Statement Concerning the Scottish Courts Service

I have worked exceptionally hard over the last three years or so to promote equality within the Scottish Courts Service (SCS) as an unpaid volunteer member of their Equalities Advisory Group (EAG).

During this time, I took on many challenging subjects and in particular took a lot of time, outside of attending our regular meetings, to take forward additional work.  

I enjoyed this work and also looked forward to each of the meetings to which I contributed fully.  

Regretfully, I was told by Chair on Monday (17 February 2014) afternoon, that I was no longer welcome to be a member of the EAG.  

I am disappointed but to a certain extent, not surprised.    

It was not until I raised concerns recently about ongoing disability discrimination and transphobia, which were backed by evidence, that both Chair and the SCS management decided that I was no longer welcome.  

I tried repeatedly to raise these issues but felt that I was ignored.  

In particular, the SCS authorised the refurbishment of a court room in Dundee with scant regard to accessibility and more regard for financial expediency.  

Needless to say, I objected to this as it is not the manner in which our public services are meant to behave.  

It has subsequently been pointed out to me that as an EAG member I have no right to raise a grievance within the SCS and that the dignity at work policy does not apply to members of the EAG amongst other matters.  

In particular, it has also emerged that Chair has the right to remove members of the EAG.  

Raising a complain under the Equality Act is a protected act.  This means that a person raising a complain about disability discrimination and transphobia as I have done should not suffer any detriment for doing so.  

As a basic human right, everyone is entitled to have their dignity respected.  

Additionally, public bodies, such as the SCS, are required to apply the European Convention on Human Rights to all aspects of their work.   

Volunteer Development Scotland, together with the Scottish TUC, agreed a code of practice for organisations that work with Volunteers.  

The SCS does not subscribe to this code.  Amongst other things, the code states that:- 

Effective structures should be put in place to support and develop volunteers and the activities they undertake, and these should be fully considered and costed when services are planned and development.

 Volunteers and paid staff should be provided with opportunities to contribute to the development of volunteering policies and procedures.

 Volunteers, like paid staff, should be able to carry out their duties in safe, secure and healthy environments that are free from harassment, intimidation, bullying, violence and discrimination.

 All paid workers and volunteers should have access to appropriate training and development. 

There should be recognised machinery for the resolution of any problems between organisations and volunteers or between paid staff and volunteers. 

I was not told in advance that Chair intended to remove me from the EAG nor was I told about a secret letter that had been prepared and delivered to Chair by the SCS management. 

I was not given an opportunity to see this letter or address any of its contents. 

I was mislead as to the nature of this meeting. 

I was also accused of being "aggressive and threatening".  

My dignity was violated yesterday and I left our meeting in a distressed state.

At no stage have I ever been aggressive or threatening to anyone.  

I raised a complaint concerning the SCSs failure to address accessibility and transphobia.  I also stated that there was a problem with institutional discrimination.

I was victimised for doing so.

I was bullied by them.  

If the SCS had in place appropriate structures and machinery for addressing my concerns, I am sure that matters would not have gone this far.  Unfortunately, they do not.  

I am disappointed at the manner in which both Chair and the SCS have handled my complaints.  

I am also disappointed that it appears acceptable to unilaterally remove a member of the EAG, to write a secret letter about them and not provide any opportunity to answer its contents and then accuse someone like myself of being aggressive and threatening. 

I am now considering my position.  

A complaint has been made to the SCS about mondays meeting and the failure to address my concerns. 

We will wait and see what happens.  

I would welcome your support right now as it is a struggle to keep up the good fight on my own. 

This is even more difficult and distressing for me because I have multiple disabilities and I cannot come to terms with how this public body has behaved.

Yours for equality,

Daniel

Is it a crime to be Transgender - Yes, it is, according to the ScottishHigh Court

In the High Court in Scotland, a transgender man, was sentenced to 3 years probation and 240 hours community service.

The man was charged and convicted of obtaining sexual intimacy by fraud.

The man did not reveal his gender recognition history to two female partners. When it was discovered that he was biologically female a complaint was made to the Police and he was subsequently charged with obtaining sexual intimacy by fraud.

The man was reported to have been 21 at the time and at least one of his partners was believed to be 15.

In Scotland, the Crown Office and Procurator Fiscal Service (COPFS) is the responsible body for prosecuting crime.

The COPFS is meant to act in the public interest and the reasons behind a decision to prosecute or not to prosecute are generally private.

The COPFS in making a decision, is meant to follow what is known as the Prosecution Code.

In this present case, a decision to prosecute on a different charge could have been made. However, this was not done.

Likewise, a decision could have been taken not to prosecute.

Taking this into account the COPFS has left itself open to accusations of transphobia.

The Equality Act 2010 and The Human Rights Act 1998

The COPFS is a public authority and as such, is not meant to discriminate, has to promote equality of opportunity and also to foster good relations between individuals who share protected characteristics.

It is not clear to what extent, if any, these obligations extend to or apply to the particular decision making process concerning whether or not to prosecute or what charge to bring in the event of a decision being made to prosecute.

The Equality Act does not extend to judicial decision making.

The COPFS is a public authority for the purpose of the Human Rights Act and decisions made in respect of prosecutions should be made in accordance with the Convention Rights and other International Law obligations.

Questions that arise

A number of important questions have been raised as a consequence of this particular prosecution.

1.  If the decision to prosecute or not to prosecute, is made in private with no reasons having to be provided, how can we be assured that that decision makers were not influenced by prejudice?

2.  Alternatively, if a decision is not made out of prejudice, could ignorance of this issues be involved - perhaps a series of wrong or false assumptions having been made?

3.  If the COPFS sought to act in the public interest, and followed the Prosecution Code, did it take into account the effect on the accused and the wider LGBT community? For example, reduced confidence in the judicial system by LGBT people and or more specifically creating a climate of fear amongst transgender people that if they do no reveal their full history to potential partners, they will face prosecution?

 

Scotland’s national transgender equality charity, The Scottish Transgender Alliance (STA), based at the Equality Network, warned that

“the nature of this prosecution has seriously undermined trans people’s trust in the Scottish criminal justice system.”

Nathan Gale, of the STA, has sought an urgent meeting with the Lord Advocate. Gale said:

“I sincerely hope that COPFS will understand the seriousness of trans people’s fears and respond to our call to take urgent steps to address them.”

Prejudice already exists

Transgender people already face a climate of prejudice and a lack of understanding.

It is conceivable, even if it was not intended, that such a high profile prosecution of this sort, will fan the flames of prejudice and actually create a retrograde approach to transgender equality issues in the broadest sense.

It has become too easy for people to read something, such as the BBC reporting of this case - which referred to the man in his birth gender rather than in his chosen gender - to assume that being Transgender is not real or some other form of sexual deviance because of the criminal prosecution in this present case.

Other news reports have also discriminated in this way. In one article, the man was described as a "sex fraud woman...".

The phraseology and use of language here is ignorant and dangerous. 

It creates a public perception that being transgender is not real - where women or men seek to impersonate for sex.

It also creates the false impression that being transgender is criminal. 

If the BBC and other media outlets can openly discriminate in this way, then it will only encourage others to do so as well.

No right to privacy?

Another interesting argument that has been presented by the Equality Network / Scottish Transgender Alliance, is that this prosecution creates a public perception that Transgender people are not entitled to their privacy.

The right to privacy is an important human right.

There can be exceptions and where there is a legal exception it has to be necessary and proportionate.

The exception also has to be applied equally across the board and not single out a particular group for special attention; in other words, any law permitting the exception should not discriminate.

A necessary and proportionate exception would include requiring someone who works with either Children or vulnerable adults to be a member of the Protection of Vulnerable Groups (PVG) scheme and have a Criminal Records Bureaux check. 

The above example of an exception, would apply equally to everyone.  It would not single out transgender people for special attention.

So why has the criminal law singled out a trans man for special attention in this case? 

Consider this hypothetical comparator, would a non transgender heterosexual male face prosecution for failing to reveal to his partner(s) his particular sexual history?

Similarly, would this hypothetical male also face prosecution for failing to reveal intimate details of his personal and private medical history to each and everyone of his partner(s)?

I believe that the answer to both questions is a resounding no!

Taking this into account, why then, should a transgender male, not be afforded the same right to privacy as the hypothetical comparator described above?

Different treatment for transgender people

This Equality Network highlights the differential treatment in this case by using a tangible comparator; 

"As a comparative example, a 31 year old man who had sex with a 14 year old girl who had claimed to be over 16 was prosecuted at the Sheriff Court and also sentenced to 240 hours of community service, whereas Wilson’s case was prosecuted at the High Court, reserved for the most serious offences. This lends weight to the STA’s claim that Wilson’s fraud prosecution was 'a completely inappropriate charge.' "

In my view, this is where the COPFS fails the public interest test.

As the prosecuting authority, it is bound to operate the same standard, whether gay or straight, trans or non trans.

It is not in the public interest to single out one particular group for special attention.

It is also not in the public interest to single out trans men or trans women for prosecution because they expect the same degree of privacy regarding their private lives as anyone else.

The prosecutor should also know, or ought to know that transgender people may feel isolated and marginalised and not know how or where to access support services.

These issues and others, such as the negative impact of the prosecution, should have formed part of the COPFS thinking in applying the Prosecution Code and then in their decision to prosecute. 

Questions - but for an appeal

I was not party to the full details of this particular case.

Hypothetically, if an appeal was raised, the Court could be asked to answer some of the questions posed by this article, for example the privacy issue.

A full analysis of the general law is outside the scope of this particular article, but other commentators have suggested that the offence of obtaining sexual intimacy by fraud may not actually exist as part of the Scottish statutory sexual offenses framework.

Stephen Whittle, Professor of Equalities Law at Manchester Metropolitan University, analyses this point in his blog article entitled "Chris Wilson: Convicted because of his Clothes"

If this is the case, and the COPFS is further challenged, it may offer another avenue for appeal.

If there is no offence, then there cannot be a prosecution.

In this case, one would have to ask, why did both the COPFS and the High Court allow a prosecution? Ignorance of the issues or prejudice?

There are also questions about the cross over between equality / non discrimination law and the criminal law.

Usually, in these cases, the Scottish Parliament has passed new legislation to rectify problems as and when they do arise. This has been the case with sexual offences to date, for example, making them gender neutral.

This does not mean that all of Scots criminal law has been updated; just the more obvious examples.

The majority of the criminal common law predates our non discrimination law and therefore it could be argued that existing criminal law - at common law at least - has to be reviewed again.

However, these are mute points.

There is one major stumbling block to any appeal here - the accused pled guilty.

The guilty plea has provided the COPFS and the Court with the perfect cover, even if mistakes have been made in this case.

Unless an exception can be made, and it is not beyond the realm of possibility, there will be no appeal and the questions posed concerning the legitimacy of the charge and a Transgender man's right to sexual privacy will go unanswered.

Other legal options available

It is still possible for the matter to return to Court. 

The Lord Advocate, could ask the Court to determine to true application of the criminal law in relation to a transgender people's right to privacy, taking into account the now developed jurisprudence of both Human Rights and Equality Law. 

This procedure, is known as a Lord Advocate's Reference.   

As a matter of Civil Law, anyone who now feels that the law discriminates against them, is entitled to seek as judicial review. 

In these circumstances, it may be possible, to ask the Court of Session - Scotland's Civil Supreme Court - to issue a special order known as a "declarator of incompatibility". 

If such an order were issued, the Scottish Government and possibly the Lord Advocate, would be required to act. 

Lessons for the future

Whatever happens in the future, the COPFS and Police will have lessons to learn from this case.

The Equality Network has been vocal in its criticism of the COPFS in this case and rightly so.

A petition has also been presented to the COPFS and a meeting sought with the Lord Advocate about the issues raised as a consequence of this prosecution.

In my view, this prosecution has set a dangerous precedent - in effect making it a crime to be Transgender.

Everyone needs to pee - except transgender people in Arizona apparently

With thanks to Gordon Ellis for preparing this short commentary on a story that is currently making the rounds concerning why transgender people need to go to the bathroom.

"The Independent (20 March) reports that Equality activists are outraged as Arizona considers banning transgender people from using public toilets not designated for their birth sex.

The proposal comes less than a month after the city of Phoenix passed a human rights ordinance prohibiting gender identity discrimination in public accommodations.
The prohibition of gender identity discrimination appears to be a positive step in addressing an issue which crosses the Atlantic to the UK, but the illogical proposal to ban transgender people from using public toilets, seems to totally contradict the ordinance from Phoenix.
The Republican proposer, is nailing his colours to the mast and creating an opportunity for the national debate which seems to be taking place in the USA to be aired in the legislature.
One must hope that common sense prevails, and the “Land of the Free” lives up to its name.
From a UK equality perspective, it is good that issues such as this are being aired in our media, and in a relatively supportive way.
It is however, indicative of a fair way still to go on this, and many other equality issues. With absolutely no irony at all, I read another media report, that in Pakistan, all public forms which require to be completed now have three boxes for completion, male female or transgender."

This has happened before

Sadly, this is not the first time that a story like this has hit the media.

Around two years ago, a similar issue was raised in the national media in the United Kingdom. In that case, a trans woman was accosted and complained against in a Sainsbury's supermarket for using the ladies toilets.

It was claimed that the trans woman should have used the disabled toilet.

Everyone needs to pee

First of all, everyone need to go to the bathroom.

It does not matter is you are male, female or transgender.

The difficulty is societal perception; we are obsessed with gender stereotypes, gender norms and most relevant, an automatic assumption of binary gender - male and female.

There is also an unfounded perception that because a transgender man or woman is using a gendered toilet in their acquired gender, that they are engaged in criminal, or more usually sexual, activity.

The Scottish Transgender Alliance is an organisation that campaigns for transgender equality and awareness in Scotland, elsewhere in the UK and also in Europe.  I tweeted about this story and this is what they had to say.

Equality law in Great Britain

The Equality Act requires public bodies, service providers and employers not to discriminate on grounds of gender reassignment. The protection in law extends to cover discrimination by association and perception.

In order to obtain full gender recognition in Great Britain, there is no actual requirement to undergo gender reassigned to surgery.

Many transgender people will want to live their life in their acquired gender. For some, it is a requirement, prior to approval for gender reassignment surgery.

This would not be a problem if we did not have an obsession with binary gender roles and by extension, binary gender toilets - male toilets and female toilets.

Transgender does not equate to being disabled

Transgender people are also not disabled because of their gender reassignment status.

There may be some form of disability arising from gender reassignment, for example, on grounds of mental health.

There is no reason therefore to ask someone to use an accessible toilet, or to deny the use of gendered - male or female - toilets.

Solutions

In many organisations, there are at least some, gender neutral toilets. In these circumstances, no one has a complaint.

The title of this article highlights the crux; transgender people need to pee too.

If peeing is criminal, then we will all be going to jail.