DH - David Hay KC, barrister for the respondent

NC - Naomi Cunningham, barrister for the claimant

KM - Katy McTernan (a member senior management Edinburgh Rape Crisis Centre, the Respondent)

MW - Mridul Wadhwa (chief executive of ERCC)

GI -gender identity 🤡

SU - service user

SW - support worker

more here https://tribunaltweets.substack.com/

Judge and panel members arrive.

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 an SU indicated a desire for a woman GI person, we would allocate that to them.

DH - is there provision of women-only spaces 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 an NB support worker?

KM - yes, we have had SUs asking for women-identifying SW.

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, the grievance, 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 organization.

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 a 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 mammals and mammals can't change sex

KM - I'm aware

NC - and those people believe that bodies determine sex, if small gametes are organized = male, large gamete organized = 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 the 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 it is transphobic

KM - pause, taking a moment,

J - take as long as you need

KM - what I would see with that is if you don't recognize trans people, you're denying their reality, that's transphobic

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, or 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 - it is 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 could not 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 women only on a biological basis

NC - it's not just ERCC, it's a belief system that denies women the right to 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, gynecologist, bra fitter)

KM - I don't understand how your question relates to ERCC

NC - analogises GI to the 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 examines her after rape.

KM - I don't agree that follows on from that.

NC - referring to the staff handbook, staff setting aside personal beliefs, offering women-only space, and offering SU the 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, and 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 driver's 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 a 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 identity

KM - they say 'assume the gender of AB'

NC - do you agree that people often say gender as a word for biological sex

KM - yes

NC - so it's at least possible that the SU is asking about sex, it is 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 - let us use another example, discussing Eddie Izzard, if a SU turns up they would be traumatized 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 an NB person turned up whose 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 person's 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 the 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's biological sex

NC - so you are saying there are no circumstances in which you would enable an SU to be sure sitting alone in a room with, discussing details of her sexual assault - there is no way you could assure 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, the response is not consistent with these aspects of the staff handbook

KM - I believe our service is consistent with these requirements.

NC - if a service user had asked if RA was a woman and told yes, would that give rise to 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 acknowledging these things, it would be good to have a clear organizational 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 on 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 organizational 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 a 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 an 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 - that passage is evidence of 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 that's 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 environment.

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,