Thread by @tribunaltweets

Good afternoon. Adams v Edinburgh Rape Crisis Centre will continue today at 2 pm and we will.continue our live-tweeting the case. The Claimant was employed by Edinburgh Rape Crisis Centre as a counsellor. She does not subscribe to gender identity theory.

She believes that biological sex is real, important, immutable and not to be conflated with gender identity. The Claimant alleges constructive dismissal because of her gender critical beliefs.

Abbreviations: J: Employment Judge McFatridge
C or RA - Roz Adams, the Claimant
NC - Naomi Cunningham, barrister for the claimant
R or ERCC - Edinburgh Rape Crisis Centre, the Respondent
DH - David Hay KC, barrister for the respondent

KM - Katy McTernan (a member of R’s senior management)
MR - Mairi Rosko (Board member of R)
MS - Miren Sagues (Board member of R)
KH - Katie Horsburgh (Board member of R)
MW - Mridul Wadhwa (chief executive of R)
BP - Beira's Place
E&W RC - Rape Crisis England and Wales

Additional frequently used abbreviations
NC - Nico Ciubotario (formerly chief operating officer of R)
SU - service user
SW - support worker
I/x - investigation
Disc - disciplinary
Griev - grievance

MoS - member of staff
WL - waiting list
AB - non binary member of staff of R
NB - non binary
CSW - counselling support worker

Expected that DH, barrister for respondent will continue direct evidence of Katy McTernan (KM) wehn we resume.
We have added a number of abbreviations to assist with speed and accuracy as the current evidence includes discussion of operational matters at ERCC.

NCi - Nico Ciubotario (revised to avoid confusion with C's barrister).

We are WFTCHTJ (waiting for the conference host to join). One minor clarification from this morning; the judge was discussing an application from R's barrister with regard to the permission given for live tweeting. Those remarks were attributed to DH, R's barrister in error.

Video conference is live, we are waiting for judge and panel to arrive.

Judge and panel members arrive.
J - Good afternoon, welcome back. Reminds witness of affirmation. DH please continue.
DH - I want ask you about matters after the conclusion of the disc process. There was an appeal. Did you have any involvement in that.
KT - No

DH - did you have any involvement in griev process?
KM - No.
DH - moving on. An email from you to C on 30 March (last year -assume 2023) Follows on from an email from C to KT and then sent to you. Your response, one matter I want to ask you about is last para

DH - you mentioned a return to work plan - what was that about
KM - when someone has been away for a period for sickness etc, we see what accommodations we might need to make, support, phased return etc.
DH - what expectation did you have when you sent this email about C coming

back to work.
KM - I expected her to return to work
DH - what did that mean beyond the support
KM - missed some ...discussed exactly what support she might need
DH - yes, there's guidance given as to sharing of personal info of staff and volunteers, if SU is not content

pass to line manager or otherwise up the chain. What would happen then?
KM - the line manager would engage with the SU, to see how the SU could engage with the service.
DH - you mentioned that some changes had been to process, including an initial meeting with SU when they

first contact the service. Has anything been done since about GI and similar issues.
KM - the 121 meeting allows us to discuss with the potential SU, what they were looking for, we could tell them we had some NB SWs, but we couldn't tell them that info about the SW.

DH - what is done if the SU indicates a preference for a particular GI or perhaps avoiding a specific GI, how is that accommodated.
KM - if a SU indicated a desire for a woman GI person, we would allocate that to them.
DH - is there provision of woman only space within ERCC

KM - yes, dedicated time on Tuesday, and if that doesn't suit we try and find a way to make a woman only space or find another venue.
DH - have you been aware of requests for SU not to have a NB support worker?
KM - yes, we have had SUs asking woman identifying SW.

* asking for*
DH - thank you very much, turns over to NC.
NC - I want to talk about who's been called to give evidence. You are the only staff member called to give evidence.
KM - yes
NC - you did not lead the disc, or the griev or the appeal. Your part was quite minor.

KM - yes
NC - an email from my instructing solicitor in 4 Jan
KM - I don't have that page
NC - do you have lose pages
KM - finds page
NC - email refers to date in December 2023 about witnesses, says 'you now tell me that NCi has left ERCC and will now be giving evidence ....

only from 3 board members and no senior staff members, my solicitor suggests that R should call MW because as a male person in a female reserved role, it had a distorting impact on the culture of the organisation.
There is no suggestion that it is anything other than R's choice

not to call MW or NCi. There is no reason. It is just choice.
KM - asks to rephrase
NC does
KM - NCi not available,
NC - as for MW you agree with what is set out there - the choice - there is no reason that it is impossible
KM - there is no reason that it would be impossible

NC - a few qs about sex realist/GC beliefs. You are aware that some believe and say that TW are men and TM are women.
KM - I'm aware
NC - and that humans are mammal and mammals can't change sex
KM - I'm aware
NC - and those people believe that bodies determine

sex, if small gametes organised, male, large gamete organised female.
KM - I'm aware
NC - And that has nothing to do with interests or presentation
KM - I'm aware.
NC - Am I right that you would not be able to say you share those beliefs.
KM - correct

NC - in fact MW and others at ERCC go further than that.
KM - yes
NC - now referring to transcript of Guilty Feminist podcast
KM - she's expressing her experience, I can't say if it's transphobic
NC - it goes further than that - she says if you don't accept what trans people say

about themselves its transphobic
KM - pause, taking a moment,
J - take as long as you need
KM - what I would see with that if you don't recognise trans people, you're denying their reality, that's transphoboc
NC - so saying that TW are men, is inherently transphobic
KM - yes

NC - there are 2 choices to keep your job at ERCC during the period, either vehement believer in TWAW, TWAM and if you're not a vehement believer then you must keep silent.
KM - no I don't agree with that
NC - you're not a vehement believer are you
KM - I don't know what you

mean by vehement believer
NC - you don't believe C was transphobic
KM - I didn't see her being her transphobic, she could work within our procedures
NC - so you agree that SUs that want to know the sex of their SW are not transphobic
KM - no they don't get to know that

NC - why do you advertise jobs under Sch 9, what are you saying to service users
KM - we are an employer who can use the exemption, to only employ women, we now have some staff members who are nonbinary so we no longer say that all of our staff are women
NC - GI does not tolerate

dissent; we can't hold different beliefs and agree to disagree.
KM - its not like that in ERCC
NC - we don't need to make this personal, but you knew that C did not literally believe that TWAW,
KM - I don't know that I understood the extent of her GC beliefs when she worked

with us.
NC - this belief system reinforced by the presence of a biological male, meant that women cannot choose a genuinely female only space
KM - I disagree with that
NC - let me try again - it's a belief system that denies women a right to choose a space that is for

biological women only
KM - we don't offer a space that is woman only on a biological basis
NC - its not just ERCC, its a belief system that denies women the right choose at any time in any circumstances the right to choose a biological woman only service or space

KM - we don't offer that at ERCC
NC - that was not my question, my question was about the belief system, it denies women the right to ever choose a female only space or service, no matter how intimate
KM - are we talking about ERCC
NC - I said one more time, but I think we are

trying to understand each other
NC - the extreme belief system of GI, says that women can never have that right to choose (childbirth, gynaecologist, bra fitter)
KM - I don't understand how your question relates to ERCC
NC - analogises GI to Christian faith
KM - yes, I understand

but I'm not sure that's what GI says
NC - MW campaigned vociferously against the female forensic examiner amendment in Scotland
KM - I don't know about that
NC - can you imagine MW excluding from a woman only space because MW is a transwoman
KM - I can see MW respecting other

people's space.
NC - the truth about this belief system is that it is destructive of freedom of speech and expression, and destructive of women's rights in particular and is not WORIADS
KM - I don't agree with that.
NC - and the literal conclusion of this belief system

is that a woman should not be able to choose the sex of the forensic medical examiner who exams her after rape.
KM - I don't agree that follows on from that.
NC - referring to staff handbook, staff setting aside personal beliefs, offer woman only space, and offer SU

opportunity to work with a woman. Does that include transwomen.
KM - yes.
NC - how do we know they are a woman
KM - it's how they identify
NC - the one and only piece of information is that they are a woman is because they say so
KM - yes

NC - so if MLF DH said 'I'm a woman' you would accept him as a woman
(DH - I know where this is going) (sotto voce)
KM - yes
NC - he has a beard, he looks like a man, he wears male clothes, he's a gender non conforming woman you would accept him as a volunteer
KM - we would

probably talk with him
NC - what are your criteria, how would you know he's a woman
KM - if he was a woman on his passport and drivers license
NC - so if it says so on his documents
KM - yes, he would have had to live as a woman and go through a lot to get that

NC - what is that 'living as woman'
KM - I don't know, I don't make those rules
NC - asking about training on the Eq Act
KM - yes, provided by HR consultants
NC - do you know about the Forstater judgment
KM - yes
NC - have you had training on Forstater

KM - no
NC - did you think it was relevant to the disc i/x of C
KM - no, that was about failure to follow instructions
NC - have you had any training since about freedom of conscience, freedom of belief
KM - no
NC - now moving on

NC - the query is 'hello, thank you, that time is okay for me, not wanting to assume gender is AB a man or a woman'. Can you agree with me that the SU is almost certainly asking about AB's sex not GI.
KM - I don't agree
NC - do you think they are asking about gender identify

*identity
KM - they say 'assume the gender of AB'
NC - do you agree that people often say gender as word for biological sex
KM - yes
NC - so it's at least possible that the SU is asking about sex, its at least ambiguous
KM - it's possible
NC - given human nature, isn't it likely

NC - the SU is asking about sex given that they have just been raped or subject to serious sexual assault.
KM - it's possible.
NC - so if the SU turned up expecting to be supported by a woman but the SW looked like Mr Hay except had shaved and was wearing women's clothes.

KM - I don't know what they would think.
NC - lets use another example, discusses Eddie Izzard, if a SU turns up they would be traumatised to meet Izzard
KM - I don't know.
NC - there was a simple way to reassure the SU, it was to say that AB was biologically female,

KM - AB is non binary and I'm not going to answer questions about the staff's biological sex.
NC - ERCC employs two NB staff members
KM - I'm not going to comment on staff members biological sex
NC - if a NB person turned up who's passport says M, would be able to hire them

KM - no, we use the exemption and only employ women.
NC - but you accept that anyone who says they are a woman is a woman
KM - we need to properly apply the exemption, we would need to see their passport for example.
NC - moving on - C's email to AB, asking about how to

respond to SU inquiry. That - on the face of it - is a polite and proper inquiry.
KM - no, AB said they didn't want to talk about this
NC - I think AB had said at the time of the name change they didn't want to talk about the reasons
KM - it was understood they didn't want to

talk about it. It's against policy to disclose sex and personal information about staff.
NC - now referring to trans inclusion policy, 'as a general rule a persons trans identity should not be discussed outside setting up direct support activity' - that says that it can be

discussed in that context.
KM - it's talking about the trans identity of the SU, and that's appropriate to be discussed internally
NC - KTs email, after C's draft, I've just responded to a survivor from support account, on instructions from MW, that we have no men on our

staff or among our volunteers. Is that an adequate response?
KM - at the time I thought it was fine. B
NC - do you think differently now
KM - we've thought more about it and are working with it.
NC - you've said you will accommodate a SU request to see a literal woman

KM - no, we would work with that person and tell them what we can say about our SW, but we would not disclose a SW biological sex
NC - so you are saying there are no circumstances in which you would enable a SU to be sure sitting alone in a room with, discussing details of

her sexual assault - there is no way you could assure you her that was a woman, no circumstances
KM - if someone was very determined and specific we would try and find the right person for them we might not assign them to trans or NB person
NC - MW is a biologically and

legally a man?
KM - MW is a woman, a biological woman.
NC - could all of your staff be transwomen then
KM - I'm not going to comment on that
NC - KT responded to the SU after discussing with MW,
KM - yes
NC - if KT had to ask MW, then how could that be misconduct

KM - but it had already been agreed what would be said
NC - but that can't be the case because if KT had to ask MW, then it can't have been agreed
KM - I see the inconsistency
NC - but it destroys the whole basis of the disc i/x doesn't it?
KM - the disc i/x was about what

RA had done, and what followed on.
NC - if the SU had known that MW was CEO of ERCC, then the email from KT would have conveyed only that they would not be given any information or assurance about the sex of their SW.
KM - I don't know.
NC - in fact the response of MW in this

circumstance, is to demonstrate contempt for a woman's right to choose
KM - I can't agree with that.
NC - back to staff handbook, response is not consistent with these aspects of the staff handbook
KM - I believe our service is consistent with this requirements.

NC - if a service user had asked if RA was a woman and told yes, would that give rise to a disciplinary action?
KM - no
NC - how is it different from AB
KM - AB's gender identity and journey is private information
NC - now on to email from AB to MW - thanks for acknowledge

these things, it would be good to have a clear organisational position on these things. It's clear that there wasn't a clear position.
KM - yes, there wasn't a clear position we working through it trying to find the right way
NC - that was admitted (page ref, reading)

in ERCC grounds of resistance to the claim. Have you seen this before
KM - yes
NC - did you approve it
KM - no
NC - who did, MW?
KM - could have been MW or a member of the board
NC - now onto choice for disc, you or NCi. You didn't think that C was transphobic for not saying

TWAW. But NCi was a true believer, a zealot
KM - I can't say what NCi thought
NC - you were okay with C, she was a good worker, you didn't find it offensive that she didn't believe TWAW
KM - I did find her a good worker, I did know that her opinions were different from our

organisational approach.
NC - MW wanted NCi to conduct the i/x because she's a believer despite the fact that you would have been a more obvious choice.
KM - NCi was the right choice, looked after HR
NC has explained she will be asking a number of questions that KM may need to

answer 'ask MW or ask NCi'.
NC - notes of i/x meeting, AB was female person in a service that said it offered woman only services who adopted a male sounding name
KM - I don't think it was a problem it's not a particularly male sounding name
NC looking for a reference.

NC - notes of meeting, lack of clear plan on how to respond, did it strike you that ABs description of what RA had done as 'violent and humiliating' was perhaps exaggerated?
KM - no, it's how they felt
NC - do you think people ever exaggerate
KM - yes

NC - so RAs request was violent and humiliating?
KM - yes, that's how it felt to them
NC - now reading out ABs email to MW, that doesn't read like an email from someone who has just encountered a violent and humiliating experience.
KM - I can't say because they don't put their

feeling in an email.
NC - but to go from matter of fact, passing on the email to 'violent and humiliating' it didn't occur to you that they might have been encouraged to make more of it?
KM - no it did not
Missed q&a.
NC - anything that RA needed to learn?

KM - I don't know what RA needs to learn.
NC - ABs 'RAs lack of awareness' translates to failure to profess the gender creed
KM - no
NC - so AB says, I'm a NB person, if you want a woman identifying person you can have another worker

KM - yes
NC - so it's okay to tell SUs the gender identity of SW but not their sex
KM - it depends on the context
NC - so sex is private information but gender identity is not
KM - again context is important
NC - so your evidence is that a SU might want to see a woman identified

person but not care about seeing a woman by sex category
KM - yes
NC now directs KM to read a particular passage to herself.
NC - what that passage evidence in to what RA thinks and feels doesn't it?
KM - yes
NC - AB talks about transphobic clients, clients who don't agree

that TWAW and would be upset to find a transwoman in a woman's space.
KM - I think there's more to it than that.
NC - but it treats it as axiomatic, that if you don't believe TWAW then thats transphobic
KM - can you clarify
NC - SUs rights to be transphobic means that they

want to see a female woman. And disagreeing with TWAW is hate.
KM - I think that AB is not just thinking about SU not wanting to see a TW is transphobic but also the wider impact of transphobic beliefs on the wider environments.
NC - saying that 'no discourse with people who

hate you is equating transphobia with hate' Do you believe that is always the case.
KM - some times discourse is possible on areas of disagreement, sometimes its just polarising and hateful
NC - AB says SUs are generally reassured when meeting AB, that's because shes a woman

KM - no I'm sure it's more than that
NC - AB mentions that RA has violated Eq Act by disclosing sex and GI to everyone, they have obviously been talking to someone about it
KM - I don't know, it may be just that they were learning and processing on their own

NC - the i/x didn't go into that, where did it come from
KM - I don't know
NC - in that interview neither you nor KT, NCi challenged anything that AB said
KM - I didn't challenge anything,
NC - you said earlier if something was wrong you would act

KM - there was nothing that made me feel like I wanted to step outside my role as a note taker
NC - team meeting, KT said there would be more guidance, C said that whenever she raised it 'there will be more guidance' but when it arose in a concrete form there had not been more

guidance.
KM - yes
NC - and that is consistent with what AB said about lack of clarity
KM - yes
NC - NCi asks C if she has any questions, what she wanted was help repairing the relationship with AB, do you have any reason to doubt that was genuine

KM - no
NC - NCi did not answer that
KM - based on the notes, not
NC - and no help was offered
KM - if she'd come back to work we would have done that.
NC - now on to interview of MW, given that KT had to go to MW for the appropriate response, if it should have already been

clear to RA what to do, why was KT not disciplined for asking the same question.
KM - KT went to her line manager for guidance, the i/x was about how RA asked the question, after already having been told what to do
NC - are you saying that RA was i/x because she was asking

AB that question, and KT is asking her line manager.
NC - are you saying that by writing the email, she was disclosing information that everybody did not already know?
KM - I don't know, it's possible. But it's the fact that she wrote the email.
NC - email sounded reasonable

but in notes it says in other conversations between RA & MW obvious RA had knowledge and strong views on this topic and it should be reserved to senior management.
KM - I don't think that's it.
NC - why was it appropriate to interview MW? They were not directly involved

KM - I was not involved in the decision making process on who would be interviewed.
NC - in fact MW was driving the whole process and that expression of anger during the interview was a clear steer to find against C.
KM - no, MW not directly involved in i/x.

J - it doesn't look like we will finish with the witness today, so is this a point to break.
(Some back and forth)
Agreed to finish for the day, KM to return tomorrow morning.
Ends.
Resumes tomorrow at 10 am.

@threadreadapp unroll please