Direct Sex Discrimination and Disadvantage to women: R (on the application of Coll) v Secretary of State for Justice [2017] UKSC 40

Introduction: Does Law Have a Gender?

Law seeks to regulate how we do and should behave with each other in society. It is traditionally associated with justice. However, what justice means and how it relates to law is contested. Law is supposed to be neutral, objective and impartial, blind to bias, with everyone equal before it. Yet many argue it is structurally biased, like the society it shapes or reflects, to women’s disadvantage. In this short blog, I investigate how litigation can be used as a tool of change and transformation by presenting a short case review of a recent Supreme Court judgment, R (Coll). Before I review it, here is a short introduction to the topic which will be followed up with further entries.

Perhaps as a consequence of the women’s liberation movement of the 1960s and 1970s, women have been drawn to the legal profession so that the volume of women lawyers has significantly increased. Within this changing legal world, questions are increasingly asked about the way different types of people are viewed, reflected and protected by and through law. Although there was work in the past, for example, from Mary Wollstonecraft and campaigners for the suffrage, legal work developed in these more recent times to question different areas of the law to see how girls and women were legally perceived and treated. For example, in criminal law, what are the experiences of girls and women who have been raped or who have suffered domestic violence? How are sex workers treated? In employment law, how have women who are pregnant, or sexually harassed, been protected by law? Why are women and men not paid the same amount of money for work of equal value? 

As women continue to become part of the legal community, with the numbers of law students composed of at least equal numbers from both sexes throughout the Western world, the proportion of women partners at law firms has not significantly increased in many countries, and the pay gap in salaries largely remains, in the legal profession and elsewhere. Women have the equal right to vote but are not equally represented in political or legal life. Women across the world continue to suffer from gender based violence and unequal life chances: see in general www.un.org for much evidence of this.  Many of us in our work as lawyers question the structure and underlying purpose of law and investigate whether law itself is gendered in some way. Could such an investigation into the structure of law show that it favours men’s lives? Does law play a role in reflecting, creating and sustaining an unfairly gendered world which is arranged to women’s disadvantage?

This is a vast topic but in this introduction I have summarised some aspects of these complex and controversial  issues before now briefly analysing a recent Supreme Court decision which found direct discrimination against women in a government policy.

Policies of Discrimination

At the end of May, the Supreme Court unanimously allowed an appeal granting a Declaration that the Ministry of Justice’s provision of ‘Approved Premises’ (‘APs’) – premises where certain prisoners live as a condition of release from prison – constitutes direct discrimination against women. This is unlawful unless justified and the Secretary of State had shown no such justification. 

APs are single sex establishments. There are 94 for men, distributed around England and Wales, including several in London. There are only 6 for women, and none of these are in London. This means that women are much more likely than men to be placed far from their homes and communities. 

The appellant, a female ex-prisoner who on release was required to reside at an AP, brought proceedings seeking declarations that: 

(a) the current provision of APs amounted to

• unlawful sex discrimination, contrary to the Equality Act 2010 (EA) and 
• a breach of her Articles 8 and 14 rights contained in the European Convention on Human Rights through the Human Rights Act 1998; and 

(b) the Secretary of State had acted in breach of s.149 of the EA’s public sector duty of equality by failing to have due regard to the need to eliminate discrimination against women in the provision of APs and to advance equality of opportunities for them. (The high court judge had made such a declaration and this was not challenged by the government at the Supreme Court).

The appellant argued that being required to live in an AP far from home is a detriment which a woman is much more likely to suffer than a man because of the geographical distribution of the small number of APs available for women. Thus this is treating her less favourably than a man because of her sex. She was successful because this practice constituted direct discrimination which can only be justified in limited and defined circumstances. 

The crucial question was whether the limited provision for women was a proportionate means of achieving a legitimate aim. The Court stated that saving costs is a legitimate objective of public policy but, if a benefit is to be limited to save costs, it must be limited in a non-discriminatory way, citing paragraph 66 of O’Brien v Ministry of Justice [2012] ICR 955 ‘budgetary considerations cannot justify discrimination’. The Ministry of Justice never properly addressed its mind to the problem of providing sufficient and suitable places in APs for women which achieve, as far as is practicable, the policy of placing them as close to home as possible. Other options could have been considered, such as:

1. replacing large APs for women with smaller units more widely spread
2. replacing one or more of the existing women’s APs with ones closer to the areas where many offenders have their homes 
3. considering alternative forms of accommodation for women released on licence. 

It is for the Secretary of State to show the discrimination is justified and, the Court said, she had so far failed to do so. 

Lady Hale, the only female Supreme Court judge in history – who is shortly to become the first female President of the Supreme Court which is also to gain another female judge – gave sole judgment with which all the other judges agreed. She referred to the Birmingham schoolgirl case, R v Birmingham City Council Ex p Equal Opportunities Commission [1989] 1 AC 1155, where a system of selection for secondary school places existed but for historical reasons it had fewer places for girls than boys. This meant the passmark for girls in the entrance exams was higher than for the boys. Reference was also made to the retirement-age swimming pool case, James v Eastleigh Borough Council [1990] 2 AC 751. The court stated that it is not necessary to show that there is always discrimination against women: it is enough to show this happened in this case. For example, in the Birmingham case, some of the girls achieved a high enough mark to get a place at a selective school. However, there were some who achieved marks which would have been high enough had they been boys but were not high enough because they were girls. That is direct discrimination on grounds of sex. 

Lady Hale saw no distinction between the Birmingham case and this one. All the women required to live in an AP suffered the much greater risk than the men that they would be sent to an AP far from their homes and families. The fact that some of them would not suffer this detriment does not mean that those who do suffer it have not been discriminated against. In Lady Hale’s words:  

… the material circumstances are that they are offenders being released on licence on condition that they live in an AP. Those circumstances are the same for men and women. But the risk of being placed far from home is much greater for the women than for the men.

So, in summary, there was no evidence and no finding that the aim was to ensure men and women were accommodated in similarly appointed premises. The Ministry of Justice had not:

• addressed the possible impact on women, or
• assessed whether there is a disadvantage, how significant it is and what might be done to mitigate it, or 
• attempted to meet the particular circumstances of women offenders. 

As such, it cannot show that the present distribution of APs for women is a proportionate means of achieving a legitimate aim. 

Litigation as a strategic tool

As a result of this Judgment, an individual woman who is less favourably treated as a result of the provision of APs may bring a sex discrimination claim but it will be open to the Secretary of State to resist the claim on the grounds that it is justified. 
The case has wider implications. It is one of a number of cases where arguments based on the provisions of the Equality Act  2010 and the Human Rights Act 1998 are made to show the unjustified policies that disadvantage and discriminate against women. Discrimination and equality law’s approach can be off putting: for example, the analysis of comparators, proportionality and legitimacy can seem overly technical and even mechanical so that in itself can be interpreted as gendered to male ways of thinking. However, there is much scope to creatively (re)interpret law to obtain legal judgments showing the variety of existing discriminatory practices and policies so that law can be more meaningful for everyone. So while the law can be, and has been, criticised for reinforcing structural gender bias, it can be changed and transformed to increase gender equality and women’s – and correspondingly all men’s – freedom. Litigation is one method of achieving this.