Thread by @tribunaltweets

Good afternoon. This afternoon we will be tweeting the oral submissions by Counsel in the case at Employment Tribunal of LS vs NHS England.

There was no hearing this morning as the barristers were composing and exchanging their written submissions to the Court. This will be the last session of the public part of the hearing; the panel will spend Monday deliberating on the case.

Our substack page on the case is

It includes our reporting from the earlier days of the hearing.tribunaltweets.substack.com/p/faye-russell…

We are a collective of citizen journalists and work on a voluntary basis. We endeavour to report everything that we hear but do not provide a verbatim report of proceedings.

You can support us by subscribing to our Substack (link in bio) which funds some travel and our IT costs.

The substack page also includes a full list of the abbreviations we use, including

J: Employment Judge Deeley
P: either of the two lay members sitting with the Judge.

LS, or C: the anonymous Claimant
NC - Naomi Cunningham, Counsel for C

NHSE or R - NHS England, the Respondent
SC - Simon Cheetham KC, counsel for R

We expect the hearing to begin at 2.00pm.

We are still waiting for the hearing to begin.

[Hearing is beginning]

J: Miss Cunningham you have an additional document?
NC: Yes - I refer to the ETBB and have sent you two versions for comparison.

J: You refer to report by Professor Phoenix but I don't think we have it
NC: Oh I thought it was sent in ages ago
J: I am not sure if we do
NC: I can re-send
J: Please do - to make sure we have electronic copy as well as hard copy.

NC: We should also send you an authorities bundle?
SC: If you require it - I am not sure we have referred to any obscure cases
J: I think we won't need an authorities bundle.
SC: I'm happy to send next week if you do need one.
J: We will see how that goes.

J: Miss Cunningham, in your subs you say R has conceded both group and individual disadvantage but I am not sure that SC agrees, re Muslims / Muslim women?
SC: We have agreed re Muslim women, but felt 're Muslims' in general was too broad.

J: I understood LS to have said that Muslim men have access to facilities in the multi-faith room, but women were not given the same. I am just raising in case either of you wish to comment.

NC: That does not form part of the claim in the end - so, just background information from LS.
J: Was looking at from PoV from the rarely-if-ever used part of the EA re combining of different protected characteristics

J: So am wondering if this case, re Muslim women, is tending towards that combination of discrimination. Am raising in case either of you wish to address. Ministry of Defence v Debique 2010 ET case [gives ref]

J: I appreciate that this is only part of LS complaint and may not make a material difference, but I wanted to bring it up. Perhaps we should go with the prepared submissions, and if necessary will ask for addition written on this point.

J: Mr Cheetham I understand you are not pursuing time limits?
SC: No.

SC [begins submissions]
SC: I won't be reading out my submissions you have already read them, will address NC submissions etc. Except that, I refer at the start of mine to intemperate language, and am going to withdraw that.

SC: Want to avoid NHSE appearing to say anything that a keyboard warrior could stir up a storm about.

SC: So, on to NC subs. Much about 'legitimate aims'.
[discussion of hard copies of both subs]
SC: NC has as it were gone through R's 'legimate aims' with a blue pencil.

SC: It may be correct to say R's are 'anodyne', but that does not mean they are unreasonable ones. In 2017 when policy introduced, the R felt that that is what it was doing. Even if tribunal finds did not achieve, does not mean R's aims not legitimate.

SC: Now of course as Miss Hodgskiss acknowledged a women's network would have been involved, but in 2017 there was not one. We must not apply hindsight incorrectly either in terms of attitudes or the law.

SC: I can't think of any other area where there have been such shifts in relation to employment.

SC: NC is also cynical about - I should say, I think we can all agree that all 4 witnesses were doing their best to assist the tribunal, best evidence. Yes it was R position that transmen and transwomen were to to be treated as men and women respectively.

SC: LS says that respecting gender identity is not a legitimate aim, that GI is metaphysical. But we say, it was not about *accepting* GI, was about *respecting*, and we say, legitimate aim to hold. And adhering to the EA2010.

SC: Before FWS the R genuinely believed that they *had* to allow T access to single sex spaces, and they are not alone in that.

SC: This is an area where hindsight is difficult. Legalistic argument is that he Supreme Court states the law as it always has been. But that's not what many inc R had previously understood, and "you should have known" is not helpful.

SC: There is no doubting the impact of the Supreme Court ruling. We know now how the EA should be read. But tribunal cannot ignore how it was read at the time.

SC: NHSE was not only not unique, it was acting the same way as every other public body I know of. Stonewall's involvement in that not unclear. NHSE not acting in isolation.

SC: We can say now that that information is tarnished - but the R did not have that foresight at the time.

SC: Legitimate aim of allowing access - NC says, meaningless. please recall R evidence esp from PG about restrictions re the estate. Lease clear that NHSE not responsible for the facilties.

SC: NHSE did not even have single use of some facilties i.e. ground floor.
SC: NC refers to Mr McCurry - he was candid in giving evidence, clear about R understanding at the time.

SC: And re statistics. In 2017 R was not considering statistics. NC put figs esp to Mr McC, but it's clear that analysis was not done in 2017. R did not know how many ppl M or F objected to sharing the facilties, no.

SC: And re harassment. Am not putting forward any argument that C did not suffer the feelings she had, but, we do argue the case on R intent.

SC: We don't think Erk Gunce comments in 2023 are relevant and indeed LS does not make any claim re those events (trans awareness session)

SC: we ask tribunal to consider evidence of VH, and evaluate whether any intent there.
SC: Much of cross-ex of VH was about what she had *not* done, not what she did. R very clear that there was no intention to harass.

SC: Never any hint LS might face disciplinary action for raising complaints and indeed in grievance process LS said she had felt listened to.

SC: In this case - there is no evidence before you to show any intention behind anything that you might find to be harassment.

SC: J subject to any Qs from you, those are my submissions.
J: No questions. Miss CUnningham?

NC: Like SC I won't take you through my written subs but instead will address SC points.

NC: Am grateful to SC for withdrawal of ref to intemperate and emotive language, but do want to comment here. Totalitarian control of language has been a feature of gender ideology, to extent that until recently even in court cd not name reality that TW are men.

NC: That taboo is in retreat, particularly since FWS, but it's one that is still being quite viciously defended - including in this case. In Sandie Peggie case there were calls for public to prevent J and me speaking as we wished.

NC: The same individual has talked in context of this case of 'decommissioning' me. This is part of the totalitarian attempt to prevent - even in court - the use of plain language.

NC: That viciousness is why I ask this tribunal (and I appreciate again SC withdrawal) to also refrain from criticising language, and tone policing.

NC: On the substance. SC says at #5 that the police was 4 years before Forstater and 8 before FWS and was essentially the same as every other body's. This is of course true.

NC: The campaign to achieve that was yes extremely successful. Even the MoJ was a Stonewall Champion. The older version of the ETBB is full of alarming activist language - now not only removed but warned against, in the latest version.

NC: Would like to note that it was not just that there was no women's staff network consulted - *no* groups representing women sought or consulted.

NC: SC talks of hindsight - that gender critical beliefs not protected until 2021, that TW are men until 2025. But the tribunal *must* use hindsight. All these judgments - and others - declare the law as it is and always was.

NC: Tribunal *must* use the hindsight of what we now know the law to be.
NC: Of course nobody could necessarily foresee the Supreme Court ruling. But that's not the point.

NC: Questions of moral culpability and forgiveness are not for this tribunal - here it's only about legal liability.

NC: SC talks of the practical implications for workplaces, and uses the example of a tiny company with just two toilets M and F.
NC: This is not this case.

NC: In any case will be very rare. If so few staff that there is no accessible separate toilet then the chances are that every single loo, perhaps the only one, is a single-occupancy stall.

NC: In any case, it's not clear why it would be a problem. If the argument is that a TW is unsafe in the M loos at work then the issue is about the male staff - and the idea that giving those M staff the permission to use the ladies is bizarre.

NC: It is fanciful idea to say that a male member of staff - however dressed - cannot use the M loos. Or it is once you take off the Stonewall spectacles.

NC: SC uses the exact point I put to Mr McM - the increase of footfall in the accessible toilet. This takes him no further; I discussed with Mr McM that the footfall would be less if the male TW use it.

NC: SC argues that a biological-sex rule is not enforceable - but that is no reason not to have such a rule. C could have a much higher confidence of only finding women. And, more importantly, that if there was a man there management would support her and deal with it.

NC: SC para 12 - says R is not acting in isolation in waiting for statutory guidance. But the law is the law, the law was stated by SC in FWS 16/4/25

NC: EHRC has *powers* to publish statutory guides to *assist* employers, but that does not mean the law is not binding until they do. The law is as it has been since 2010.

NC: These points may go to the R's moral culpability, but, that is not the issue for this tribunal, which is legal liability.

NC: SC says that the court users here have not been told to use the loos per biological sex. Perhaps they are. But so what? If everyone is failing to follow the law, so what? It would be a very novel defence.

NC: I think SC argues that R was entitled to act on its contemporanous understanding of the law. But that['s not so. R was obliged to follow the law as it is, not as R thought it was.

NC: SC says the issue of the policy deliberately discouraging dissent is not part of the claim, but that's not so, it's the purposive part. It's true I did not ask VH about her personal intentions, because it's not suggested that it was her intentions.

NC: But if you read the policy, particularly with the GIRES doc it endorse, it must be taken to intend its own consequences; and it says, ppl must be treated as W or M, must be allowed to use loos, everyone must use pronouns -

NC: Taken together, if there is a male colleague, you've know him for 10 years, perhaps you know his family, he comes in one day and says "I identify as a woman" and suddenly you can't object if you meet him in the ladies, you have to call him a woman.

NC: Even if he is like "Alex" in the GIRES document and has a full beard and only wears a few bangles, you have to play along with the pretence - yes pretence - that he is a woman.

NC: You have had LS evidence that she was terrified after the 'awareness' coffee morning, and the warnings about harassment and discrimination, and having to obey the pollicy.

NC: Para 22. SC says that if this claim is well founded then every employer with a similar policy, including gov depts - see the scale of the reach of transgender ideology - will be liable for indirect discrimination.

NC: That is the "floodgates" argument. This tribunal's task is to look at *this* claimant. This tribunal does not need to worry about unknown numbers of other women, only this C.

NC: SC talks of R aims being to adhere to the EA as it was understood at the time. But adhering to a *mistaken* understanding of it cannot be a 'legitimate aim', even if the mistake is perhaps understandable.

NC: Re the building ownership - I did not address that because it's not what the C is claiming, about the physical fabric of the building. It was about the R policy of how that fabric was used.

NC: Re the ground floor showers - I raised as context of R lack of care around women's comfort and safety, R cd have asked for designation as M and F but did not.

NC: The common changing area - once one or two men start using that area it effectlvely becomes a M-only space, as most women will not want to use it. I repeat, not designating as separate M and F is example of R lackadaisical re women.

NC: Want to ask tribunal to pay attention to the specific difficulties LS had - and SC has kindly said that her evidence was in full good faith. And note that she said why she hardly ever felt able to use them.

NC: [Missed a short bit]
NC: It is not disputed that it's open to an employer to provided fully enclosed single-person facilities, under 1992 regulations.

NC: But point is that if an employer makes *communal* spaces mixed sex by allowing some of opposite sex in, then it is failing under 1992 regs to provide the SS spaces required.

NC: Now it's possible that a large building with lots of single user rooms has enough of them for *all* its staff to use, and it might then not matter that all communal areas were mixed sex. But I find it hard to think any employer would have such over-provision.

NC: SC notes that LS at one point said she was happy with the showers at Wellington Place, but you should also note that she later realised the problems with them.

NC: And it is about having the *confidence* that men will not be undressing in front of her - not just whether or not a man actually was.

NC: Those were my comments on SC para 30, but would also like to say re that that the para misunderstands I think the nature of indirect discrimination. Which involves the PCP - and the R has no idea of the magnitude of it because it took no steps to find out.

NC: At para 41, SC returns to Q of timing and hindsight, re the purpose of the policy, that 2017 was 4 years before Forstater. But I say that's a point in the C's favour.

NC: That at that time it had never occurred to anyone that gender critical beliefs were to be respected [missed]

NC: If the purpose of the policy was to suppress dissent from gender ideology, which I say it was, then it doesn't matter that dissent didn't then have a name as 'gender criticial'. And like FWS, Forstater is a statment of the law as it laways was.

NC: SC says, LS didn't use the showers at either QH or WP. That is not the point, which is that she did not have the option to. They were provided for all employees - unless they were women who didn't want to share with men.

NC: It was reckless of the safety and dignity of its female employers - an astonishing way for R to behave.

NC: VH with hindsight appeared quite shocked by the implications of the policy, particularly re the open showers. And yet nobody in 2017 took any thought at all for the real effect on women of a policy generated by activism of orgs like Stonewall and GIRES.

NC: An org like NHS England - if you think about it rationally, it's astonishing that nobody at NHSE saw that problem, or saw it and didn't mention it. It's astonishing that gender ideology was so much adopted and acted on.

NC: In oral submissions SC said re this point, that this was not R adopting a belief but only of respecting those with a gender identity, and that's different.

NC: I agree that's an important distinction. NHSE of course should respect metaphysical beliefs, religious beliefs, philosophical beliefs. Should not discriminate on basis of beliefs, or harass staff. Maybe even accommodate them, to an extent.

NC: But it should not *adopt* any of those beliefs. And I say NHSE has clearly crossed that line; it accepted the belief system, and required its staff to accept it too or at least to pretend that they did.

NC: And all without any consideration of impacts on its female staff.

NC: Unless you want more from me on Debique, those are my submissions.
J: Shall we adjourn for a break so you can read it?
SC: I don't think the R has much to say on Debique, so if C does we could look at written for Monday?

J: SC do you want to make any formal response now to NC subs?
SC: No
J: We will take a short break so NC can decide what / whether re Debique.

SC: Do we want to diarise remedy hearing now?
J: We might be looking at August ...
SC: Parties might reach agreement of course.
J: I will check our diaries during the break. We will break for 10 minutes.
NC: Can you remind me ref for Debique?
J [does so]

[BREAK]

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