CPS Guidance undermining consent withdrawn

CPS Pack wrote:“Ask the students what happened in the clip. Thinking about how the girl in the clip was treated, can the class understand why she might have felt hesitant about going into the toilets?”

Letter from Sinclairs Law to the CPS wrote:The guidance completely fails to consider the feelings of women who may feel genuinely threatened.

Teenage girl who brought the case wrote:“I’m happy that I’ve been able to have helped girls all over the country keep their right to say no and not get accused of bullying.”

Ben Reilly wrote:In a bathroom that is nothing but doored stalls, I don't see why people can't be generally trusted to mind their own business regardless of gender.

As to the fears that men will dress in drag to gain access to a female bathroom and then do something criminal, I just have to ask, doesn't that already happen? Does it matter whether that male considers himself a man or a woman?

Thorin wrote:

Ben Reilly wrote:In a bathroom that is nothing but doored stalls, I don't see why people can't be generally trusted to mind their own business regardless of gender.

As to the fears that men will dress in drag to gain access to a female bathroom and then do something criminal, I just have to ask, doesn't that already happen? Does it matter whether that male considers himself a man or a woman?

https://www.dailymail.co.uk/news/article-7542005/Girls-skipping-school-avoid-sharing-gender-neutral-toilets-boys.html

https://www.getsurrey.co.uk/news/uk-world-news/children-refusing-use-new-unisex-16907441

eddie wrote:Well yes but I am unhappy that she was called a bully. What she did wasn’t bullying.

The Guidance is directed towards bullying and hate crime for children aged 11-16. Fundamentally it is concerned with the welfare of children. It is extraordinary that no statutory organisation with expertise in safeguarding and the welfare of children has been consulted. We would have expected the DFE to have had input into Guidance that has such a profound impact upon pupils learning and school environment. Notably the Guidance encourages girls to accept the presence of biological males in their safe and private spaces. Rather than being protective in nature this Guidance teaches girls to accept the presence of males which may expose them to greater risk of harm.

It also violates their personal dignity to have to engage in personal hygiene in an environment where boys are allowed to be present. It is notable that the organisations consulted are activist organisations that are advocating for gender self-identification. They do not represent an approach that accords with present legal realities.

The absence of consultation with statutory organisations with safeguarding expertise renders the consultation process irrational. .

3 Misrepresenting the law The CPS holds itself out as providing expert legal advice on the application of the criminal law. As such a school, teacher and pupil would expect this Guidance to accurately reflect the law.

It is trite law that guidance which misstates the law is itself unlawful; see Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112 HL 193 per Lord Bridge. The Guidance misrepresents the law in terms of gender identity having legal protection, the use of single sex toilet facilities, and the powers of the Police to prosecute hate incidents. (a) Gender Identity At page 14 of the Guidance it states inter alia:

“It is more likely that prosecution is required if the offence was motivated by any form of prejudice against the victims actual or presumed ethnic or national origin, gender, disability, age, religion or belief, sexual orientation or gender identity; or if the suspect targeted or exploited the victim, or demonstrated hostility towards the victim based on any of those characteristics.”

This paragraph is designed to set out the protected characteristics of the Equality Act. However it fails to represent sex and gender reassignment as a protected characteristic.

Instead, and misleadingly, gender identity is asserted as a protected characteristic. This is significant because the Guidance seeks to dissuade pupils (and staff) from engaging in gender critical conversation, behaviour and thinking. Mindful that this Guidance is issued by the CPS, the reader will feel warned that inappropriate speech, behaviour or thinking may cause them to fall foul of the criminal law.

However gender identity is not a protected characteristic.

The Guidance proceeds on the basis that it is. There is a very significant divergence of opinion within society on what protection, if any, should be afforded to gender identity. In the recent case of Miller v College of Police and Humberside Police 2020 EWHC 225 (Admin) Knowles J acknowledged the societal debate around transgenderism and that there was nothing unlawful with a gender critical viewpoint nor its expression - even if doing so was in language that was profane.

The judge noted: “250.

I take the following points from this evidence. First, there is a vigorous ongoing debate about trans rights. Professor Stock’s evidence shows that some involved in the debate are readily willing to label those with different viewpoints as ‘transphobic’ or as displaying ‘hatred’ when they are not. It is clear that there are those on one side of the debate who simply will not tolerate different views, even when they are expressed by legitimate scholars whose views are not grounded in hatred, bigotry, prejudice or hostility, but are based on legitimately different value judgments, reasoning and analysis, and form part of mainstream academic research. 251.

The Claimant’s tweets were, for the most part, either opaque, profane, or unsophisticated. That does not rob them of the protection of Article 10(1). I am quite clear that they were expressions of opinion on a topic of current controversy, namely gender recognition. Unsubtle though they were, the Claimant expressed views which are congruent with the views of a number of respected academics who hold gender-critical views and do so for profound socio-philosophical reasons.

This conclusion is reinforced by Ms Ginsberg’s evidence, which shows that many other people hold concerns similar to those held by the Claimant.” (b) Single Sex Toilet Facilities In the case of maintained schools, the requirements are set out in Regulation 4(2) of the School Premises (England) Regulations (SI 2012/1943). This states that:

“Separate toilet facilities for boys and girls aged 8 years or over must be provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time” In the case of independent schools, the requirements are at paragraph 23(1)(b) of the Education (Independent School Standards) Regulations 2014, prescribed under section 94 of the Education and Skills Act 2008. This places an obligation on a proprietor to “ensure that ... separate toilet facilities for boys and girls aged 8 years or over are provided except where the toilet facility is provided in a room that can be secured from the inside and that is intended for use by one pupil at a time”

https://safeschoolsallianceuk.files.wordpress.com/2020/04/cps-pre-action-protocol-letter-03.04.20_z.pdf