Thread by @tribunaltweets

This is part 2 of the morning of day 4 reporting in LS vs NHS England; part 1 of the session is

The court is at present taking a break, and we expect the hearing to resume at 11.45am.

Naomi Cunningham (NC) counsel for the claimaint will be continuing her cross-examination of Peter McCurry (PM), a witness for NHSE.

[Hearing is beginning]

J: Thank you NC for recommendations. And we have now read your subs, do you want to say any more?
NC: No I think water under the bridge, but grateful for you reading them.

J: How much longer with Mr McMurry?
NC: Hard to tell - certainly will go into the afternoon, safest to say most of the day.
J: Remind that you should finish by 3.30 to leave time for panel Qs, as PM cannot be here tomorrow.

NC: At para 18 of WS you talk of the need to balance the FWS judgment with diversity of workforce and providing facilities they can use. Everyone is to be provided with suitable and private facilities?
PM: Yes

NC: You say you have reconsidered and have decided that the current balance is the right one. But you mention no documents. And since you didn't concede group disadvantage until last week, fair to say you still did not consider women?

PM. No not fair. We are saying policy avoids issues of harassment and discrimination.

NC: And what about workplace regs 1992, which require single sex provision?
PM: I don't think I can comment on that
NC: But if the facilities are mixed sex now, then you are relying on the single-occupancy units for your compliance with 1992Regs?
PM: Yes

J: [asks if NC and PM could slow down a bit, to facilitate note-taking]

NC: We know c63% of workforce are female.
PM: Yes
NC: But we don't know % have GC or religious views.
PM: No
NC: Or % victims of assault. Or % with PTSD as a result.
PM: No

PM: Quarry House had most provision in communal blocks, plus a few individual ones?
NC: Don't know about QH, never been there, but at WP I think it's a bit more than half is communal provision.

NC: We can assume most ppl happy to use communal for their own sex?
PM I guess
NC: But that ppl with T identity might not be?
PM: Agree

NC: And <5 ppl T identity-
[PM corrects - <5 male=TW, c24 in total with T id]
NC: Small population, so not surprising nothing came up until the issues around "person X"?
PM: Yes

NC: So you have one person now not comfortable using the men's. Two possible solutions; he either uses the women's, or the unisex / accessible toilets.
PM: Yes

NC: Accessible are OK for men and women?
PM: Yes
NC: And not inferior to communal?
PM: No.

NC: If some men have permission to use women's communal loos, they are no longer single sex are they?
PM: From logic point of view, yes.

NC: Even if not everyone agrees that, there will certainly be some women that do perceive it like that?
PM: Can't speak to that.

NC: Inevitable consequence of a trans identifying man using women's facilities is a cost to women, loss of single sex facility?
PM: Impact rather than cost, but, gain of having workplace that there is a workplace inclusive of ppl not identifying as their sex.

NC: It is a gain to women??
PM: No, but, some ppl will gain bcs of the including.

NC: Your WS says that ppl with objections can use accessible or single occupancy, do you accept that C not aware of 5th floor?
PM: Yes

NC: So once C self-excluded, there was only available to her the accessible toilet - one only?
PM: Yes
NC: And if occupied, she just has to wait
PM: well yes, but cd happen in communal too.

NC: And if she uses it, s/o with a disability might have to wait?
PM: Yes

So instead of the users of that accessible loos being D=disabled staff, it's now D+M (M being women not wanting to share with men). And you don't know what number M is?

PM: No
NC: The other route would have been, tell the man with T id to use accessible loo. Now the number in the accessible loo is D + 1
PM: Well, no, D + 24 T-id staff
NC: Fair enough but it's only the <5 M that we should count here?
PM: Yes, OK, agree D+5

NC: Surely the obvious answer is to have the man who IDs as a woman use accessible? And not the unknown number of women who now self exclude?
PM: I can see logic, but not sure if that would breach the Equality Act.

NC: SC and I will address that in subs. But leaving it aside - if we assume no breach, it's the obvious solution.
PM: It's *a* solution
NC: Not just *a* - it's the obvious, fair solution
PM: Tend to agree.

NC: And I suggest that the reason NHSE chose to displace an unknown number of women rather than a tiny number of men, is what you say in WS. "Respecting the gender identity". You refer to this in more than one part of your WS. That is the most salient objective?

PM: No, most salient is just before - balancing, complying EA, PSED.
NC: Part of PSED is fostering good relations?
PM: I believe so.

NC: Is it fostering good relations to take something away from one group and give to another? To prioritise a small group over a much larger group?

PM: I don't think that was our intention. It wsa about removing barriers for a gorup that was facing additional challenges in the workplace. That's what we were trying to do.

NC: I want to suggest that this was all about affirming NHSE position that TWAW and TMAM
PM: I don't think that's our position. Have never had conversations to that effect.

NC: Moving on to For Women Scotland. Supreme Court ruled 16th April 2025. You say in WS that you had been having internal discussions about its impact.

NC: Would it not be reasonable for tribunal to expect that the stalled review of the policy would have been restarted at that point?
PM: Cd be expectation yes - but as I say, an awful lot going on at that time.

NC: It's now 11 months later, and review seems to consist only of a note that that policy is under review. Unless there is more you can tell us?
PM: I think there have been more discussions on it, and a new framework is developing, but has not yet come to me.

NC: A framework about how the review will happen? Is that what you mean?
PM: Yes

NC: Your WS says your considering is about how you can work with FWS, while wanting to retain diversity aims etc. Are you saying they are in conflict?

PM: No not really - it means we need to think of everyone, avoid discrimination and harassment, and there's no new guidance yet for employers ...

NC: Are you aware of good law project judicial review re EHRC interim statement
PM: No

NC: You say in WS that there is missing debate re practical realities, are you saying you think the Supreme Court missed something?

PM: One point yes - it's not clear to me, how we then apply the Equality Act or a policy rather, so as to avoid breaching the Equality Act, when we apply on the ground
NC: You don't think the Supreme Court covered that?
PM: No I don't.

NC: You say there's no clarity re single sex spaces, and you are grappling with the effects. Is this you saying [missed]
PM: No, am saying we must make sure what we do complies with Supreme Court, but doesn't put us in breach of Equality Act.

NC: You say that you have not had a huge volume of staff input / complaints. But surely a staff survey is not the way to decide whether to follow the law?
PM: No it's not.

NC: [ref] update here 2/6/2025 on the intranet, re Supreme Court ruling. The overall tone is mournful?
PM: Don't acceppt that

NC: Message is, this is bad news, will make staff unhappy, look after yourselves. Fair?
PM: No not fair.
NC: You say "has significant implications" and care for staff. You stress "inclusive environment", "bring your own selves to work", colleagues with PC of GR

NC: Tone is, we are trying to mitigate the impact?
PM: Lots of press at the time, lots of colleagues worried about what it all meant.
NC: Clear message that T id staff would be upset?
PM: Yes but not only that - all staff needs.

NC: Ends with support offer to T staff "during this time". Can only mean 'difficult time' surely.
PM: No, just mean time of reviewing.
NC: Offering support, telling to take care. I say, mournful
PM: Disagree. Context of big organisational change too.

NC: No recognition that some staff will have welcomed the FWS ruling.
PM: True
NC: You finish "bullying and harassment will never be tolerated". Isn't that a warning to staff not to show any pleasure in the verdict
PM: No, not true at all.

PM: The line is important because it sets out our zero-tolerance policy of bullying / harassment / discrimination. By anyone, to anyone.

NC: There is no balance in this statement. It doesn't say "difficult contested area, some ppl will welcome some will not, everyone behave themselves". Does it?
PM: Disagree with your reading

NC: [ref] This implies that someone has worked out that it will no longer be lawful to let trans ID men use W facilities?
PM: Disagree - just someone summarising ruling.

NC: This doc says SC has provided clarity, but now in your WS you say things aren't clear.
PM: It's a very difficult space for employers. I think the SC ruling is clear, but there is still muddle.

NC: If you were to have a rule that single sex means single sex, ppl can use single-occupancy if not OK with that, you say that would cause discrimination claims?}
PM: Yes if we directed s/o to a particular loo.

PM: If we didn't offer ppl the *choice* of which to use, yes I think we wd be in danger of discrimination claims.

NC: Talk here of carefully reviewing policies - this is 9 months ago. How is that review coming along?
PM: Very slowly. Not aware of any policies having been reviewed in light of SC ruling.

NC: Why so slowly?
PM: Many reasons - complicated landscape - lots going on around NHSE ending, competing priorities, redunancies to manage

NC: Is it not the case that the SC ruling is crystal clear, but R doesn't like it?
PM: Disagree
NC: Desperate attempts behind the scenes to try to get round it? Because R committed to gender ideology?
PM: Absolutely not.

NC: NHSE like others is dragging its feet, trying to avoid implementation.
PM: Don't agree, and have never had converstaions along those lines.

NC: You talk about lack of adverse feedback on the policy since 2017. p937 of bundle please.

NC: Letter to someone other than the claimant in Dec 2024 from you.
PM: Yes
NC: Someone else with similar concerns to C. You note that the person you write to has said has been afraid to speak out bcs ppl have lost their jobs.

NC: Presumably you're aware ofthe rash of cases over the past few years where gender critical ppl have lost jobs etc
PM: In general yes
NC: Have heard of Forstater?
PM: Yes aware but don't know well.

NC: And since then we have had Phoenix v OU, Meade v Westminster & SWE, Adams v ERCC, Fahmy v Arts Council, Bailey v Garden Court, Pitt v Cambridgeshire COuncil. Were you aware of any of those?
PM: Not specifically

NC: Aware of rash of cases though?
PM: Not really, until this tribunal.
NC: Aware of JK Rowling views?
PM: That she has them, not what they are in detail.

J: Not sure how JKR views and this witness knowledge of is relevant?
NC: My point is that a number of individuals with GC view have suffered in the workplace, and that JKR has had multiple serious death and rape threats.

NC: You would not suggest that the person you are corresponding with is unreasonably afraid to speak up?
PM: No indeed, my letter does say nobody in NHSE has lost job, but, thank her for speaking to us.

J: NC if you want to break early for lunch?
NC: Yes please - I am a bit worried I may have lost a section of my notes!

J: We will break till 2pm - Mr McMurry you remain on oath.

[LUNCH]

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