches is acceptable, so there is a broad margin of appreciation, meaning that the UK can decide its own policy. The public interest considerations in maintaining a coherent system were held to outweigh the appellant’s own interests in having an X passport.

So the Supreme Court rejected the application and decided that, at least as far as passports are concerned, in UK law there are only the two traditional genders of male and female. Of course as the case concerns human rights, the applicant may have the right to take the issue on to the European Court of Human Rights in Strasbourg (unless of course reform of human rights law removes that option). One of the characteristics of human rights jurisprudence is that it changes over time. Issues can move from being within the margin of appreciation to being firm rights and over time the same question can be answered in different ways as social and moral views evolve. Nothing is set in stone, so while the Supreme Court’s judgment determines our law for the time being, this aspect of society is changing fast and in the future it is perfectly conceivable that things may change.

By Jonathan HADLOW 25 Jan, 2022

The government has launched a consultation on reform of the Human Rights Act 1998 (in force since 2000). The HRA brought into UK domestic law the European Convention on Human Rights (ECHR), to which the UK has been a signatory since the 1950s.

At the time of its implementation, the political slogan used to promote the HRA was ‘bring rights home’, which could sound distinctly Brexity. The current rhetoric sounds even more Brexity, along the lines of taking back control as one of Dominic Raab’s concerns apparently is that the supremacy of the UK Supreme Court is being undermined by the European Court of Human Rights. His proposal is to introduce a Bill of Rights focusing on what he describes as 'quintessentially British traditions’, such as freedom of speech and the right to trial by jury. Quite what makes these particular rights peculiarly British is unclear.

Just to clarify, the ECHR has nothing to do with the European Union. In fact it goes far wider than that, with the 47 countries of the Council of Europe all being signatories. Much of the Convention was drafted in the first place by British lawyers and British judges sit on the European Court of Human Rights. There is no suggestion of withdrawing the UK from the ECHR, so those rights will continue to apply. Presumably the jurisdiction of the European Court of Human Rights will also continue to apply to adjudicating those rights once domestic remedies have been exhausted, so at first glance it appears that the government is proposing a new, additional and parallel set of rights.

The real concern prompting the government’s proposals is not the text of the Convention but its interpretation by the UK courts, taking into account jurisprudence from Strasbourg. It seems that the government has been concerned by cases, allegedly including the Meghan Markle vs Daily Mail case, which seem to adjust the balance between press freedom and private life (always a difficult balance to strike), and in particular cases in which deportations have been prevented by citing the right to family life. These are the ‘lefty lawyer’ cases which have caused fury in government circles.

In any aspect of law, it is always possible to find cases which appear aberrant or contrary to common sense. Dominic Raab says that ‘one of the consistent complaints we hear from the public is that human rights can be subject to abuse’. However, we have to ask how well informed the general public is about human rights law in general, and to bear in mind that the cases reported in the media tend by definition to be the exceptional ones which fit with the political agenda of the media outlet concerned. The old adage that ‘hard cases make bad law’ holds good.

Lord Wolfson, a serious and top level lawyer who is now Under Secretary of State for Justice has written that the problem lies not with the Convention but the way it has been interpreted by the European Court (and let’s not forget, UK judges form part of that court). He writes: ‘The text of the ECHR is not contentious – what has led to debate is the way the text has been interpreted by the Strasbourg court, which does not seek to ascertain the meaning it had when signed, but rather construes it as a 'living instrument'.’

That principle of interpretation of the Convention as a living, evolving set of principles is seen by many human rights lawyers as part of the strength and continuing validity of the Convention. Imagine if we continued to apply the principles of the 1950s to legal decision making today. When the Convention was signed, women had no rights to equal opportunities or equal pay, racial discrimination was practically the norm, and homosexuality was illegal – is that how we want human rights to be judged in the 21st century? There are surely good reasons why courts don’t seek to ‘ascertain the meaning it had when signed’.

Lord Wolfson went on to write: ‘Just as political decisions must be made by politicians, not judges, so too, binding judicial interpretations should be made by common law judges. We have the best judges and courts in the world – so rather than Strasbourg having the final say on the application of human rights in the UK context, we think it should be the UK Supreme Court and our highest-ranking judges who should be the ultimate judicial arbiters.’

The assertion that we have the best judges and courts in the world is made without evidence and based on no objective criteria. OK, our courts and judges have much to commend them, but can we really claim to be objectively the best in the whole world? And even if we could, should we?  Claiming that ‘we are the best’ allows no criticism or acknowledgement of the need – or indeed room - for improvement. It is a demonstration of just the sort of arrogance which highlights precisely why we need external, international standards and safeguards.

Responding to the initial announcement, Law Society president Stephanie Boyce said: 'People from all walks of life rely on the Human Rights Act to uphold and protect their rights. Any reform of this subtle and carefully crafted legal instrument should be led by evidence – not driven by political rhetoric.

'The powers government purports to introduce for the most part already exist: British judges deliver British justice based on British laws, looking closely at how judgments fit into the national context, and disapplying them if there is good reason to do so. UK courts do not, as government suggests, "blindly" follow case law from the European Court of Human Rights.

'Equally, foreign criminals already can be deported in the public interest even where there are arguments against this from the right to family life. Every case is different, making it necessary to weigh each on its own particulars. Talk of restricting rights is dangerous and does not reflect the nuanced job the courts have to do.

'We expect the government’s more detailed proposals to be informed and framed by the year-long independent review it commissioned. We trust that government’s final proposals will preserve the UK’s deserved reputation as a global leader in upholding human rights both domestically and on the international stage.'

By Jonathan HADLOW 17 Jan, 2022

The practice of law is a question of team work. The effective delivery of legal services depends not only on the expertise and efficiency of the lawyer and support staff, but also on the client.

If you are a client of a law firm, you can play your part in giving your legal advisers the best chance of doing a good job for you.

Here are some suggested New Year’s Resolutions to adopt if you want to be your lawyer’s dream client:

1. Always note down dates and times of appointments, court hearings and deadlines. Making sure you know where you are expected to be, when and why, whether meetings are face to face or remote and always show up on time. If you are unable to attend or are going to be late, please let us know.

2. Make sure you understand the purpose and objectives of any meetings or hearings and what your role is, so that you can prepare properly for them.

3. If you don’t know or don’t understand anything, just ask. There is no such thing as a stupid question! We know that sometimes we slip into jargon without realising it and that we can forget to explain things clearly. Because our legal world is so familiar to us, we can forget that it can be an alien and intimidating place to our clients. We don’t mean to be obscure! But if you don’t say when something isn’t clear, we assume that you have understood.

4. Tell us anything that might have any relevance to your case or your situation, even if you think it is unimportant. We rely on you for information – we don’t know if you don’t tell us, and something apparently trivial could be the missing piece of the jigsaw which makes everything fall into place.

5. Tell us anything that might have any relevance to your case or your situation, even if it is awkward or embarrassing. Some areas of law, such as divorce cases, can involve discussing personal details which are intimate and not the sort of thing you usually tell strangers. But lawyers are like doctors in that respect, it is part of our professional business and whatever you tell us, it is unlikely to be the first or the worst, we keep your personal information confidential and we don’t judge. Besides which we can’t do our jobs if you don’t tell us. Please don’t lie or miss things out, for example because you’ve done something you’re ashamed of – we’d much rather hear it from you than have it turn up as a nasty surprise in the middle of a hearing!

6. Prepare before you come to an appointment or a hearing. Think through what it is that you want to say or to ask. Unfortunately in the legal world time is money and the better you prepare, the more efficiently and economically things go. Write down questions or information as they occur to you. It can also be very useful to make notes of anything relevant that happens between appointments. So-called ‘contemporaneous notes’ can have greater evidential weight than recollections long after the event, so jotting down dates and times when your partner failed to attend contact with your child, or the precise words of the abusive phone call from your drunken ex will help save time preparing evidence. Bring along to your appointment any relevant documents, such as the final written warning your employer sent you, or the written agreement drawn up with the social worker allocated to your child’s case. Let your lawyer know about anyone who might be able to support your case or be a helpful witness, such as a colleague who heard your boss use racist or sexist language towards you. Of course it may be that your lawyer cannot use all the information you provide, in which case s/he will explain why, but in general the more you prepare the more you save us time and the more you help us advise you.

7. Tell us about any special needs or particular issues you have, from physical disabilities perhaps meaning you have accessibility needs, or hearing or visual impairments requiring us to adapt our communication methods, to mental health issues which might mean that you need particular support, to learning difficulties or educational issues such as difficulty reading, to language needs requiring interpreters. Or you may have practical issues such as caring responsibilities which affect your availability for appointments. Help us to help you. Let us know in advance and we can arrange necessary provision, whereas if you just tell us on the day we may not be ready and time might be wasted.

8. Please do what we ask. There is always a reason why we ask you to do – or not to do - something. We have to work together and we can’t help you if you work against us. Always obey court orders, even if you are unhappy about them. Court orders are not optional!

9. Please try to stay calm and reasonable. We appreciate that legal issues are stressful for everyone and some cases we deal with are particularly sensitive and painful. We know that this can mean that on occasions emotions can get the better of some clients. We understand, but it doesn’t help anyone, and of course we cannot accept aggressive or abusive behaviour.

10. If you’re unhappy tell us. If it is within our control, we will do our best to do something about it. But we can’t change things if we don’t know there is anything wrong. Little is more frustrating than finding that someone who said nothing at the time later complains or, worse still, makes negative comment on social media. Equally, if you’re happy please say so. Believe it or not, lawyers are human too and it can make our day if someone expresses appreciation for a job well done!

Let’s hope that in 2022 we can all work together efficiently and successfully.

By Jonathan HADLOW 05 Jan, 2022

It’s traditional at the start of a New Year to make predictions about the coming year. Never mind that they are usually hopelessly wrong – who predicted Covid and lockdown a couple of years ago? And who (like me) thought last year that by now we would be pretty much back to normal? But the habit is too hard to break so, with no great confidence, here goes.

Covid continues - Covid isn’t going anywhere anytime soon. Sadly. Continued working from home and remote meetings and hearings are likely to be the order of the day for some time to come. It would be nice to think that we could find the silver lining in the cloud and learn what works well remotely, which we could keep even in a post-Covid world, and which elements really need to revert to the old-fashioned face to face way of doing things. If something good is to come out of this experience, it could be finding ways to use time and technology more efficiently without compromising on standards.

Work practices - While on the Covid theme, office culture seems likely to change for good. Working from home at least part time is hard for employers to resist when employees have been obliged to do so full time for so long. Flexible working, so long a promised virtue of technology, may become a reality. However, we have also understood how irreplaceable real life face to face contact is, so finding the right balance will be the new challenge for the workplace. In the office, we can hope that newly acquired good hygiene habits will be retained, so that colleagues and clients who have streaming colds but aren’t sick enough to stay away will choose to wear masks out of courtesy and no-one will think them weird for doing so (as we would have pre-Covid). Hand gel is likely to remain ever-present. And maybe we can continue to escape the generally dire experience of office Christmas parties!

Covid restrictions will likely continue to raise legal questions too in the field of employment law, human rights law and criminal law. There could be more challenges to restrictions and to penalties imposed for breaches, given media publicity of apparent double standards among our political leaders.

Gender identity issues – away from the Covid theme, this blog has highlighted some of the questions raised in recent cases concerning gender identity. The cases so far are just the tip of the iceberg and courts will continue to have to grapple with and society adapt to more thorny issues in the next year.

Human rights will be a hot political and legal topic with Dominic Raab’s proposal to replace the Human Rights Act with a new ‘British’ version coming up for consideration in March after the end of the current consultation period.

The slow-burning crisis in the legal system including long court waiting lists, low morale among judges, lack of access to justice, ever-increasing numbers of litigants in person, ever greater reliance on pro bono services and so on will continue unabated and unaddressed, except for a push towards alternative remedies to avoid the problem rather than address it. But compared to the NHS, the legal system is hardly a high-profile issue, so we’ll struggle on regardless…

And this time next year, if the fates allow, we’ll be back to see how all the above were wrong and how we found ourselves tackling a whole set of unpredicted and unpredictable challenges!

By Jonathan HADLOW 22 Dec, 2021

What would I like for Christmas?

Apart from the obvious Covid-related issues, what would I like for Christmas?

Maybe a restoration of family Legal Aid would be nice? Not only would that allow access to legal advice and justice to everyone regardless of means, but it would also go a long way towards reducing court queues and increasing the efficiency of the family courts.

If there has to be a review of the Human Rights Act, please could it be undertaken from the starting point that human rights are important and that individuals should be entitled to enforce them even to the frustration and inconvenience of governments?

Is it too much to ask for a Justice Secretary who actually believes in social justice?

Media who respect the importance of an independent judiciary would be lovely too, even respecting judiciary who make decisions contrary to the political stance of the media outlet concerned.

And can I also ask for an end to the media presumption that all lawyers are fat cats only out for themselves, please!

Could Santa please also have a word with social media companies to make them take responsibility and introduce measures to prevent the misuse and corruption of their services?

Money is always a very welcome Christmas gift, so some resources devoted to problems underlying so many domestic violence and child protection cases would be the best gift ever. Alcohol, drug and mental health problems lie at the root of so many cases and so much misery, and we all know that resources are quite simply inadequate. It would be a real investment in the future.

While I’m at it, more early years children’s services, support and advice for parents and families as well as support for children in need and young people would go some way to restoring the original balance of the Children Act to emphasise support and prevention of harm, reducing the need for reliance on emergency and compulsory intervention.

Sadly, Christmas isn’t always a season of comfort and joy. It can bring all sorts of problems to a head, often aided by excess alcohol and the sharp contrast between our real lives and the idealised Christmases we see all around us. Domestic disputes and violence, child neglect and abuse, mental health crises are unfortunately all too common at this time of year.

The best Christmas gift would be if family lawyers didn’t have their customary extra workload in January…. Or even if child protection lawyers one day had to be re-deployed for lack of work.

Maybe I’m a bit too greedy with my Christmas list.  But it’s the season when we are allowed to dream….

May we all have a peaceful Christmas and a happier, healthier New Year.

By Jonathan HADLOW 17 Dec, 2021

This blog has recently considered the case involving the Tavistock clinic and the issue of gender re-assignment. Issues of gender, identity, sexuality and the terminology associated with them seem to be ever more complicated, especially for those of us of a certain age for whom much of this is new.  We can find ourselves treading on eggshells and walking into a minefield, if such mixed metaphors can be permitted. Perhaps it could be useful to consider what the terminology we hear refers to.

Life (at least superficially) used to be simple. At birth the cry went up ‘it’s a boy!’ or ‘it’s a girl!’ and that was that. The child was thereafter dressed and educated as one or the other, behaved according to the accepted stereotypes, married someone of the opposite gender. All seemed straightforward, except for those people (generally regarded as eccentric or unfortunate) who didn’t fit into those norms. Things have moved on a long way since then, and recently it seems that we need to get to grips with more and more complex ideas. Here is my idiot’s guide.

Sex

Let’s start with sex (a sentence which I hope will not be misunderstood!). This is the simplest concept, and generally refers to biological sex based on observation of the newborn’s genitals. Somewhat irreverently I can’t help but remember Nursie’s wonderful description of the birth of Queenie in Blackadder 2:

‘Out you popped and everyone’s shouting: “It’s a boy, it’s a boy!” And somebody said: “But it hasn’t got a winkle!” And I said: “God be praised, it’s a miracle. A boy without a winkle!” And then Sir Thomas More pointed out that a boy without a winkle is a girl. Everyone was really disappointed.’

As well as genitals, there are the internal sex organs. In addition, sex is based on chromosomes. Every cell in our bodies has 23 pairs of chromosomes. 22 of them are the same for both males and females but the 23rd pair is different: generally females have two X chromosomes and males have one X and one Y chromosome. So just one chromosome out of 46 is usually different and – at least until recently – determined our whole lives.

Hormones also play a part in contributing to biological sex and again we have become aware recently that simple definitions don’t always work – just look at the case of female athletes found to have naturally occurring levels of testosterone higher than the average woman who are now required to take medication to lower those levels if they want to compete as women.

Some people are ‘intersex’, meaning that they have anatomy or genes that don’t fit typical definitions of male and female. Most intersex people are allocated one sex or the other at birth and identify as either men or women.

The terms generally used to describe biological sex are male, female or intersex.

Sexual orientation

This refers to attraction to others, most particularly in physical and sexual terms.

Now we need to get out our Latin and Greek dictionaries.  But the ancients cause us some confusion as the prefix ‘homo’ from the Greek, means the same, equal or like (just as for homogenised milk) whereas in Latin ‘homo’ means man (more politically correctly ‘human’) as in homo sapiens. In ‘homosexual’ we need to look to the Greeks, so it means attraction to the same sex and is nothing to do with men, thus it is perfectly possible linguistically to have a female homosexual. We also have the Greeks to thank for the term ‘lesbian’ which comes from the Greek island of Lesbos and the ancient poet Sappho who apparently wrote about her attraction to female beauty.

‘Hetero’ is the Greek for ‘other’ or ‘different’, thus ‘heterosexual’ is used for people attracted to someone who is not the same as themselves.

But there are more than two categories of sexual attraction. As well as homosexual (or ‘gay’), and heterosexual (or ‘straight’) other people refer to themselves as bisexual. Thanks go this time to the Romans for the Latin prefix ‘bi’ meaning two or twice (bicycle, binary, bilateral). So bisexual means attracted to people of both traditional sexes. But as this implies two sexes and not everyone accepts this binary division, some people now refer to themselves as ‘pansexual’. Back to the Greeks for this prefix – ‘pan’ meaning all, every or whole (pandemic anyone?). Pansexual people are attracted to others of any gender.

Yet other people consider themselves to be ‘asexual’ – another point to the Greeks for the prefix ‘a’ meaning ‘not’ (atheist, aseptic, amoral). This means that these people consider that they are without sexual feelings or desires.

Gender

We often use the terms sex and gender interchangeably in normal language. However, there is a difference.

The World Health Organisation no less defines sex as being biologically defined whereas gender is a social construct including five important elements: relational, hierarchical, historical, contextual and institutional.

It might be helpful to think as sex as male or female and gender as masculine or feminine.

Gender identity

This term is used to refer to how we think about ourselves, which may not be the same as our assigned biological sex or socially assigned gender.

Some people identify as women or men, while some reject the concept of a binary distinction. Different terms are used, including ‘non-binary’, ‘agendered’ or ‘non-gendered’. They may be physically and biologically of one identifiable sex but do not identify with traditional gender distinctions.

This leads to linguistic challenges. Our language is predicated on a binary approach – ‘he’ and ‘she’ are clearly gendered pronouns. The law always worked on an assumption that the masculine includes the feminine unless otherwise stated, so ‘he’ to a lawyer includes ‘she’ as well as the plural. He/she is clumsy. S/he is not much better and only works in writing – it is impossible to pronounce. Many people adopt ‘they’ but grammatically it is uncomfortable – it’s a plural pronoun and doesn’t easily adapt to the singular. Language evolves over time and perhaps in due course we will develop a suitably gender neutral pronoun which will work for everyone, but we are not there yet.

Other more practical problems relate to toilets and activities usually divided between men and women.

Gender expression is related to but not the same as gender identity. It refers to how someone expresses him/her/them self/ves (see? That’s why we need new pronouns!) in terms of dress and behaviour, ranging from the societal expectations of feminine to the masculine via the androgynous (thanks again to the ancient Greeks – ‘andro’ means man and gyne – as in gynaecology etc – means woman).

Trans and cis

Again, where would we be without the classics? Trans is Latin for ‘across from’ or ‘on the other side of’. So transgender refers to a person whose gender is different from that which was assigned at birth.

Another term heard increasingly is ‘cisgender’ from the Latin ‘cis’ meaning ‘on this side of’ – it is nothing to do with the sisterhood! So a ciswoman is a person who was born as, remains and identifies as a woman, formerly simply called ‘a woman’. The addition of the prefix is linguistically unnecessary but a political choice to prevent any suggestion that one is ‘normal’ whereas the requirement of a prefix for the other suggests that in some way it is less normal (albeit that in reality it is indeed less commonplace).

Transgender people generally have a gender identity or expression which is either male or female, but not the same as the one assigned to them, for example a person identified as female at birth who has a male sense of self. ‘Trans’ is a commonly used term. A trans woman is a person who was assigned male at birth but whose gender identity is female; a trans man is a person who was assigned female at birth but whose gender identity is male.

Transsexual generally refers to transgender people who use medical intervention to transition from one sex to the other by the prescription of hormones and surgical intervention. So not all transgender people are transsexual and some people find the word ‘transsexual’ stigmatising.

LBGTQ+

The number of letters in this abbreviation seems to get longer by the day. The LGB community (lesbian, gay and bisexual) added a T for transgender and then a Q for queer or questioning. The plus came along to include various other groups including intersex, asexual and pansexual people. Maybe there are other categories yet unheard of to be added later….

 

Voilà! My best effort at understanding the major definitions in the shifting sands of categorising people, with apologies to anyone omitted or offended. Sometimes it is difficult to keep up!

By Jonathan HADLOW 15 Nov, 2021

Everyone agrees that the courts are overloaded and that backlogs and waiting times are excessive. What is to be done about it?

Dominic Raab, the new Justice Secretary, told his party conference that too many civil cases are going to court and alternative dispute resolution should be used more often. The Sunday Times has reported that plans are being drawn up for mediation to be the standard default setting for family cases (except in cases of domestic abuse) and to discourage people from using court there will apparently be the possibility for the court to order those deemed to be abusing the system to pay substantial costs.

There is no doubt that mediation can be very constructive and useful in appropriate cases. Skilful mediators can help resolve disputes in a non-adversarial way, enabling people to move forward, reducing animosity and encouraging practical and realistic solutions. Here at DSD our own Michael Clarke is a specialist and accredited family mediator as well as a qualified solicitor, so we are well aware of the value of mediation as an approach in family cases. It is a valuable part of the system.

However, mediation is not appropriate in some cases and not only those involving domestic violence. Furthermore, for mediation to work, people need to understand their legal rights and available options.

Part of the story leading to the current difficulties is the removal of Legal Aid from many family cases back in 2013. Far from reducing cases and saving money, it has only exacerbated the problem.

We echo the comments of a Law Society spokesperson who said: 'There seems to be a belief among many people that lawyers necessarily mean courts, when in fact the opposite is the case. The evidence of the past decade is that taking lawyers out of the equation led to fewer cases going to mediation, and more cases going to court. With parents acting without advice and representation, they often bring misconceived arguments and irrelevant issues to court. The best way to keep more cases out of court and to reduce the number of inappropriate applications is not to introduce financial penalties, but to ensure that all separating couples can get legal advice and representation to guide them through the process.'

The removal of Legal Aid has led to an explosion in the numbers of unrepresented litigants in court, taking up more time and causing headaches for judges trying to dispense justice while dealing with people who don’t know the law or understand procedures. Whereas many cases used to be settled by agreements out of court unrepresented litigants are naturally far more likely to want the judge to decide.

Lawyers can advise clients on the law and their rights but also the rights of the others involved and the likely approach of a court, often leading to a more realistic understanding of the position. They can also advise on the availability of other options such as mediation for resolving disputes and guide clients to the most appropriate solution.  And sometimes it is indeed appropriate to go to court.  Lawyers should be seen as part of the solution to the current difficulties instead of part of the problem.

 

The other matter of fundamental concern is the drive to stop citizens using the courts. Access to justice is a fundamental cornerstone in a democratic society. Courts should be seen as a public service available to all citizens as a matter of principle.  It is entirely perverse to characterise people who want to seek redress as a nuisance clogging up the system. Threatening to deter people from pursuing their rights by punitive costs measures is a dangerous precedent.

There is indeed a problem in the family courts. But limiting access to justice is not the solution.

By Jonathan HADLOW 10 Nov, 2021

Society is constantly changing and, in consequence, so is the law. Nothing is ever set in stone and lawyers must be constantly aware of new developments not only in legislation but also in ongoing jurisprudence. This includes case law which may set binding precedents or at least give authoritative guidance on how to interpret and apply the law. Judgments from the Supreme Court constitute a binding precedents which determine the interpretation of the law thereafter. Court of Appeal judgments also bind lower courts, but of course can be trumped by the Supreme Court. Lower courts such as the High Court do not give judgments which are binding on anyone other than the parties in the case in question but can give helpful and authoritative indications on how to understand the law.

Developments in society leave the law struggling to understand and regulate novel ideas and phenomena which may not truly be new but may have been hidden or unacknowledged until relatively recently. The speed of change can be bewildering for a legal system which traditionally developed over centuries at glacial speed. Bearing in mind that sex between two consenting men over the age of 21 in private was only de-criminalised in England in 1967, it is no wonder the law can struggle to respond to the vast and rapid changes we have seen in society since then.

Issues concerning trans people have recently come to the fore, including a court case involving the Tavistock Clinic, which runs England’s only gender identity development service. It provides treatment for gender dysphoria, in which a person has a strong desire to be and to be treated as a person of the opposite sex from the sex allocated at birth. By definition, the issue becomes acute at puberty. The Tavistock offer as assessment service following which, if deemed appropriate, referral can be made to hospital endocrinologists for so-called puberty blockers to be prescribed to stop the onset of puberty. Patients may and often do later proceed to gender reassignment treatment including cross-sex hormones and surgery.

In the High Court, a case was brought by Keira Bell, a woman who was treated as a teenager by the clinic using puberty blockers and then began transitioning from female to male but has since de-transitioned. The second applicant is the mother of a teenager with autism waiting for such treatment. At the heart of the case was the issue of who could give consent for such profoundly important medical intervention. The applicants essentially argued that it was beyond the capacity of a teenager to understand the issues and to give consent.  

We must remember that once a person turns 18, the law presumes capacity to consent to medical treatment unless the individual concerned has a disability or impairment such that the Court of Protection needs to step in.   For those between 16 and 18 there is also a specific statutory right to consent to their own medical treatment. For under 16s, we fall back on the so-called Gillick principle (the name coming from a seminal decision of the House of Lords, the predecessor to the Supreme Court) which provides that a person under 16 can lawfully consent to medical treatment if s/he as an individual has sufficient understanding of what is involved in the specific intervention proposed and its implications. It is not a question simply of age and it is not a blanket concept – the same young person could have sufficient capacity to consent to one type of treatment but not another more complex intervention. At the same time parents retain their parental responsibility and can consent to treatment on behalf of their offspring – raising questions of what happens when there is a disagreement or indeed, as in the Gillick issue, the teenager does not want to involve the parents in the decision at all.

The High Court’s ruling in the puberty blocker case effectively meant that for under 18 year-olds, court permission might have to be sought before treatment could go ahead even if the young person, parents, medical and psychological staff all agreed. The judges’ view was that it was very unlikely that under 13-year-olds would ever be Gillick competent for such an issue and even 14 and 15-year-olds would struggle to have sufficient understanding of the long-term implications to be able to give valid consent. The suggestion was that the court would effectively double-check clinical judgment.

The Tavistock clinic appealed and recently the Court of Appeal gave its judgment, overturning the High Court decision. The judges took the opportunity to issue a reminder of the role of the courts in medical matters. They noted that the treatment of gender dysphoria raises complex medical, ethical and moral issues and that there is intense debate, but this must not cloud the issue of the court’s role, which is in relation exclusively to the legal issues. No-one suggested that the treatment in question is unlawful and it is not the court’s job to decide whether it such treatment was wise or not – that is a matter for the medical profession, its regulators, the NHS and ultimately for Parliament. The Court of Appeal went back to Gillick and the principle that it is for doctors to determine capacity in individual cases and that is not the job of the court.

The guidance the High Court had given in the case muddied the waters as, at the same time as deciding that the treatment as well as the Tavistock’s policies and practices with regard to consent were all within the law, the court had purported to give general guidance as to issues to be tackled when considering consent, and effectively imposed a court application where one was not legally required.

So the Court of Appeal went back to established principles. Unless a practice is unlawful, the courts should not make a declaration about it, and the court’s role is not to be ‘a general advice centre’. Gillick principles apply and it is for clinicians to exercise their professional judgment and to ensure that each individual patient gives valid consent in each individual case to the particular treatment concerned. This was not a matter for judicial review.

However, a cautionary note was sounded to remind everyone that this does not mean that courts are abdicating any role in this or any other medical case involving issues of consent. In any individual case, a question may be raised of whether valid consent has been properly sought and given and such issues may indeed be matters for court decision.

Legal clarity has been restored, at least for now as the applicants have vowed to take their fight on to the Supreme Court and it is quite possible to imagine an onward journey to Strasbourg (unless the UK withdraws from the jurisdiction of the European Court of Human Rights before then).

Few of us will be directly involved in gender dysphoria issues but, just as the Gillick case has been applied far beyond the question directly involved in the case itself (contraceptives for under 16-year-olds), the principles elucidated in this judgment apply to all medical treatment of young people, including other more everyday but nonetheless controversial issues such as vaccination.

If you are involved as a parent or young person in a case involving giving or refusing consent to medical treatment, there may be a legal as well as a medical issue and DSD’s family team are here to advise.

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