Girl seeks judicial review of Crown Prosecution Service transgender ‘bias’ The Times 08.01.21

The original article is here.

The Crown Prosecution Service has “compromised its independence” with its support for Stonewall, the LGBT rights group, and risks bias in its approach to transgender issues, according to a legal challenge brought by a 15-year-old girl.

Judges will be told that there is a “real possibility of partiality” when the CPS decides whether to prosecute allegations of hate crime against transgender people because it has connections with the charity.

The teenager will seek permission for a judicial review in the High Court on Tuesday over the CPS’s membership of Stonewall’s “diversity champions” programme. The legal service is one of more than 850 organisations in the programme, which aims to ensure acceptance in the workplace for lesbian, bisexual, gay and transgender staff.

In court documents seen by The Times the claimant, who cannot be identified because of her age, argues that the CPS has “compromised its independence because of Stonewall’s vigorous campaign to change the law to promote the interests of those who identify as transgender”.

The grounds for judicial review, prepared by Sinclairs Law, say: “This in turn leads to the real possibility of partiality on the part of the CPS when deciding whether to prosecute allegations of hate crime in the transgender context.”

The application, which is crowdfunded, will rely on a witness statement from Jo Phoenix, a professor of criminology at the Open University, who argues that “there is a perception of bias in that the CPS has aligned itself” with a pressure group on a matter of controversy.

Stonewall believes that gender identity should be treated as a protected characteristic with legal protection under the Equality Act 2010. The charity has lobbied for the dismantling of single-sex spaces and supported puberty blockers for children exploring whether they are transgender.

Last year the CPS issued guidance for schools on transgender bullying, warning that they could face legal action if they did not allow transgender pupils to use their preferred lavatories.

It was forced to withdraw the guidance after the schoolgirl, then 14, argued that it was distressing and failed to take her rights into account. She argued that she could be at risk of hate crime prosecution if she objected to a biological male who identified as transgender being in a women’s lavatory.

The CPS promised an internal review of the guidance but the girl argues that this will not be impartial while the organisation is a Stonewall champion. Her lawyers asked the CPS in May to withdraw from the programme but it refused, saying that it would not affect its ability to conduct a review. The CPS said: “Stonewall will play no part whatsoever in the review, which will be conducted by the CPS in conjunction with advice from senior independent counsel.”

The Safe Schools Alliance, which is supporting the girl’s application, said: “The CPS must be impartial and uphold the law fairly for all. They are unable to do this whilst being aligned with Stonewall.”

Many police forces, local authorities and NHS organisations belong to the diversity champions programme which Stonewall’s website says is the “leading employers’ programme for ensuring all LGBT staff are accepted without exception in the workplace”

It says: “We work with over 850 organisations, all of whom share our core belief in the power of a workplace that is truly equal. Through them we’ve helped create inclusive and accepting environments for almost a quarter of the UK workforce.”

A CPS spokesman said: “We have responded to the judicial review making it clear that our status as a Stonewall Champion plays no part in our decision making. It is purely to show that the CPS is an employer that respects the identities of our LGBT+ staff.”

Nancy Kelley, the chief executive of Stonewall, said: “We strongly refute any suggestion that our diversity champions programme has rendered the Crown Prosecution Service ‘biased’ in any way. It is not biased to engage in making your workplaces inclusive of LGBT+ people. The diversity champions programme is vital as more than a third of LGBT staff (35 per cent) hide who they are at work, while one in five (18 per cent) have been the target of negative comments because they’re LGBT. We’re proud to work with so many different organisations who want to create spaces where every LGBT person is accepted for who they are.”