Civil service must return to impartiality and protection for all

Civil servants are expected to act with impartiality, integrity, honesty and objectivity, under the direction of Ministers and in compliance with the law. But the civil service’s approach to “trans inclusion” has been driven by partisan internal activist networks that promote Stonewall law. Many civil service departments have adopted a policy which defines a “refusal to accept” someone’s self-declared gender identity as transphobia.

This not only affects employment conditions and workplace culture for half a million civil servants, but also their decision-making, which in turn shapes policies across the country. 

Six-figure compensation for civil-service whistleblower

The Department for Culture, Media and Sport (DCMS) and the Department for Science, Innovation and Technology (DSIT) have settled the employment-tribunal claim of whistleblowing civil servant Eleanor Frances, agreeing to pay her £116,749. As part of the settlement the departments have committed to return to impartiality and to develop a new policy in relation to the protected characteristic of gender reassignment. 

Frances was told that if she objected to showering, changing or using the toilet with a male colleague, she could use alternative unisex accessible facilities. The policy also suggested that if staff objected to the presence of a male person in female facilities they could be disciplined for failing to support the gender identity of their colleague.

After raising concerns about the lawfulness of this policy, Frances says she was subjected to a sustained pattern of unfair treatment. She was given baseless negative performance feedback and stripped of her team and responsibilities. She resigned in 2023 and brought claims for discrimination on the grounds of philosophical belief, sex and disability, along with victimisation, protected disclosure detriment and unfair constructive dismissal, represented by Peter Daly and Akua Reindorf KC.

DCMS and DSIT have now agreed to pay her £116,749 and the Permanent Secretaries, Susannah Storey CB (DCMS) and Sarah Munby (DSIT), have agreed to issue a statement saying that their departments are working together to introduce a new policy on trans staff and are committed to ensuring the civil service is impartial. 

Transgender policies in the civil service

What are the policies that Eleanor Frances was concerned about, that are now being revised?

The Civil Service/ a:gender document is extraordinary. It starts with alarming and unreferenced statements, for example: “In 1981, the Harry Benjamin Institute estimated that 50% of the transsexual population died by their own hands by the age of 30.” It cited trans lobby group Press for Change as the source for the claim that “34% of those needing to change gender attempted suicide at least once”.

It also declared that “medical treatment to enable transsexual people to alter their bodies to match their core identity has been highly effective with around a 98% success rate”.

It came up with a spurious estimate that there could be between 7,800 and 17,880 “intersex” civil servants, based on a debunked claim that 1.7–4% of the world’s population is intersex. It embraced a wide range of novel gender identities, including gender-neutral, non-gender, non-binary, pan-gender, poly-gender, third gender, gender-queer and neutrois.

Concerning the Equality Act, it wrongly said that “failure to deal with a transsexual woman in the same manner as other women would be direct discrimination”. It directed civil servants with HR responsibilities that when staff declare themselves to be trans they should be able to use toilets and changing rooms “appropriate to their new gender role”. It suggested that this is a legal right attached to the protected characteristic of gender reassignment, saying: “it would be humiliating, inappropriate and undermining to expect a person in their acquired gender to use toilet facilities of their birth sex or indeed be restricted to the use of the accessible toilet.” 

It advised that “any continued objection or inappropriate comments” by work colleagues “should be seen as unreasonable (discriminatory) and should be met with communication, discussion and education before the situation gets out of hand. In this sometimes contentious area, transsexual employees are entitled to expect support from management”.

Similarly, the GEO guidance on recruiting and retaining staff published in 2015 said:

“A trans person should be free to select the facilities appropriate to the gender in which they present. For example, when a trans person starts to live in their acquired gender role on a full time basis they should be afforded the right to use the facilities appropriate to the acquired gender role.”

Sue Owen, who endorsed the a:gender document, also championed government departments signing up to the Stonewall Diversity Champions scheme and competing for a place on its index. She said in 2016: 

“Our aim is, of course, for all government organisations to improve the score they are awarded by Stonewall every year.”

She was at the time, and remained until 2022, on the board of trustees of the Center for Global Development, the think-tank that discriminated against Maya Forstater and argued in court that gender-critical beliefs were “not worthy of respect in a democratic society”.

In March 2019 the a:gender document was removed from the gov.uk website. In its place departments were told to take responsibility for developing their own policies, and to base their policies on a model provided by the Cabinet Office “working closely with a:gender and others”, and which would be circulated to departmental HR managers.

Meanwhile DCMS and other departments continued to pay thousands of pounds a year to be a member of the Stonewall Diversity Champions scheme. DCMS refused to release details of its application to the Workplace Equality Index scheme, saying that to do so would not be in the public interest and would “likely impact Stonewall’s confidence in the process of future discussions, and in addition, damage their commercial interests”. 

DCMS did eventually respond to a freedom-of-information request in 2022 with a copy of the model policy. Compared with the 2016 document, it had been toned down. But it still suggests that individuals who declare themselves to be transgender have the right to use opposite-sex facilities, and that colleagues who don’t accept gender identity should be disciplined. 

The policy promotes gender ideology, saying that:

• Gender identity is the personal sense of one’s own gender.
• To provide an inclusive and supportive workplace, the department must respect and support the gender identities and expressions of all its employees, regardless of how they identify.
• Refusing to accept a transgender person in their affirmed gender, by persistently referring to a trans woman as “he” or “him”, is likely to be harassment.

The policy undermines provision of single-sex facilities, saying that: 

• All individuals have the right to express their identity at work and present in their gender. This could mean… using any appropriate single-sex toilets and other facilities.
• It is assumed that the individual knows which facilities are the best match for their gender identity and expression.
• Some transgender, non-binary and intersex individuals may feel most comfortable using gender-neutral facilities where present, but this is a matter of personal choice.

The policy creates a hostile environment for those with gender-critical beliefs, saying that:

• “Transphobia” is the specific fear or dislike of someone because they are transgender – this includes refusing to accept an individual’s gender identity (this is not just limited to colleagues but could include public figures, criminals, or family members, or to groups in the abstract).
• Deadnaming, misgendering and “outing” (referring to someone’s actual sex) are transphobic behaviours.
• Deliberate, continued and repeated incidents of misgendering are unacceptable and should be dealt with using the bullying, harassment and discrimination policy.
• The gender identities of individuals must be respected at all times, and it remains unacceptable to use former names and/or incorrect pronouns while the individual concerned is not present.

These were the sorts of concerns that were raised internally by Frances. 

By July 2023 a new version of the model policy was in development and had been sent out for consultation within the civil service. It was also leaked to Vice. In some respects it was an improvement, saying that “employees can hold different opinions and beliefs in the workplace… as long as they engage in reasoned and rational debate”. But in other respects it was still seriously flawed, and pushed more responsibility down to individual departments, rather than offering a clear, standardised approach. 

It retreated from gender self-identification but asserted that a trans person with a gender-recognition certificate (GRC) is entitled to use facilities provided for members of their “acquired gender”. For individuals without a GRC it said departments would need to develop their own policies taking into account the Workplace Health and Safety Regulations. It suggested that trans employees could use facilities provided for members of the opposite sex if these were fully enclosed single-occupancy washrooms, but not shared facilities containing cubicles and washbasins. 

An unnamed civil servant quoted by Ben Hunte in Vice called the new draft guidance “terrifying”. Stonewall also condemned it, with Robbie de Santos, its director of external affairs at the time, describing it as “highly exclusionary and reprehensible” and claiming that it “would be unlikely to stand up to legal challenge, as it brazenly ignores the long-established rules around single-sex spaces as outlined in the UK’s world-class Equality Act”. Jolyon Maugham, director of the Good Law Project, said it was “illegal and… revolting in equal measure”.

The approval process for the policy stalled and was never completed. 

On 8th April 2024 the GEO withdrew its 2015 guidance for service providers and on recruiting and retaining staff saying they were “now out of date”. They were not out of date. They were legally wrong and had been since they were written. 

In May 2024 the then Minister for Women and Equalities launched a call for input asking for examples of policy or guidance in which public bodies or organisations that advise public and private organisations “wrongly suggest that people have a legal right to access single-sex spaces and services according to their self-identified gender”.

The Office for Equal Opportunity (OEO; the successor to the GEO) has recently said that it received 404 examples of policies and guidance. It is not known how many were from central government departments. It said:

“In some cases, guidance reflected the organisation’s own policy to allow those with the ‘gender reassignment’ protected characteristic access to single-sex spaces that correspond with their self-identified gender, but did not incorrectly suggest that this is mandated by the Act. Had organisations suggested that their policy was mandated by the Act, however, this would have been a clear misinterpretation of the law….

“…the results of this call for input suggest that there is further work to do to ensure everyone has clarity about these exceptions in a range of different contexts.”

Given that Whitehall and the GEO (now OEO) have been driving this misinterpretation of the law for the past ten years, it is hard to have any confidence that they now intend to admit their mistake and sort it out.

This leaves the civil service open to more six-figure payouts.

What next? 

The statement agreed by the Permanent Secretaries of DCMS and DSIT says they are committed to upholding their duty of impartiality “in line with the recently issued non-partisan Guidance on Diversity and Inclusion and Impartiality for Civil Servants”. Among other things, this guidance says:

• Civil servants must always be guided by the core values of objectivity and impartiality when carrying out work in diversity and inclusion.
• The civil service value of “unity” means cohesion, mutual tolerance, and respect for the validity of other’s beliefs. It does not mean homogeneity or conformity of belief or views, and there is not an expectation to think as one. 
• It is appropriate to use sex-specific language where such language communicates the desired policy outcome. “This may include, for example, references to the needs of men and women respectively, or areas of policy where biological sex is a relevant or pertinent concept.”

The two department heads say they are working together to develop a new gender-reassignment policy that will comply with the Equality Act 2010 and will “balance rights” in relation to the protected characteristics of sex, religion and belief, and gender reassignment. The statement (dated December 2024) said that they expected the long-awaited central model policy to be out before the end of that year (there is still no sign of it).

It is time for clarity. The Cabinet Office and Sir Chris Wormald, as head of the civil service, need to throw out misleading advice received from a:gender and Stonewall and develop a single, simple, clear central policy that will protect all staff from unlawful discrimination and harassment.

The Equality and Human Rights Commission is also seeking to finalise a new statutory code of practice for service providers that steps back from its previous approach, which wrongly suggested people who identify as transgender have a right to use opposite-sex facilities. 

Workplace (Health, Safety and Welfare) Regulations 1992 require that toilets and washing facilities are provided in “separate rooms… for men and women” unless they are fully enclosed unisex rooms. This is a simple requirement and not the start of a negotiation. Man and woman are not self-declared categories. 

Allowing male staff into facilities that are signposted for females is likely to result in unlawful harassment and discrimination against women, as the case Earl Shilton Town Council v Ms K Miller: [2023] EAT 5 found.

To avoid creating an intimidating, hostile, degrading, humiliating or offensive environment for female staff (in breach of Section 26 of the Equality Act), employers in the civil service and elsewhere need to say a firm, clear No to male employees who want to trespass on spaces provided for the privacy and dignity of their female colleagues, and vice versa for female employees who want to intrude on male-only spaces.

The new policy across the civil service must be clear that sex-based rules hold whatever staff are wearing, whatever pronouns they prefer to be called by, whatever they believe, whatever medication they take and however long they may have been allowed to break sex-based rules previously. It must not bend under pressure to chase awards from organisations like Stonewall, or in response to emotional blackmail about suicide or smears of “transphobia”.