The incredible shrinking SPL take-up figures

Earlier this month, I wrote here about the law firm EMW and their narrative – eagerly sucked up by a few so-called journalists – about the supposedly low take-up of statutory paternity leave. I suggested that EMW’s narrative is little more than a pile of pants. And today, in response to my Freedom of Information request, HM Revenue & Customs have confirmed that EMW’s narrative is indeed, as the never knowingly understated Independent might report it, “broken”.

In short, EMW have for years based their narrative on HMRC figures for (a) the number of claimants (new fathers, mostly) paid statutory paternity pay, and (b) the number of claimants (new mothers) paid statutory maternity pay. Using the latter as a proxy for the number of fathers who are eligible for statutory paid paternity leave is highly questionable, but in any case it turns out those HMRC figures are inflated by a lot of double-counting. As HMRC confirm:

The number of claimants is the total number of individuals in receipt during that year, irrespective of when the payment first started. Where a given spell of [statutory maternity pay, statutory paternity pay or statutory shared parental pay] extends across two years, the claimant will be included in both years’ figures.

In the case of statutory maternity pay, this inflationary effect is substantial: up to 75%, if we assume (as seems to be the case) that, on average, women take nine months of SMP (i.e. their full entitlement). But with statutory paternity pay, the inflationary effect is negligible (because claimants can only take one or two weeks of paternity leave).

Maybe this doesn’t matter very much – the few press reports that EMW secured last month with their annual press release about the same set of HMRC data haven’t sparked a national debate about reform of paternity leave. Interestingly, however, EMW are also responsible for another take-up figure that frequently does feature in policy debate.

Only today, I received a document that states “the current UK [shared] parental leave scheme has a very poor uptake, with only around 1% of fathers using the scheme”. And, like many before them, the author of this document was almost certainly thinking of this news release from the TUC in April 2019:

The TUC is today calling for an overhaul of shared parental leave.

Last year only 9,200 new parents took shared parental leave – just 1% of those eligible to do so.

The TUC believes take-up is low because the scheme is so low-paid (£145.18 per week) making it unaffordable for most fathers.

A ‘note to Editors’ at the bottom of the news release states: “the University of Birmingham found that only 9,200 new parents (just over 1% of those entitled to take it) took SPL in 2017/2018”. However, the University of Birmingham’s short September 2018 report makes clear (see Reference 3) that it simply lifted the 1% figure from a (since deleted or moved) press release from … the law firm EMW.

Furthermore, it’s clear (including from a later EMW press release that has not been deleted) that EMW got to that 1% figure (1.4%, to be precise) by dividing HMRC’s figure for the number of claimants paid statutory shared parental pay in 2017/18 (9,200) by HMRC’s figure for the number of women paid statutory maternity pay that year (662,000) – that is, in the same way they calculated the take-up rate for paternity leave. We now know that figure for the number of women paid SMP is inflated (by up to 75%) by HMRC’s double-counting, but in any case EMW are wrong to assume that the number of women who went onto statutory maternity pay is the same as the number of fathers who are eligible to take shared parental leave. In 2013, in its impact assessment of the new policy (see Table 7 on p29), the Department for Business, Energy & Industrial Strategy assumed the maximum number of eligible fathers to be just 285,000 (a figure BEIS has never felt the need to revise).

Whatever, now that HMRC have confirmed how their raw annual figures are inflated by double-counting, and using that BEIS figure of 285,000 eligible fathers, we can adjust those HMRC figures, to remove the likely double-counting in respect of shared parental pay, and so arrive at new estimates for the rate of take-up of shared parental leave among eligible fathers since 2015/16. (Note that we also need to adjust the HMRC figures to allow for the fact that, as confirmed in Footnote 5 of this Answer to a Parliamentary Question by Ed Miliband in February 2021, at least 20% of HMRC’s claimants for statutory shared parental pay are mothers who have converted their maternity leave to shared parental leave, as they must do before the father can access statutory shared parental leave and pay.)

I have previously suggested that SPL take-up among eligible fathers was as ‘high’ as 3.6% in 2019/20. But I didn’t know then that HMRC’s annual figures for the number of shared parental pay claimants include the double-counting that HMRC have now confirmed. I should have known better, frankly, but for what it’s worth here are my new estimates of SPL take-up:

[NB: If you are a nerd and would like to see how I arrived at these figures, just ask and I’ll send you a spreadsheet]

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Is the paternity leave system “broken”?

How many women go on statutory maternity pay in the UK each year?

Go on, have a guess. Or maybe you know the number?

Perhaps you do. Or maybe you only think you do.

According to news reports last month in the Independent newspaper – headline: “Parental leave system is broken: number of fathers taking paternity leave plunges to 10-year low” – and the supposedly specialist journals Personnel Today and People Management, it’s about 650,000:

Only 27% of eligible fathers took time off last year; 176,000 men took paternity leave and claimed statutory paternity pay in the 12 months to 31 March 2021 compared with 652,000 women who took maternity leave over the same period.

The data was released by HM Revenue & Customs following a Freedom of Information request by law firm EMW.

All three news reports were based on a press release by law firm EMW. Indeed, in recent years, EMW have been admirably effective at getting press coverage out of pretty much the same story, based on the same (updated) set of HMRC data: here they are in the Independent and Management Today in July 2019, and the Telegraph and HR News in August 2020. One year it’s ‘Only one third of fathers are taking paternity leave!’, and the next it’s ‘Two thirds of fathers are not taking paternity leave!’ Well done, law firm EMW.

We can only guess how EMW would have framed this unchanging story last month, had the Covid19 pandemic not come along in 2020. This provided them with the somewhat over-dramatic “paternity leave take-up has hit a 10-year low, with only approximately a quarter of eligible fathers (27%) taking paternity leave after the birth of their child” hook, to the excitement of sub-editors at the Independent and the usual suspects such as Pregnant Then Screwed. But then it is hardly surprising, given how much of the workforce was on furlough for much of 2020/21, that some 30,000 new fathers decided to continue at home on furlough, on 80-100% of their normal wages, rather than take one or two weeks of statutory paternity leave on just £150 per week.

Whatever, here’s that HMRC data in full, showing that – *checks notes* – the paternity leave system is broken:

However, there are several problems with this narrative, and the HMRC data on which it is based.

The first problem is the assumption by EMW that the number of fathers (and other second parents) who are eligible to claim statutory paternity pay (i.e. the denominator for their paternity leave take-up rate) is the same as the number of women who started statutory paid maternity leave. There are a number of reasons why this is not the case, but to be fair it’s probably the best proxy available, so we can probably let this one pass.

The second problem is that, if we do assume that the number of fathers (and other second parents) who are eligible to claim statutory paternity pay is the same as the number of women who started statutory paid maternity leave, then we probably need to include in that latter number at least some of the 60,000 women who go on Maternity Allowance, rather than SMP, each year. The legal eagles at EMW seem to have forgotten about Maternity Allowance, but adding the 40,000 employed new mothers who get Maternity Allowance to their base figure of (about) 650,000 would make the paternity leave system look even more “broken”: it would, for example, indicate a paternity leave take-up rate of just 30% in 2019/20, not 32% as suggested by EMW.

However, the third – and biggest – problem with EMW’s narrative is that the number of women who start statutory maternity pay each year is not (about) 650,000, or anywhere near that number.

For a start, according to ONS data, in 2018 there were only 649,626 maternities in England and Wales, plus about 60,000 in Scotland. And a significant proportion of those 710,000 mothers (plus those in Northern Ireland) will not have been in employment (in March 2019, the Department for Business, Energy & Industrial Strategy estimated the employment rate of ‘women of child bearing age’ to be 73%). So it’s just not credible that pretty much all of the 710,000 went onto either SMP or Maternity Allowance.

More to the point, every year the DWP publishes data for benefits expenditure and caseload, including for SMP and Maternity Allowance. This data is published under the terms of a Memorandum of Understanding with the Office for Budget Responsibility (OBR), and reflects the Government’s financial delivery plans. So, if it’s wrong, the Budget is a pile of pants. And, according to this data, between 2012/13 and 2020/21, the average number of women going on to SMP was just 268,000 (within a range of 262,000 to 275,000).

The DWP also publishes quarterly data for Maternity Allowance starts, including a breakdown by employment status (’employed’ or ‘self-employed’), so we can add the some 40,000 employed women who started on Maternity Allowance each year to the OBR-approved number of women who started on SMP. (Note that, in 2020/21, there was also a pandemic-related dip in the number of employed women who started on Maternity Allowance, from 40,000 to 30,000. Believe it or not, neither law firm EMW nor Pregnant Then Screwed have yet made a fuss about this.)

This combined data gives us a significantly different denominator (for calculating the take-up rate of paternity leave) to the HMRC data relied upon by law firm EMW and their friendly (but somewhat uninformed) journalists, and so a rather different picture of the take-up of statutory paternity leave:

Now you might still argue that even this data shows the paternity leave system to be ‘broken’. But I would suggest that a take-up rate of about 70% is not that bad, really, given the stupidly low rate at which such leave is paid and the other barriers to take-up, not to mention the fact that a good chunk of the ‘missing’ 30% will be new fathers who are self-employed, so are not even entitled to statutory paid paternity leave. Indeed, this is one of the reasons why, as mentioned above, law firm EMW are wrong to assume that the number of new fathers who are eligible to take statutory paternity leave is the same as the number of new mothers who start statutory paid maternity leave.

So, which set of data on SMP is correct, and why the discrepancy between the two? Well, at the time of writing, there’s no definitive answer to that, but this recent Answer by Treasury minister Jesse Norman to a Parliamentary Question by Kirsten Oswald MP strongly suggests (a) that the Government favours the OBR-certified data in the DWP’s annual Benefit Expenditure & Caseload tables; and (b) that one reason for the discrepancy is that the HMRC data on SMP provided to law firm EMW (and others) via Freedom of Information requests includes a lot of double counting, because it “includes claimants in each year in which they received statutory payments”.

In other words, a woman who took nine months of statutory maternity leave on SMP from October 2019 to June 2020, say, will have been counted twice by HMRC, first in its figure for 2019/20, and then in its figure for 2020/21. With women taking nine months of statutory paid maternity leave, on average, this means the HMRC data overstates the true figure by up to 75%. (There may well be such double counting in HMRC’s figures for statutory paternity pay, too, but as claimants take only one or two weeks of such pay, the inflationary effect will be negligible.)

Allowing for this double counting would reduce the HMRC figure of some 650,000 SMP starts a year to as little as 370,000 (which would increase EMW’s paternity leave take-up rate for 2019/20, from 32% to 56%). But that still leaves a significant discrepancy between the HMRC data and that published by the DWP as part of the OBR-certified Benefit Expenditure & Caseload tables.

I’m awaiting a response from HMRC to a Freedom of Information request seeking an explanation of the discrepancy, so maybe everything will yet become clear. Or, more likely, it won’t. But watch this space.

(For the record, none of the above is to dispute that our parental leave system is broken. It is very broken, and I have written extensively about just how broken it is. But paternity leave is the least important part of that system and, while it should be better paid and be a Day One right for all workers, including the self-employed, there are much bigger fish to fry in this policy area.)

Update (27 September): In its response to my FoI request, HMRC has confirmed that the figures provided to the law firm EMW (and others) include lot of double-counting:

The number of claimants is the total number of individuals in receipt during that year, irrespective of when the payment first started. Where a given spell of [statutory shared parental leave pay, statutory maternity pay or statutory paternity pay] extends across two years, the claimant will be included in both years’ figures.

So, EMW’s narrative about the take-up rate of statutory paternity leave is indeed ‘broken’.

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Some thoughts on Brexit Unfolded, by Chris Grey

If you’re looking for a forensic yet highly readable account of the batshit-crazy craziness of Brexit and its various leading advocates since they unexpectedly stormed to victory over common sense in June 2016, then Chris Grey’s Brexit Unfolded is the book for you.

The book’s central theme is encapsulated in its subtitle: How no one got what they wanted (and why they were never going to). In short, 17.4 million people were induced to vote for a really dumb and incoherent idea without anyone having a clue how to put the idea and its conflicting, ‘cakeist’ demands into practice. Then, when the intellectually-challenged Tory politicians presented with the task found their deluded ‘cakeism’ coming up against – and being frustrated by – reality, they simply railed, plotted and fought against each other, thus steering the entire process down a vicious spiral of idiocy, puerility and irresponsibility.

In December 2019, this ever more absurd process finally climaxed in the farce of Tory MPs breathlessly voting for a ‘renegotiated’ Withdrawal Agreement little different to the one they had hated so much they had brought down their own Prime Minister, the hapless Theresa May. As a result, the UK left the EU on 31 January 2020. Then, after eleven months of post-orgasm torture, both Tory and Labour MPs spaffed the country’s future up the wall by voting for a ‘future relationship’ deal they had barely had time to read, let alone understand. And now, after just a few months in the glorious sunlit uplands of Brexit, the Brexiters wail that it’s a terrible, ‘punishment’ deal that must be re-negotiated.

With Chris having documented every slap and tickle of these four years of political sadomasochism in real time, via his (rightly) acclaimed Brexit Blog, Brexit Unfolded does not miss a trick in exposing, and eviscerating, the self-defeating lunacy of Brexit and the Brexiters. And the ‘no one’ in the book’s subtitle clearly encompasses Remain voters like me (and Chris himself), who obviously didn’t get what we wanted. But what is oddly missing from the book is any analysis of why hard-core Remainer MPs failed to get what they wanted, namely a People’s Vote and/or the cancellation of Brexit.

Maybe this doesn’t matter very much, given the outcome. But you could say the same about the antics of government ministers and the Tory nut-jobs in the European Research Group (ERG), many of whom are already little more than footnotes in Brexit Unfolded. And, if it is right to note that the Brexiters could and should have done things differently, as Chris does throughout the book, it is surely fair to do the same in respect of Remainer MPs, many of whom seemed to understand the Brexit process no better than the Brexiters.

A recurrent theme throughout Brexit Unfolded is the “persistent, repeated failure [on the part of Brexiters] to understand, or to accept, the two-stage nature of the Brexit process”. This was the ‘row of the summer’ that the People’s Idiot, David Davis, spectacularly lost to the EU in 2017, with the result that the UK could not negotiate the terms of its ‘future relationship’ with the EU until after leaving the EU (at the end of the two-year Article 50 period that Theresa May had stupidly kicked off in March 2017). And I know – because I was there, slogging my guts out in a dingy office in Westminster – that many Remainer MPs did not fully understand this two-stage nature of the process either.

More to the point, in April 2018, the MPs and professional activists behind the launch of the People’s Vote campaign fatally failed to recognise the existential implications of the two-stage process for any such second or confirmatory referendum, with the rather crucial result that their campaign was essentially dead from birth. For, as Chris notes, pretty much the only credible argument for having a People’s Vote later in 2018 or in 2019 was that, in June 2016, the ‘people’ had voted for Brexit without knowing what Brexit would actually look like. Yet, thanks to the EU’s insistence on the two-stage process, the same would be true of any People’s Vote held before the end of the Article 50 period.

I was in the room when uber-pollster Peter Kellner emphasised this point to a meeting of pro-PV MPs in early February 2019, just weeks before Chuka Umunna and Anna Soubry threw in the towel. And, of course, holding a People’s Vote after the expiry of the Article 50 period would be pointless, from a Remainer point of view, as the option of cancelling Brexit and remaining in the EU would no longer be available.

Accordingly, the People’s Vote would have been little more than a re-run of the 2016 referendum, with voters having much the same choice between voting to remain in the EU, or voting to leave for an undefined and therefore unknown future. Throw in the near-insurmountable practical challenges of holding a five-month referendum campaign before the expiry of the Article 50 period, and the never-answered question of which credible ‘leave’ option(s) would be on the ballot paper, and the People’s Vote – the principal vehicle for parliamentary opposition to Brexit from April 2018 onwards – was simply never going to fly. Which means its dogged pursuit was not only intellectually dishonest, but a waste of time and effort that could have been better spent pursuing an alternative strategy.

All of which makes it somewhat ironic, for this reader of Brexit Unfolded, that the only MP to have provided an endorsement for the book’s cover is Caroline Lucas of the Green Party. For it was in Caroline’s dingy outer office that I toiled away on Brexit from late 2016 to April 2019 (when I could stand it no more).

Because, when Caroline says (on its cover) that Brexit Unfolded is “a searing account of the deep failure of political leadership in our country at a moment when it was so desperately needed”, I am reminded that it was Caroline who, in September 2015, enthusiastically voted with David Cameron and the Tories to hold a referendum on a really dumb and incoherent idea, without insisting on sensible, democratic safeguards such as a super-majority and/or votes for 16- and 17-year olds. So, not much political leadership from Caroline when David Cameron was making that “colossal political blunder”, as Chris Grey rightly calls it.

It was also Caroline who (against my advice) unnecessarily voted with Theresa May and the Tories to call the June 2017 general election, a call that Chris Grey rightly lambasts as “the most extraordinary and most ill-judged decision in modern British political history (unless that was Cameron’s calling of the referendum)”, and one which “backfired horribly, leaving [May] leading a minority government dependent upon the DUP”.

It was Caroline who helped launch and then (against my advice) stuck with the near monomaniacal People’s Vote campaign, masterminded behind the scenes by Peter Mandelson and Alistair Campbell, who seemed to have spoken to Tony Blair between almost every one of the Monday meetings that I regularly attended on Caroline’s behalf. And it was Caroline who went along with the campaign’s brutal ‘scorched earth’ policy of shooting-down all the other supposed alternatives to ‘hard’ or ‘no-deal’ Brexit, such as Stephen Kinnock’s Norway Plus. Yet, just a few weeks prior to the campaign’s launch, the EU had confirmed its insistence on the two-stage Brexit process that made a People’s Vote futile (at least in practice, if not in theory).

Then, in December 2018 and early 2019, it was Caroline who (against my advice) agitated and then repeatedly voted against Theresa May’s Withdrawal Agreement. Yes, that Withdrawal Agreement was deeply flawed (because Brexit is a really dumb and incoherent idea). But that repeated rejection by MPs, instead of inducing a humiliated Theresa May to agree to a People’s Vote on the Agreement at the eleventh hour, as Mandelson, Campbell and Lucas had recklessly gambled it would, simply precipitated the utter chaos of 2019, the inevitable (and predicted) replacement of Theresa May with the even more disastrous Boris Johnson, the tragicomic farce of the June 2019 Euro election, a second general election during the precious Article 50 period, and the near destruction of the Labour Party – the only credible alternative government to the Tories. Well done, Caroline and the Green Party.

As if that wasn’t enough, during that chaotic summer of 2019, Caroline’s idea of demonstrating political leadership at a moment when it is desperately needed was first to say that she would ignore a win by Leave in any People’s Vote, and then to call for an all-female Cabinet of National Unity to block Brexit. As the Guardian‘s ace satirist, Marina Hyde, noted at the time, “the Greens want the headlines for a day and they’ve got a plan just batshit enough to secure them.”

So yes, Chris Grey is absolutely right to highlight, as he does in Brexit Unfolded, the “spectacular failures of political leadership and political institutions” during the Brexit process. But let’s not kid ourselves, or try to pre-write history, by pretending that those failures were confined to the Brexiters. Those behind the People’s Vote did not get what they wanted (and they were never going to).

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So, The Moderate Voices have a new album out. Is it any good?

Woman: I lost my job because I said sex matters!

Women: WTAF? This is a terrible set-back for women’s rights.

The Moderate Voices: Trans women are women, non-binary identities are valid, and Jolyon Maugham is super wonderful.

Woman: But … I lost my job! For saying sex matters!

Women: A woman lost her job! Just for saying sex matters!

The Moderate Voices: There is no debate. Byeeeee.

Women: This is really bad for women’s rights. We need to fight this.

The Moderate Voices: Sorry, we have no time for shouty, difficult women. And THERE IS NO DEBATE! Can we sell you a spider broach? Or a ‘Nasty Woman’ T-shirt?

Women: But … what about ‘Courage Calls to Courage Everywhere’?

The Moderate Voices: How dare you attack us! Pile on blah blah. THERE IS NO DEBATE! Just be nice to the women with a beard and a penis. They are all lovely.

Some time later …

Woman: I won my appeal! The Employment Appeal Tribunal has ruled that the belief that sex matters is protected by the Equality Act.

Women: This is a fantastic victory for women’s rights!

Trans allies: This is a terrible ruling by a transphobic, neo-colonialist legal system that will do great damage to the basic human right of women with a beard and a penis to shout down cis women. It is literal violence, and will lead directly to the death of hundreds of thousands of the most vulnerable people in the world.

Jolyon ‘foxy’ Maugham QC: Please donate to my crowdfunder to try and get all these nasty TERFs to shut the fuck up. What? That gets you a block.

Sir Keir Starmer: Trans women are women, and non-binary identities are valid. Self-ID blah blah. Is that enough? Can I go and play football now?

The Moderate Voices: *silence*

Women: Why have the Moderate Voices not said anything about this landmark ruling?

The Moderate Voices: How dare shouty women attack us for not saying anything about a landmark legal ruling on women’s rights! Mental health blah blah. Trans women are so cute, and we just love their world class ability to accessorise! Oh, we are so witty. Unlike those shouty, difficult cis women. The Moderate Voices need to be heard in this debate.

Women: WTAF???

The Moderate Voices: See! We told you! Why can’t the cis witches stop attacking us, and just be nice to the cute trans women with a beard and a penis?

Other Moderate Voices: You are SO brave for speaking out.

The Moderate Voices: Thank you! I love you! You are so brilliant.

Other Moderate Voices: I love you too! You are brave AND brilliant.

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Employment Tribunal claims: Will the Lewis-Thomson Theorem pass the test of time?

With the release this morning of the latest set of quarterly Employment Tribunal (ET) statistics, covering Q4 of 2020/21 (Jan – Mar 2021), and with last week having seen the latest farcical performance of the ‘spot a quirk in the ET stats and get our name in the papers’ PR party trick – this time by Stuart Lewis of Rest Less and Patrick Thomson of the Centre for Ageing Better – I thought it might be interesting to check on how the oh-so-confident predictions of previous performers of the trick have actually turned out.

The first of our past performers is DLA Piper’s legal eagle – but statistical sparrow – Jane Hannon, who in May 2020 secured a nice little piece in the Guardian, under the headline “29,000 claims a year despite 50 years since Equal Pay Act”. This ‘revealed’ that “a consistently high number of workers are alleging that their employers are illegally paying them less than colleagues in similar roles”, and that “the number of claims brought to employment tribunals [is] showing no sign of decreasing”.

Unfortunately for Ms Hannon – who really should have gone to Specsavers – a slightly more than cursory analysis of the ET statistics showed the somewhat inconsistent number of claims decreasing in no fewer than ten of the previous 12 years, including in each of the two most recent years, 2018/19 and 2019/20.

And today, the latest set of statistics confirms that this downwards trend continued in 2020/21, with the number of equal pay claims decreasing by another 65%, to its lowest level in at least the last 16 years. But hey, who could possibly have seen the signs?

Next up in our rogues’ gallery of past performers is Hannah Mahon, a partner at GQ Littler, which modestly describes itself as “the world’s leading employment law firm”. In July 2019, Ms Mahon secured near-identical articles in the Financial Times, the Daily Fail, the Metro and the Times about a 69% “spike” in the number of sex discrimination claims in 2018/19. Ms Mahon attributed this to “a big increase in the public airing of sexual harassment claims” in the era of #MeToo: “It’s a much more public thing now. People are starting to understand their rights and feeling less shy about speaking out.”

Unfortunately for Ms Mahon, a slightly more than cursory analysis of the ET statistics showed that pretty much all of the 69% spike had occurred in Scotland, and only in the two months June and August 2018. In England & Wales, the number of sex discrimination claims had actually fallen, by 8%. Ms Mahon would probably get on well with Stuart Lewis of Rest Less and Patrick Thomson of the Centre for Ageing Better, who failed to spot (or deliberately overlooked) the rather obvious fact that most of their 176% explosion in age discrimination claims in Q3 of 2020/21 occurred only in Scotland, only in October 2020, and had nothing whatsoever to do with firms ditching older staff during the pandemic.

And today, the latest set of statistics suggests that the #MeToo movement has yet to impact on women’s understanding of their rights, or their shyness about speaking out about sexual harassment at work, as the number of sex discrimination claims has fallen by 45% since 2018/19, and is now at a diminutive level rarely seen over the last 14 years.

Next up is Sophie Vanhegan, another partner at GQ Littler, who in June 2019 secured a lengthy piece in People Management – the official journal of the CIPD – about a 56% increase in pregnancy/maternity discrimination claims in 2017/18. Vanhegan attributed this ‘spike’ to the #MeToo movement making women more aware of unacceptable behaviour, especially related to pregnancy: “Things that may have simply just been accepted in the past are now being seen as unacceptable and people are feeling more confident in being able to challenge them” by bringing an ET claim.

Vanhegan was supported by Claire McCartney, a senior policy adviser at the CIPD, who said that “while the removal of tribunal fees may have accounted for some of the increase, there has also been a greater awareness of maternity and paternity rights, and an increased willingness to make claims”. And campaign group Pregnant Then Screwed were quick to jump on the bandwagon, tweeting that “the number of women experiencing discrimination has definitely risen but this [56% increase] is more about women feeling empowered to do something about it – all our hard work feels like it’s paying off.”

Leaving aside the rather obvious point that the #MeToo movement didn’t even start, on the other side of the Atlantic, until half-way through 2017/18, a slightly more than cursory analysis of the ET statistics showed that the 56% increase in pregnancy/maternity discrimination claims was entirely in line with the 60% increase in the number of new ET cases due to the abolition of ET fees in July 2017, just three months into 2017/18.

And today, the latest set of statistics confirms that, if the #MeToo movement has had any lasting impact on the willingness of pregnant women and new mothers in the UK to bring a pregnancy/maternity discrimination claim, it has been in the wrong direction. For, having bounced back to just short of its pre-ET fees level in 2018/19, the number of pregnancy/maternity discrimination claims has since fallen by 21%. Clearly, Pregnant Then Screwed need to be working a little harder.

Who knows, maybe last week’s performance of the PR party trick by Rest Less and the Centre for Ageing Better will prove to be the exception to the rule, and they will secure a footnote in employment policy history as the discoverers of a sustained, upwards trend in the number of age discrimination claims linked to Covid19 and the associated lockdowns. Maybe employment lawyers and policy wonks will sit around talking reverentially about the Lewis-Thomson Theorem, and nodding sagely.

Time will tell. But today’s set of employment statistics doesn’t bode well for the Lewis-Thomson Theorem. After removing another obvious multiple claimant case (in Scotland, in February 2021, with some 1,400 claimants), we find that age discrimination claims have fallen by 27% over the two most recent quarters. Have employers stopped ditching older staff because of the pandemic already? I have no idea. Ask Stuart Lewis at Rest Less.

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Garbage press reports about ET claims soar since Covid lockdown

AGE DISCRIMINATION CLAIMS IN SCOTLAND SOAR BY 13,000%, THEN DROP LIKE A BRICK

By Amelia Hill, Senior Reporter at the Guardian, Charles Hymas, Home Affairs Editor of the Telegraph, Giles Sheldrick, Chief Reporter at the Daily Express, Steve Doughty at the Daily Fail, Adam McCulloch at Personnel Today, Greg Wright at the Yorkshire Post, and Calum Trenaman at People Management (the voice of the CIPD).

The number of age discrimination claims taken to Employment Tribunals has increased dramatically in Scotland since Covid lockdown, according to analysis of Ministry of Injustice data.

Claims increased by 1,049% over the year, with a stonking 13,043% increase in October 2020, compared with the same month the year before.

News of the steep increase comes against a backdrop of it being a Bank Holiday weekend, and a resultant shortage of proper journalists on newsdesks throughout Fleet Street.

“We know that this increase has absolutely nothing to do with Covid, and tells us nothing about how employers have responded to the lockdowns”, said Stuart Lewis, the founder of Rest Less, a jobs site in desperate need of a higher public profile. “But these journalists don’t, so we can get our name in their papers for nothing!”

Patrick Thomson, a senior programme manager at the Centre for Ageing Better, said: “I haven’t got a clue what’s going on, to be honest, but they said if I provide a meaningless quote we will get our name in the papers too. This is the #MeToo moment for wrinklies. Or something.”

A Ministry of Injustice spokesperson said: “Hahahaha! Hahahaha!”

Several dozen employment lawyers said: “Are you joking me? In the Guardian???”

Note (only read if you are a nerd): Across England, Scotland & Wales, there was a 74% increase in the number of age discrimination ET claims in 2020, compared to 2019. And there was a 176% increase in Oct-Dec 2020, compared to the same quarter in 2019. But that was mostly due to a 13,043% increase in Scotland in October 2020 (when there were 920 claims), compared to October 2019 (when there were 7 claims).

Strip out the figures for Scotland (shown in the chart above), and there was a 30% increase in England & Wales in 2020 (when there were 2,662 claims), compared to 2019 (2,021 claims), and a 21% increase in Oct-Dec 2020 (when there were 672 claims), compared to the same quarter in 2019 (555 claims). And it is really only that three-month period Oct – Dec 2020 that we need to focus on, as that is the first quarter in which we can expect to see any impact of Covid and the associated lockdowns on the number of ET discrimination claims. Why else would Rest Less, the Centre for Ageing Better and their pet journalists have focused on it in their garbage articles, eh? [Yes, yes, I know.]

To put that 21% rise in context, in Oct-Dec 2020, across England, Scotland & Wales the total number of new ET single claims/cases (arguably the best benchmark in this context, but see below) rose by 25%, compared to the same quarter in 2019; unfair dismissal claims were up 28%, sex discrimination claims were up 13%, and both disability discrimination and pregnancy/maternity discrimination claims were up 8%. The number of age discrimination claims is very small, relative to major ET jurisdictions such as unfair dismissal, so only a numpty gets super excited about percentage changes in the number, which goes down as well as up.

For example, the 3,668 age discrimination claims in England, Scotland & Wales in 2020 is way down on 2017, when there were 6,704 claims, on 2016, when there were 7,498 claims, and on 2015, when there were 12,654 claims. Why did the Guardian, the Telegraph, the Express, the Daily Fail, Personnel Today, the Yorkshire Post and People Management not mention this steep decline? Surely Rest Less and the Centre for Better Ageing should be celebrating this long-term downward trend?

All this data has been freely available on the MoJ website since 11 March 2021, so it’s not really ‘news’ on 1 June. And the October 2020 figure in Scotland appears to reflect the lodging of a single multiple claimant case (with some 900+ claimants) by the Scottish Police Federation, in respect of changes to police and other civil service pensions made by the Government in 2015 – so, nothing to do with Covid or the lockdowns.

Spotting a quirk in the ET statistics and then claiming this proves something your organisation gives a shit about is an old PR trick that I have written about here and, even longer ago, here.

On Twitter, Giles Sheldrick of the Daily Express has sought to defend his numptiness by (a) conceding that age discrimination claims rose by just 30% in England & Wales in 2020, not 74% as stated in his article; and (b) asserting that the total number of jurisdictional complaints [sic] rose by 7%, whereas in his article he stated that this number (which he wrongly referred to as “overall cases”) had fallen from 183,207 to 180,430 (a drop of 2%). In short, in just 24 hours he’s gone from contrasting an increase of 74% with a decrease of 2% (a difference of 76 percentage points), to contrasting an increase of 30% with an increase of 7% (a difference of just 23 percentage points).

Leaving aside the question of whether Giles would have got his article in the paper if he’d used the 30% and 7% figures he now relies on, the total number of jurisdictional complaints is the least meaningful of the several different ways of measuring ‘overall cases’. A much more meaningful benchmark is the total number of claims, as that is also the total number of claimants, each of whom can make a claim in more than one jurisdiction. And, across England, Scotland & Wales, that number rose by 8%, from 108,592 in 2019, to 117,446 in 2020. But of course Rest Less and the Centre for Ageing Better chose to contrast the number of age discrimination claims with the total number of jurisdictional complaints, because of that convenient 2% fall.

Furthermore, some (including me) would argue that the most meaningful benchmark in this context is the total number of claims made by individual workers (i.e. the number of single claims/cases), as – unlike the total number of claims – that number is not subject to the distortions caused by multiple claimant cases brought by law firms and trade unions on behalf of sometimes very large groups of workers (e.g. that multiple claimant case with some 900 claimants in Scotland in October 2020). And, across England, Scotland & Wales, the total number of single claims/cases rose by 13%, from 39,966 in 2019, to 45,245 in 2020.

So, you can see why Rest Less, the Centre for Ageing Better and their pet journalists chose not to use the total number of single claims/cases as their benchmark. But, if we do use it as the benchmark, the statistics show that, in Oct – Dec 2020, the number of age discrimination claims in England & Wales rose by 21%, compared to the same period in 2019, and the number of single claims/cases rose by 27% (from 9,743 to 12,337). Those are really the only two percentages that matter here, and I doubt that even a future Pulitzer Prize-winning newshound like Giles Sheldrick could get a story out of them.

UPDATE (7 June): So, the numpties at People Management (the voice of the CIPD) have seen fit to add a corrective to their original article. This states:

Since publishing, People Management has learned there was a spike of 920 age discrimination complaints made in Scotland in October 2020 – accounting for a quarter of all age discrimination complaints made last year – which could be attributed to coordinated public sector claims following a 2018 Court of Appeal ruling on pensions.

In response, Rest Less noted that excluding the figures from Scotland, England and Wales had still seen a 30 per cent rise in claims for age discrimination last year, whereas the total number of [jurisdictional] claims for all reasons only increased by 7 per cent.

Stuart Lewis, founder of Rest Less, said: “While some of the rise can be attributed to a specific case based in Scotland, the underlying trend of age discrimination claims is clearly up year on year and we know that the pandemic has exacerbated age discrimination in both the workplace and the recruitment process.

Leaving aside the question of whether Stuart Lewis of Rest Less would have got quite so many numpty journalists to copy out his press release if he’d used the 30% and 7% figures, rather than 74% and -2%, this still begs the question: so fucking what?

Because, if we look at what happened, month by month, in England & Wales in 2019 and 2020, we can see that much of that 30% increase occurred in January, February and July 2020. And there certainly won’t have been any impact of Covid and the lockdowns on the number of age discrimination claims in January and February 2020, as the first lockdown only started on 23 March.

As for July 2020, that is still a bit too early to expect to see much if any impact of Covid and the first lockdown on the number of ET claims, given the need for any would-be ET claimant to go through statutory Acas early conciliation before being able to lodge an ET claim. The spike that month seems more likely to be due to the lodging of a multiple claimant case somewhere. And – lo! – if we look at the data for July 2020, we find that 208 (57%) of the 364 age discrimination claims in England & Wales were lodged in just one region: London. The month before, there were just 22 such claims in London region (out of a total of 199), in August there were 64 (out of a total of 175), and in December – when employers were busy ditching older workers by the thousand, according to Rest Less and the Centre for Ageing Better – there were 26 (out of a total of 189).

So, if we compare the last five months of 2020 with the same period in 2019, we find that age discrimination claims in England & Wales increased by just 7%, from 969 to 1,041. Which I suggest is no big deal, and certainly doesn’t merit feverish coverage in four national newspapers, a regional newspaper and two supposedly specialist journals.

Update (10 June): So, ten days after I wrote to the Guardian‘s Readers’ Editor to request a correction, the Guardian has today amended its original article, to reflect the 30% and 7% figures on which Stuart Lewis of Rest Less now relies.

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You never miss the ET claims, until they are gone

With apologies to Chaka Khan, the latest set of weekly HMCTS management information on the backlog of Employment Tribunal (ET) cases – which the Ministry of Injustice has been publishing since the fourth month of the pandemic, alongside that for other courts and tribunals – suggests the Government’s repeatedly promised Employment Bill may not be the only thing to have gone missing recently.

Since the start of the year, this weekly management information had suggested that, due to a steady decline in the number of new ET single claims/cases, the ET system had finally got on top of the backlog of such claims/cases – which has ballooned by 48% since the onset of the pandemic – and had even started to reduce it: the backlog peaked at 45,376 in late February, then fell by 1,034 over the first three weeks of March.

And the latest set of this management information, published this morning, should have set out the data on new claims/cases and disposals in the five weeks ending 28 March, 4 April, 11 April, 18 April and 25 April. However, the relevant cells in the spreadsheet for the latter four weeks are blank, and a note at the top of the spreadsheet states:

The workload information for April is not included in this release, as the work of the Employment Tribunal transfers to a new case management system. The figures for April will be updated in [a] future release of this [Management Information].

Which is understandable, perhaps, but does leave us with the rather odd fact that, according to the published HMCTS management information up to 28 March, the weekly number of new single claims/cases fell from more than 1,000 in each of 13 of the last 15 weeks of 2020 (an average of 1,067), to just over 900 in mid-January, then to an average of 822 in February, to 623 in mid-March, and an almost microscopic 360 in the week ending 28 March (see the table, below).

Now, it is possible that the number of new ET single claims/cases has fallen by 66% over the first three months of 2021, to a level not seen since the 2013-17 era of ET fees. But it doesn’t seem very likely. In late 2020, the trend was (mildly) upwards.

But wait! In tiny print, at the bottom of the spreadsheet of HMCTS data, is a somewhat cryptic footnote. This states:

The Employment Tribunal is moving onto a new case management system [CMS] for the administration of work from March 2021. HMCTS is currently working to incorporate the data from this new IT system alongside longer-established data sources to provide complete management information for this jurisdiction. While this work is ongoing, figures shown [in this spreadsheet] are only from the longer-established data sources and do not include all the cases being administered using the new system. As a result, the figures may show declining trends, but will be incomplete and reflect the transition in case management systems.

Could it be that new ET claims/cases administered under the new CMS – perhaps including in January, February and March as the new system was being piloted and/or live tested, before going fully live from 1 April – have, in effect, gone missing from the published HMCTS data? That is, the decline in new claims/cases shown in the published data isn’t real. In which case, it may well be that the ET system has not yet got on top of the (possibly still growing) backlog, after all.

Perhaps we should be told. Whatever, as the Low Pay Commission notes in a new report on enforcement of the minimum wage, the average waiting time for an ET hearing is now “over 12 months”.

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Hey, Barons Adonis & Cashman, some Bills are only about women. Get over it.

Last week, it emerged that Hibo Wardere, a survivor of and indefatigable campaigner against what even the woke kids at Amnesty International still call Female Genital Mutilation (FGM), has started selling T-shirts emblazoned with the slogan “I am a woman. Get over it.” This is in response to Hibo being monstered on social media by trans activists – some of them survivors of an incorrect use of their pronouns – for not campaigning against FGM in a way that is sufficiently inclusive of scrotum-owners. Or something.

And this week, in the House of Lords, the scrotum-owners were at it again. Well, two scrotum-owners: Barons Andrew Adonis and Michael Cashman.

On Monday, just minutes into the Second Reading debate on the Ministerial & other Maternity Allowances Bill – which creates a discretionary power for scrotum-owner Boris Johnson to allow pregnant cervix-haver Suella Braverman to take paid maternity leave without having to resign as Attorney General – scrotum-owner Lord Adonis of Camden Town popped up on Twitter to announce that “We are listening to a ludicrous speech in the House of Lords from a right wing Tory objecting to gender neutral drafting of legislation on the grounds that it is ‘woke’.”

Given that Baron Adonis tweeted at 3:24pm, it seems reasonable to assume that he was referring to cervix-haver Baroness Noakes, the second speaker in the debate, who spoke from 3:17pm to 3:26pm. And what Baroness Noakes had actually said, literally while Baron Adonis was composing his electronic commentary on the debate, was:

Clause 1(3) [of the Bill] uses the language of “the person is pregnant” and “the person has given birth to a child”.

It is a biological fact that only women can be pregnant and give birth. That is why laws that relate to maternity issues have in the past routinely been drafted using the words “woman”, “she” and “her”. It is not good enough to just say that we have gender-neutral drafting now. When Jack Straw, as [Leader of the House of Commons], announced in 2007 that the Government would use gender-neutral drafting, the context was the long-standing interpretation rule that words referring to the masculine gender include the feminine. This was thought to be demeaning to women, although I personally never felt demeaned by it. The Statement made it clear that this was not intended to outlaw the use of particular genders where only one is involved. It was not intended to prevent women from being mothers. It is ironic that Jack Straw’s generous gesture towards equality has now been turned against women.

Just three years after the 2007 Statement, the Equality Act 2010 was passed. That clearly uses female terminology to define the protected characteristics of sex and pregnancy. On 12 December 2013, your Lordships’ House had a debate on gender-neutral drafting. The Minister, my noble friend Lord Gardiner of Kimble, said: “The guidance”— that is, the guidance from parliamentary counsel—

“also recognises that there must be some flexibility and that there will be some Acts where only gender-specific drafting can be usefully applied. In a case where a person has to be of a particular gender—male or female—gender-neutral drafting does not require drafters to avoid referring to the gender. I think your Lordships would agree that that would be the case for legislation about maternity.”

At this point, the debate had been going for a full 21 minutes and, given the frustrated tone of his tweet, it may be that Baron Adonis had reached the limit of his attention span. But, had he listened on for just ten more minutes, he would have heard his own front-bench colleague, Baroness Hayter, deputy leader of Labour in the Lords, endorse – on behalf of the Labour Party – the concern of the “ludicrous” and “right wing” Baroness Noakes:

As we heard from the noble Baroness, Lady Noakes, there is one unusual choice of words in this Bill: the reference to a “person”, rather than a “woman”, being pregnant. The Minister has provided assurances that this is a drafting issue and does not signal any change of policy, but there is no doubt that it seems at odds with other legislation on maternity rights and protection. More surprising, as we heard from the noble Baroness—she actually called it garbage—was the statement made by [the Minister’s] colleague in the Commons:

“It is not the case that we could legally and correctly use the word ‘woman’ in this piece of legislation”.

Why not, given that it is in the notes and the Minister assured us that

“it will continue to be the policy of the Government to refer to ‘pregnant women’ in broader Government publications”?

We look forward to what the Minister just promised us: his explaining a little more when he winds up about why this language was used and whether there is any chance of it conflicting with other relevant legislation.

A few minutes more, and Baron Adonis could have heard – who knows, maybe he did hear – another of his Labour colleagues, Baroness Gale – admittedly just another cervix-haver – set the issue out in terms that any ennobled scrotum-owner should be able to understand:

It is surprising to me, and to many others, that the word “woman” is not used in this Bill but instead the word “person” is used, as the noble Baroness, Lady Noakes, explained so well. I certainly agree with her. Considering that only women can get pregnant and give birth, I cannot see any reason why “woman” cannot be used. I believe in using gender-neutral language where appropriate, but I do not believe it is appropriate in this Bill. In his letter to Peers, the Minister explained that “person”

“reflects modern drafting convention and guidance, in place since 2007, and common across much of our legislation”.

I note that the Minister says “much”, which I assume means “not all”.

Jack Straw, as Leader of the House of Commons, in 2007 made a Written Statement to the House of Commons dealing with using gender-neutral language in legislation. It was not debated, but this has become the guidance, and in many respects was good, as no longer in legislation would we see the male gender used when it should have referred to men and women.

But there are examples, such as in [this] Bill, when the word “woman” should be used rather than “person”. I give the example of the Equality Act 2010, which uses “woman”, not “person”, throughout and in all sections related to pregnancy, maternity and lactation. I refer again to the Minister’s letter:

“We recognise that a drafting convention that was originally designed to avoid denigrating women should not result in the erasure of women from our public discourse.”

As a result, the Explanatory Notes have been changed, using “Minister” instead of “person” in several places. I just wonder about that. The Minister recognised that it was not appropriate to use “person” and changed it to “Minister”, but why could it not have been changed to “woman”?

On the issue of language, at Second Reading in the Commons the Paymaster-General, Penny Mordaunt, said that she would provide further explanation in Committee but that she understood “how offensive the word ‘person’ or ‘persons’ can be in this context”.

Commenting further, she said:

“I hope that we can make some changes, if not to the legislation then to the explanatory notes, that will address some of” these “issues.”

However, she said that the Government could put the word “Minister” in the Explanatory Notes and stated that:

“Although that is still gender-neutral language, it is a much less jarring term than ‘person’.

When legislation is intended only for women and not for men, I hope that the Minister will accept that “woman” should always be used in place of “person”.

Never mind the Minister, what about Baron Adonis?

It is not clear, from Hansard or Twitter, whether Baron Adonis was still listening to the debate at this point, so we don’t know whether he heard another of his Labour colleagues, Lord Hunt of Kings Heath – hurrah, a scrotum-owner! – express remarkably similar views to the “ludicrous” and “right wing” Baroness Noakes:

A colleague of mine counted the number of times “women” was used in the Commons debate and it came to over 300, yet the Bill makes no mention of women. Instead, we heard the rather inelegant terms “person who is pregnant” and “person who has given birth to a child”, which do not seem to add to what we understand as good English.

The justification was of course Jack Straw’s change in the convention and revised guidance. However, as the noble Baroness, Lady Noakes, said, that was designed to promote the rights of women because previously, “he” was always taken to mean “he and she” in legislation. For that to be used against women in this Bill is extraordinary.

The [Minister] was very helpful in arranging a meeting last week—we are meeting him again—and I am grateful to him. He must know that the Bill in the way it is worded is indefensible. If this had been a normal Second Reading, the Minister would have observed this debate, gone back and said, “We’re going to get an amendment and we’ve got to change it.” I know we have only four days to go but I urge him to think again. He should also say that this will never be used as a future precedent in legislation. He should ensure that parliamentary counsel changes the guidance, because it is not up to the mark.

By now the debate had been going for a whole hour, and again it is unclear whether Baron Adonis was still around to hear disability campaigner and Paralympian Baroness (Tanni) Grey-Thompson – who surely knows at least as much about overcoming inequality as Baron Adonis – say:

Like others, I will raise the language used in this Bill. I support neutral language, and there are many benefits in terms of driving equality. Yet for so many we do not live in an equal society. The Equality and Human Rights Commission recently said—this relates to the pandemic—that pregnancy and maternity discrimination is the “most urgent and immediate” threat to equality. We should seek to correct this. The fact that we measure pay gap, employment gap, educational attainment and a whole set of other metrics shows us that our society is not equal.

I have been contacted by women and men who asked why the word “woman” is in the Explanatory Notes and not the Bill. I will be clear: I think the word “woman” and variations of it should be used in this Bill.

Language is important. I have always said that language is the dress of thought. As we know, the specific language used in legislation is incredibly important. It has far-reaching consequences. It is about providing rights and protection and it is our duty to find the balance in that.

I have spent most of my life fighting for inclusion for everyone that society chooses to label as different. I have spent most of my life being othered by language, attitude and a lack of physical access. Growing up, I was called handicapped or a crippled child; luckily, there has been an evolution in that language. Perhaps we need to find a new form of language to include those who feel othered, but it must not be at the expense of the word “woman”.

One thing I am certain of is that many in your Lordships’ Chamber, and those who have a different view from mine on the use of language, want to stop the denigration of women. Excluding the word “woman” from this Bill and other potential legislation does not help the cause of equality for everyone or anyone.

Similarly, we don’t know whether Baron Adonis heard Lord Pannick QC – who probably knows a tad more law than Baron Adonis – explain that:

On the language of the Bill, Parliament has often referred to the person who gives birth to a child as a woman and, indeed, a mother. Examples have already been given and I add one—Section 33(1) of the Human Fertilisation and Embryology Act 2008 defines a “mother” as:

“The woman who is carrying or has carried a child”.

However, your Lordships should recognise that the noble Baroness, Lady Jones of Moulsecoomb, was correct to point out that there are trans men, who were born female, who have given birth. One brought legal proceedings in the Court of Appeal last year. A judgment was given, in which noble Lords may be interested, by the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, in the McConnell case.

The Lord Chief Justice explained that the claimant had been registered at birth as female, but had transitioned to live in the male gender and had received a gender recognition certificate under the Gender Recognition Act 2004, stating that his gender is male. He then underwent artificial insemination, became pregnant and gave birth to a child. He brought legal proceedings complaining that the child’s birth certificate recorded him as the mother. He said that, because he had transitioned, he should be recorded as the father or as a parent. The Court of Appeal rejected his complaint and said that recording him as the mother was not a breach of his human rights.

The Lord Chief Justice said that, as a matter of common law and under the legislation governing the registration of births, the person who gave birth to a child is the mother, and the Supreme Court dismissed an application for permission to appeal. In light of that judgment, I do not think that there are any legal difficulties in referring to mothers or women in the Bill. The mother of Parliaments, in doing that, would be showing no disrespect to trans men.

Whether or not he heard any of the above, Baron Adonis was not chastened and, the following morning, he doubled-down by accusing Lord Hunt of being ‘mystifying’, and then asserting that he will not be silenced, even though he clearly knows very little about the subject on which he has so publicly pontificated, and now wishes to be non-silent about.

You’d think this was enough testosterone-fuelled idiocy for one week, but no! Later on Tuesday, another ennobled scrotum-owner, Lord Michael Cashman of Limehouse, felt compelled to join ‘the debate’, even though (by his own admission) he hadn’t attended (or possibly even listened to) any of Monday’s actual debate in the House of Lords. That evening, he tweeted: “I wasn’t present for the debate yesterday in the House of Lords but I am deeply worried by the wilful and blatant misrepresentation and defamation of trans-women. As someone who believes in equality I can never sacrifice the rights of others in order to maintain my own. Equality.”

As a member of the House of Lords, Baron Cashman has unhindered access to the Hansard record of debates, which is published overnight. So, even though he did not attend Monday’s debate, he could – and arguably should – have read the Hansard before tweeting his ‘deep worries’ about it more than 24 hours later. On Twitter, I asked Baron Cashman for a column reference. He hasn’t replied, obviously, but if and when he gets around to reading the Hansard he will find that there was no misrepresentation or defamation of trans-women – wilful or otherwise – during Monday’s debate, not least because the words ‘trans-woman’ and ‘trans-women’ were not used once by anyone. And it’s hard to be defamed if you’re not even named. Noddy and Big Ears were also not defamed during the debate.

Defamation is a big word, even for an ennobled scrotum-owner, so it may be that we will see some kind of legal move on the part of Baron Cashman that will reveal whose rights are being sacrificed, and by whom. Because I imagine that, just like Baron Adonis, Baron Cashman will not be silenced.

Oh, and – at some point – Baron Adonis blocked me on Twitter. Look at me, I’m crying.

Fortunately for the Barons, there is no need for them to worry their follicly challenged heads. The Ministerial & other Maternity Allowances Bill really is just about pregnant women, new mothers and their maternity leave. Scrotum-owners just have to get over it.

Update: So, the speech so haughtily dismissed by Baron Adonis as “ludicrous” turned out to be the pivotal one that, backed by the Baron’s own party leadership, led to an embarrassing retreat by the Government. And to this classic BBC headline.

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Employment Tribunals: The Times they are a-changin’

Yes, as you will know unless you are spending #Lockdown3 on Mars, on Monday the Times newspaper and its Investigations Editor Dominic Kennedy went Back to the Future of 2011, with not one but four articles straight out of the Adrian Beecroft playbook. Yes, the Thunderer has ‘discovered’ that not every Employment Judge learnt their trade at the Institute for Economic Affairs, and – shock horror! – has even found two – TWO!!! – weak claims from the last three or four years that Employment Tribunals rightly dismissed. And all this for the annual salary of an Investigations Editor.

I don’t get paid anything like the salary of an Investigations Editor – and I’m writing these words pro bono – so in this blog I’m not going to respond to all four articles (employment barrister Jason Braier has done a very good job on the one in which the Times sets out its favoured options – not all of them entirely loopy, it has to be said – for reform of the ET system). All you’re getting here is my random thoughts – paragraph by tedious paragraph – on the pathetically one-sided opinion piece masquerading as objective journalism, in which Dominic Kennedy sets out what we must regard as the thesis of whoever it was who fed him their garbage.

Tribunal system chaos: No experience necessary to be a judge in hearings free-for-all

Inexperienced judges who have never heard a case have been hired to clear an avalanche of employment claims from sacked and aggrieved workers.

Comment: Gosh, tell me more, Dominic.

Trade union and town hall lawyers are among 59 new faces judging cases at tribunals, where battles can cost millions of pounds in compensation and legal bills. In the biggest simultaneous recruitment of judges for nearly 400 years, appointees are being hired at annual salaries of £113,000.

Comment: Trade unions! Boo! Town halls! Boo! 400 years? Are we sure it’s not 500 years? Just don’t ask what the annual salary of an Investigations Editor is. As for “millions of pounds in compensation”, in 2019/20 the median ET award for race discrimination was £8,040; for age discrimination it was £11,791; for disability discrimination it was £13,000; and for sex discrimination it was £14,073. There are also not many such awards: in 2019/20, there were just 28 awards for race discrimination, 71 for disability discrimination, 10 for age discrimination, and 46 for sex discrimination. Substantially larger awards are extremely rare: the last time there was a discrimination award of more than £1 million was in 2015/16.

An investigation by The Times shows that the tribunal system is in chaos with a record backlog of 40,000 cases. The average waiting time from a case being received to its conclusion now drags on for 39 weeks.

Comment: It didn’t require an investigation by the Times or any other newspaper to show that the ET system currently has a backlog of 44,479 (single) claims/cases, as of 27 December, because the figure has been freely available on the gov.uk website since 14 January. And the ‘average waiting time’ figure of 39 weeks has been freely available, as part of the most recent set of quarterly ET statistics, since 10 December. And here’s a chart, putting that 39 weeks figure in context.

Employment judges appear to have been making a power grab, telling law chiefs that they should hear all equality cases, not just workplace disputes.

Comment: A power grab! How thrilling. *gets more popcorn*

Even employers who win their cases must expect to lose out financially every time they receive a claim for discrimination because the system is stacked against them. Judges rarely reject equality cases without a full hearing and there is usually no way to recover costs from the losing side.

Comment: This assertion that the ET system is stacked against employers is no more than subjective opinion, unsupported by any actual evidence of the kind you might expect to have been unearthed by an ‘investigation’ by a major newspaper. One could just as easily assert – many people do – that the system is stacked against claimants, all but a handful of whom can only dream of making claims costing their (no doubt former) employer “millions of pounds in legal bills”. And we’ve been waiting since 1785 for the Times to propose a model system for resolving legal disputes that is above and beyond the odd complaint from one side or another.

Tribunals are struggling to cope with a surge in demand since the Supreme Court ruled in 2017 that the fees to bring cases were set at a level which was unlawful because it denied access to justice. The resulting free-for-all has seen claims pouring in at more than double the rate before charges were abolished.

Comment: Well, yes, it is hardly news that, at least until late 2019, by which time most if not all of the “59 new faces” had come on stream, the ET system struggled to cope with the inevitable rise in claim numbers that followed the July 2017 ruling of the Supreme Court (that the justice-denying fees regime introduced in July 2013 was unlawful). And the unlawfulness of that fees regime is entirely the fault of incompetent government ministers, who – cheered on by the Times – repeatedly ignored warnings from low paid idiots like me that the hefty fees they were proposing were, well, unlawful.

Furthermore, that the ET system initially struggled to cope is also the fault of incompetent government ministers, who – having gleefully slashed the system’s judicial, staff and other resources during the era of fees – were laggardly in approving the clearly necessary reversal of those budget cuts.

Finally, as the following chart shows, while the number of new claims is indeed “more than double the rate before [fees] were abolished” (the green bar), it is still well below the rate before fees were introduced in 2013 (the red bar), and was actually falling slightly before the onset of Covid19 led to a new rise in claims.

The rise has been almost entirely fuelled by unrepresented claimants rather than those whose cases have been brought by lawyers or trade unions. While some have merit, others seem extraordinary. Cases employers have recently [sic] had to defend include the dismissal of a van driver who called his young female colleague an “ugly pikey”. He complained that his sacking was sexual discrimination. In another, a Chinese man demanded £781,000 for failing to get a security job, claiming that he was racially discriminated against for liking table tennis.

Comment: This paragraph contains the only two case examples in the entire article. Yet neither case justifies the main thrust of the article and its contentious headline. For, in the (not-so-recent) case of the ‘van driver’, the ET claim was made in January 2017 and heard by an ET in February 2018, long before the recruitment of the “59 new faces” that causes the Times such concern. Contrary to the impression given by the paragraph’s opening sentence, this claimant was legally represented at the hearing, and it is worth noting that he would have paid fees of £1,200 to pursue his claim. Similarly, in the case of the “Chinese man” (actually a British man), the ET claim was made in July 2018, and was heard in June 2019 by an EJ who has sat as an EJ since at least 2013. Both claims were dismissed, which could be seen as the ET system working as intended.

At this point the article includes a chart showing how the backlog of outstanding (single) claims fell both before and during the era of fees – when the number of new claims was a fraction of the pre-fees level – and has since risen to exceed the 2010 peak that followed the 2008 financial crisis and consequent economic recession. And in that chart we can actually see the impact on the backlog of the extra “59 new faces” decried by the Times (annotation added by me).

Indeed, based on the HMCTS weekly data for early March 2020, the backlog was then falling at a rate of about 7,500 per year – enough to return the backlog to its late 2017 level within two years. Aided by the modest decline in new case numbers already identified, above, this turnaround was largely thanks to those “59 new faces” that the Investigations Editor bores on about.

But then Covid 19 hit.

To cope with the extra workload, rather than streamlining its procedures or throwing out weaker cases, the tribunals have embarked on the mass hiring of judges, increasing their annual salary bill by nearly £6 million. To fill so many new posts, the bar was lowered on the standards demanded of recruits, opening the contest for the first time to candidates without judicial experience.

Comment: The ET system’s budget for 2020/21 was provisionally £71m. So, speaking as a taxpayer, “nearly £6m” (59 x £113K) to deal with “claims pouring in at more than double the rate before [fees] were abolished” seems like quite good value to me.

As for the ‘bar being lowered’, the Times does not present a single shred of evidence of poor decision-making by the “59 new faces”. As noted above, only two case examples are cited in the entire article, and both were heard by EJs of long standing. For all we know, the “59 new faces” might be making better decisions than their supposedly more experienced peers. Maybe the Times should, you know, do an investigation?

Previously, full-time judges were chosen from the ranks of part-time judges who would have to hear cases for about 30 days a year. “In the latest round that wasn’t a requirement,” a judicial source told the Times. “Some people have been appointed who have never sat before. It was certainly a departure. It is quite a stretch for somebody to be thrown in immediately as a full-time judge.”

Comment: Heaven forbid that the Ministry of Justice should do something slightly different to what it’s done for the last 400 years, in order to deal – a little more rapidly than its usual speed of a dead snail – with a crisis of its own making. And how do we know that this ‘judicial source’ isn’t just some bitter old piece of dead wood with a chip on their shoulder?

Nearly half the new recruits have no judicial experience on brief biographies issued by the Ministry of Justice. A spokeswoman for the judiciary said: “Where appointments are made without pre-judicial experience candidates will have met the selection criteria with material equal to that of their judicial colleagues. Regardless of previous background all judges receive extensive, high-quality training incorporating local orientation and induction training as well as a two-day cross- jurisdictional course for all new judges. In addition, all judges complete an annual mandatory two-day course.”

Comment: Once again for those at the back, there is not a shred of evidence – in this ludicrous Times article or elsewhere – of poor decision-making by the “59 new faces”.

Employment tribunals were created by Tony Blair to replace industrial tribunals. They now hear more than 90 types of case, including complaints about unauthorised deductions from wages, breaches of working hours limits, unfair dismissal and discrimination.

Comment: That’s right, when you’re really struggling to make your case, just throw in the name of someone universally reviled. Works every time – if your readership left their brains at the golf club. This is just silly.

Also, as any fule kno, Tony Blair did not ‘create’ Employment Tribunals. He just renamed what were previously known as Industrial Tribunals. That’s the kind of ‘modern and cost-free’ thing that New Labour did.

Discrimination cases take longer to hear than other cases and even the Council of Employment Judges, representing most judges, told the Law Commission that “sometimes it is fair criticism that too much time is given” to equalities issues.

Comment: Oh no, not the Council of Employment Judges! (As you can probably tell, my will to live is slipping away now.)

Guided by rulings from the upper courts, employment judges are reluctant to weed out weaker cases without a hearing, although this would reduce the workload. Employment Judge Russell told East London Employment Tribunal in 2019: “Those occasions on which a strike-out should succeed before the full facts have been established are rare, particularly so where the claim is one of discrimination.”

Comment: Apparently, the Times wants EJs to throw cases out before they’ve ascertained whether they are weak, or not. No, me neither.

Judges may also allow irrelevant evidence to be heard, dragging out cases. Employment Judge Goodman concluded a six-day discrimination case at London Central Employment Tribunal last year by saying that it had involved 2,500 pages in evidence bundles and much else that did “not directly concern the 12 allegations of detriment”.

Comment: Two cases, two comments by two judges. How long did this Times investigation take? But yeah, let’s scrap Employment Tribunals.

David Cameron doubled the qualification period for unfair dismissal from one to two years in employment. Lawyers warned that this might incentivise sacked workers to claim instead for discrimination or whistleblowing because employees retained the right to bring such claims from their first day at work. The latter cases take longer to hear than unfair dismissals.

Comment: Were those trade union lawyers? Or town hall lawyers? Have any of them since become one of the “59 new faces”? One minute, lawyers are bad, and the next minute they’re credible and quotable. It’s so hard to keep up.

Several claimants who brought discrimination cases and lost have told the Times that they genuinely believed they had been unfairly dismissed and would have claimed for that if the qualification time had been shorter.

Comment: Several people have told me that they genuinely believe that the Times is a paper of record.

Many employers settle discrimination cases out of court rather than pay lawyers and risk reputational damage. Latest figures show that while 22 per cent of all tribunal cases result in early settlements negotiated by the conciliation service Acas, that rises to 46 per cent of sexual orientation claims, 41 per cent for disability and 36 per cent for sex discrimination.

Comment: Tribunal statistics may not mean what you think they mean. And, if you’re the Investigations Editor at the Times, they definitely don’t mean what you think they mean.

Employers are vulnerable to law suits launched to taint their image. Employment Judge Crosfill told East London Employment Tribunal in 2019: “Claims can be brought purely for the purpose of embarrassing another party.”

Comment: Show me a legal system for resolving disputes anywhere in the world that isn’t vulnerable to such action.

Employment judges have been seeking to expand their empire by requesting powers to hear all cases brought under equality law including disputes about goods, services, education and housing which are currently heard by county courts. The Council of Employment Judges formally pointed out to the Law Commission, which considers reforms, that they regarded themselves as “very experienced with equalities issues. Disability, for example. We are experienced in making disability work at the workplace, learning what disabled people can do, with reasonable adjustments. Think Paralympics. That experience is portable to other areas of equalities litigation.”

Comment: First Tony Blair, now the Paralympics.

The move raises the prospect that, as with employment issues, claimants could launch claims without having to pay the other side’s costs if they lose, resulting in a surge in complaints of discrimination against shops, landlords, hospitals, schools and universities.

Comment: On the other hand, this article raises no prospect of Dominic Kennedy winning an award for investigative journalism. Who knows, we might even see a repeat of what happened the last time I challenged an article in the Times about Employment Tribunals.

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Binary arithmetic

News that the global Covid19 lockdown has led to two pandas in Hong Kong Zoo mating for the first time in ten years seems as good a reason as any for me to blog, for the first time, about sex. Or, more accurately, about sex and gender.

The ongoing and often toxic debate around sex and gender can feel intimidatingly complex and difficult to understand. So complex, indeed, that it is easy to conclude you need a PhD in human biology or Queer Theory, or both, to venture even just a mild opinion on the matter. And, when I say toxic, I mean toxic. Which is partly why I’ve not blogged about the issue before now. As Helen Lewis wrote in the New Statesman in 2018:

Most people have taken one look at the current debate over gender and decided to read [or write] about something less inflammatory, like the Israel-Palestine conflict.

But having read and thought about it (quite) a bit more, I’m not sure it is that complex, really. And I suspect the impression that it is complex serves the interests of the intellectually incurious people who think they can win a debate on the subject by shouting “clownfish”, “bimodal distribution”, or simply “there is no debate”.

Yet there is a debate to be had. Boris Johnson and his Cabinet of Fools are in power, and those undemocratically chanting “No Debate!” may come to find themselves on the wrong side of that argument. On the contrary, we desperately need to have a debate, as that is the only way we will identify and implement equitable and sustainable public policy solutions to the challenges faced by people who identify as trans. And those challenges are real.

At the same time, the sex-based oppression, violence and discrimination experienced by women is just as real (*understatement klaxon!*). Modern societies have made considerable progress in addressing this long-standing and acute inequality in the life experience of women and men, but there is still a very, very long way to go. So any debate about sex and gender – including how to address the challenges faced by trans people – needs to respect and be informed by this context. In particular, it needs to respect women’s hard-fought rights to single sex spaces. If the ever-growing number of trans identities are ‘valid’, then so are decades (if not centuries) of rape, domestic violence and murder statistics.

I’m not usually regarded as much of an optimist, but on this I do think it should be well within our capacity to navigate the potential tensions, and find equitable and sustainable policy solutions (which means they have to be accepted if not supported by a majority of the general population). If we can put a (cis)man on the moon, etc etc. I just think we need to be clear and honest about some basic facts of life.

Of course, it doesn’t actually matter what I think. I have no particular expertise on these matters (probably the main reason why I have not blogged about them before). And I have even less influence. I certainly don’t have anything ‘new’ to say that would add to what’s already been said by others. But as the barrister Allison Bailey noted recently, in the wake of trans activists slandering the world’s favourite author, JK Rowling, by publicly suggesting she is a sexual predator and child abuser:

For those of you on the sidelines, your silence will not protect you (but it will shame you). Speak up & stand with us.

So what follows is simply what I think are the basic, science-based facts that should be the starting point of the debate that we so clearly need to have. As I see it, we can agree on these facts, and then start to look for sustainable policy solutions to the evident conflict between the rights of women, and the rights of transwomen (men don’t appear to be too troubled one way or the other by the activities or rights of transmen). Or we can deny these facts, and continue to go nowhere fast (just ever more toxically).

Fact 1: Human biological sex is real, and matters. And, while biologically complex, it is binary: it is not a spectrum, and there are only two human sexesnot six (or ten). In the words of the blogger Andrew R (@excelpope): “obviously there is a huge amount of biological complexity here, which makes it easy to obfuscate the issue, but fundamentally, if you want a baby you need one person from each sex. You can talk about gametes, chromosomes and DNA until the cows come home, but if you start with two people from the same sex you will still never get a baby.”

OK, you’re not interested in making a baby, especially with me. (That’s fine, by the way – I’ve already fathered two more babies than I originally intended). But, were it not for biological sex, none of us would be here to have this debate.

So, sex is not “an ideological concept designed to exclude trans people from spaces”, and is generally observed and recorded, not assigned, at birth. If you disagree with this, then presumably you can explain how the sex of baby elephants is assigned when there are no elephant doctors to do the assigning. And, if you insist that we are very different to elephants – yet somehow similar to clownfish or that lone Komodo dragon in Chester Zoo – then try chimpanzees, with whom we share 98.8% of our DNA. There are no chimp doctors, either.

Not unrelated to the baby-making thing, sex is the basis for a great deal of oppression, violence and discrimination. Male humans (boys and men) tend to expect to be able to do and get whatever they want, even if that means disadvantage or even violence to female humans (girls and women). It’s the patriarchy, stupid. Or, as someone else has said, “empirically, penises have done bad”.

Yeah, I know, #NotAllPenises.

Fact 2: The existence of (very rare) Differences of Sex Development (DSDs) – some diagnosed at birth (about 0.02% of newborns are diagnosed with a DSD), but others only in later life – and of intersex people is entirely consistent with sex being binary. It is not evidence of sex being a spectrum. As the developmental biologist Dr Emma Hilton says,“DSDs are variations of anatomy, not variations of sex”. And no, intersex people are not as common as people with red hair, whatever Amnesty International says.

Fact 3: Along with other mammals, humans cannot change their sex. They can change the appearance of their sex, through surgery and/or the taking of hormones. However, most of those who identify as transwomen are, and evidently intend to stay, male-bodied. Indeed, not a few seem inordinately proud of their ‘girl dick’. But putting some glitter in your beard as you trawl the internet for PIV sex (look it up) does not make you a lesbian. Not to beat about the bush (no pun intended), but only a man could genuinely think it does.

(That ‘genuinely’ is important, btw, as it is clear there is an awful lot of groupthink going on in this debate – TWAW, and Line 3 is definitely the same length as the line on the left, even though everyone can see it is shorter.)

Whatever, a modern, liberal society should accept and make appropriate legal provision for those who do change the appearance of their sex, as well as for those who simply believe that they have changed their sex by putting on lipstick, just as it should for those who are gay, lesbian, disabled, or female, and those who believe that there is an invisible, bearded guy living in the sky who created Earth in seven days. But the fact that some simpler species such as clownfish can change sex (in one direction only, as it happens), and that (female) Komodo dragons can produce offspring by parthenogenesis, adds absolutely nothing to this debate.

Fact 4: Despite the words often being used interchangeably, gender is not the same as sex. As to what gender is, there are any number of theories, but one is that it is a combination of (a) our own innate perception of being male or female (our ‘gender identity’), and (b) societal expectations of how we should look and behave, based on our sex (our ‘gender role’, or just ‘gender’). However, there is no scientific consensus that (a) even exists, outside the imagination of gender ideologists (who seem to me to be making it up as they go along). And (b) is simply a social construct, which therefore varies from region to region, and changes over time.

Or maybe gender is something else. As Andrew R (@excelpope) has suggested – possibly in jest – maybe gender was invented by bureaucrats in the 1960s to stop men answering “Yes please!” to the sex question on forms. But whatever gender is, it is not the same as sex, and sex is what matters. Women have been systematically discriminated against, raped and murdered by men for thousands of years because of their sex, not because of any ‘innate sense of their gender identity’ that they may or may not have. Put simply, if sex doesn’t matter, then nor do sexism and misogyny.

Of course, gender roles are problematic, as historically much if not all of the ‘social construct’ was constructed (mostly by men) to reinforce the sex-based roles of men and women (and of boys and girls), and so sustain the patriarchy. Modern societies have made much progress in breaking down the most harmful aspects of these gender stereotypes (and especially their coercive imposition), but they persist and indeed remain attractive, to a greater or lesser degree, to a great many people. And, generally speaking, that’s OK, even if it sometimes feels to me as if we’ve still not escaped the sad sexism and malevolent misogyny of the 1970s (when I had the misfortune to grow up).

Similarly, it’s OK, if you have a beard and a penis, to believe that you are woman, and that you are single-handedly broadening the bandwidth of ‘woman’ to include people with a beard and a penis who like to tinker with car engines. You just can’t expect anyone outside your narcissistic cult to share your belief, let alone expect the law to compel them to do so. In any case, maybe your energy would be better spent trying to broaden the definition of ‘man’ to include people with a beard and a penis who like to wear skirts, lipstick and a lot of bangles. That would seem to me to be a less scientifically-challenged endeavour.

Fact 5: Transwomen are not women, and transmen are not men. They cannot be, because humans cannot change sex (see Fact 3). They are transwomen, and transmen (even if they have had surgery and/or taken hormones to change the appearance of their sex). And there’s absolutely nothing ‘wrong’ with being a transwoman or transman.

Which means a modern, liberal society should accept and make appropriate legal and other provision for the specific needs of transwomen and transmen, to ensure they can live their lives free from discrimination and abuse. As already noted, we accept and make appropriate legal and other provision for people who believe that some invisible guy who lives in the sky created the Earth in seven days, and will stop us getting cancer as long as we go to church and sing a few songs every Sunday. So, we can do the same for men who believe that they are a woman, and vice versa.

To take a mundane but important example, in workplaces and other public spaces, transwomen and transmen should not have to use communal, single sex toilet, shower or changing facilities in which they might feel uncomfortable or unsafe. But that does not mean all such communal single sex facilities should be redesignated as gender-neutral. It simply means there should always be adequate provision of gender-neutral (or single user) facilities, in addition to single sex communal facilities for women and men.

Many businesses and organisations have ticked the ‘Stonewall Law’ box simply by spending £15 on changing the signs on the doors of their single sex facilities. But – doh! – women and girls can’t use urinals. And why should women and girls have to use communal, gender-neutral facilities in which they might feel uncomfortable or unsafe? Why should the feelings of a numerically tiny group of mostly male-bodied and male-socialised people trump those of 51% of the population? As lawyer Naomi Cunningham says on the Legal Feminist blog:

What some male commentators on this subject fail to grasp is what a rigorous training in fear women receive from an early age. We are taught that men are a source of danger. We are told it is our responsibility to keep ourselves safe from the ever-present risk of male violence. We learn to limit our freedoms. We try not to be out alone late at night. We learn to be alert to the possibility of being followed; not to make eye contact; to shut down drunken attempts to chat us up without provoking male rage; to walk in the middle of the road so that it’s harder to ambush us from the shadows; to conduct a lightning risk assessment of every other passenger on the night bus; to clutch our keys in one hand in case we need a weapon; to carry a pepper spray, or a personal alarm.

We are systematically trained in fear.

And then we are told that we must lay aside the fears we have obediently learned at a moment’s notice if a person with a male body asserts a female identity. Well, fear doesn’t work like that.

Sure, it will cost businesses and organisations more than £15 to ensure adequate provision of gender-neutral or single user facilities, alongside communal single sex facilities, to provide for the needs of the less than 1% of the population that identifies as trans. But doing the right thing is rarely the cheapest option.

Similarly, male-bodied transwomen should not be incarcerated alongside female prisoners, and transwomen should not be playing in women’s sport: it’s potentially dangerous to their female opponents, in contact sports such as rugby, but more importantly it’s unfair to the women left out of the teams/crews or denied a place on the medal rostrum.

There’s a simple reason why you hear about transwomen playing in women’s rugby teams, for example, but never about transmen playing in men’s rugby teams. It’s the very reason we have ‘women’s sport’. As sports scientist Ross Tucker explains, if we didn’t, “the champion in every single event would be male. In fact, the top 3,000 (at least) would be. That’s not how it’s meant to be.”

Oh, and men do not get pregnant – if they did, the world would look very different, and we almost certainly wouldn’t be having this debate. Some transmen get pregnant, but only if (and because) they have retained the necessary (i.e. female) reproductive organs.

Finally, if you believe that TWAW because ‘some people are born in the wrong body’, you should maybe read this 20-year-old article. A long and disturbing read, it describes the phenomenon of people who hack off their own (perfectly healthy) limbs – or persuade a surgeon to do so somewhat less violently – because “I have always felt I should be an amputee” or “I have a desire to be myself, as I ‘know’ or ‘feel’ myself to be.” This once extremely rare ‘identity disorder’, apotemnophilia, has become vastly more common since – you guessed it – the invention of the internet, where hundreds of apotemnophiles have now formed online communities, in which they share images of amputees (including amputee porn), affirm each other’s beliefs and desires, and discuss how best to procure a surgical amputation. Some apotemnophiles trace the onset of their absolute belief that they should have fewer than the four limbs they were born with back to when they were a young child. Sound familiar?

Fact 6: Er … there is no Fact 6. To my mind, five simple, science-based facts are all you need to start working on solutions. It’s not actually necessary to delve into “the cis privilege of white, middle-class feminists” (to quote one white, middle-class and ostensibly feminist former colleague of mine with whom I strongly disagreed on this issue), acquire a detailed knowledge of 17-beta-hydroxysteroid dehydrogenase deficiency, or speculate about the prevalence of autogynephilia and ‘Pornhub culture’ among transwomen. Except that, as journalist Jo Bartosch was one of the first to point out, the latter might actually be highly relevant – even central – to what’s going on:

In this era of apparent sexual freedom, the suggestion that sexual arousal might be the reason behind the rising numbers of people ‘coming out’ as transgender is still strictly verboten. Perhaps I’m a cynic, but to my mind kink is a more convincing explanation than the trapped female ‘souls’ that Layla Moran MP claims to be able to see.

But acknowledging the possible sexual driver for many of those who transition is directly at odds with the mainstream media narrative. Transgender women are almost always portrayed as victims, with late-transitioning white computer programmers in the Home Counties weaponising the deaths of Brazilian transsexuals to bolster their standing in the oppression stakes. This insistence of vulnerability plays into a sexist stereotype of femininity, and in my opinion is part of the fetish.

A case in point: self-styled ‘defender of extreme pornography’ and transgender activist Jane Fae has claimed that trans women are at risk from the likes of the allegedly ‘transphobic’ veteran broadcaster Jenni Murray. This is ludicrous. It is, after all, men who most often kill trans women.

Whatever, there’s certainly no need to start calling women ‘womxn’ or ‘menstruators’. As the Australian academic Petra Bueskens wrote in the wake of the furore over JK Rowling daring to suggest that transwomen are not women and that ‘woman’ is “not a pink brain, a liking for Jimmy Choos or any of the other sexist ideas now somehow touted as progressive”:

When Daniel Radcliffe repeats the nonsensical chant trans women are women, he’s not developing an argument, he’s reciting a mantra. Trans women are women is not an engaged reply. It is a mere arrangement of words, which presupposes a faith that cannot be questioned. To question it, we are told, causes harm—an assertion that transforms discussion into a thought crime. If questioning this orthodoxy is tantamount to abuse, then feminists and other dissenters have been gaslit out of the discussion before they can even enter it.

This is especially pernicious because feminists in the West have been fighting patriarchy for several hundred years, and we do not intend our cause to be derailed at the eleventh hour by an infinitesimal number of natal males, who have decided that they are women. Now, we are told, trans women are women, but natal females are menstruators. I can’t imagine what the suffragists would have made of this patently absurd turn of events.

If we are prepared to spend (quite a bit) more than £15.00, we can change society’s infrastructure (and laws) to meet the needs of the relatively small number of trans people, just as we have made some progress in doing so for, say, the much larger number of disabled people. When I was a kid, accessible facilities for people with a disability were practically unheard of, as were (gender-neutral) baby-changing facilities. Now, they are commonplace.

And before you shout “But disabled people are still discriminated against!”, I know they are (not least because my son is disabled). As are black and ethnic minority people, and women. So maybe Fact 6 is that, whatever changes we make to society’s infrastructure and laws, trans people will, sadly, continue to face a degree of discrimination and unfair treatment. Maybe eventually we’ll get to nirvana, but we’re not there yet.

This means that some trans people will have to assert their rights by, for example, bringing employment tribunal claims, just as all too many disabled and BAME people have to assert their rights at work by bringing employment tribunal claims for disability and race discrimination, and very large numbers of women have to assert theirs by bringing claims for sex or pregnancy/maternity discrimination, or unequal pay. Unfortunately, there is no magic, pink and powder blue-striped policy wand that government ministers can wave to make life trouble-free for everyone. For many people, life will sometimes involve serious struggles.

In my experience, women tend to understand this unfortunate ‘fact of life’, even if many activist transwomen (and their equally vocal male ‘allies’) appear not to. I refer you to Facts 1 and 3, above.

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