This "Tribunal" Cannot Define "Woman"

How Lobby Groups are Astroturfing Public Policy and Law

The Convention on the Elimination of Discrimination Against Women (CEDAW) is an international human rights treaty adopted by the United Nations General Assembly in 1979. Although the UK signed up to CEDAW in 1986, it has not yet been implemented into UK domestic law.

The CEDAW “People’s Tribunal” was set up in July 2020 by founder Joanne Welch to examine the failure to integrate CEDAW into UK legislation and make recommendations as to how CEDAW can be given full effect with UK law. The “Tribunal” will start on 22nd June and is due to take three days. Despite its official-sounding name it has no recognised legal standing and is not part of the UK system of courts and tribunals that produced binding judgments. 

There is a lineup of barristers and academics attached to this “Tribunal.” The Advocacy Team includes Nazir Afzal QC and Lord Kingswood. Six barristers from Garden Court Chambers are also involved including two silks (Queen's Counsel). The panel of Independent Judges is made up of “five extra-ordinary women” which include Professor of Criminology, Aisha K. Gill, PhD, CBE at the University of Roehampton, Christine Chinkin, FBA, an Emerita Professor of International Law, Professorial Research Fellow and Founding Director of the Centre of Women Peace & Security at LSE, and Professor Fareda Banda at SOAS School of Law and Centre for Human Rights Law.

There is, as yet no information about the “witnesses” the “Tribunal” will call. The website promises “leading class experts” as witnesses “committed to the full realisation of CEDAW into UK domestic legislation” but gives no names. This is perhaps surprising for a “tribunal” hearing that is due to start on 22 June 2021, just one month away.

On the face of it, this “People’s Tribunal” would appear to have a very noble aim—to improve protections for women and girls. However, the difficulty for many is that from its social media posting the “Tribunal” is not operating from a legal framework that acknowledges the definition of woman. For instance, “a female of any age” as provided in the Equality Act 2010, but instead defines “women” as including “transgender women.” This arguably subverts the original intent of the Convention which was to recognise and protect women as a sex class and should be made clear to all those who support this venture, financially or otherwise. 

Supporting changes to the term “woman”— to be defined by self-proclaimed “gender identity” rather than from sex—is exacerbated by the continued failure of this “People’s Tribunal” to answer any requests made over recent months via email and social media to confirm what definition of “woman” underpins their activities. Last week, I emailed the “Tribunal” directly requesting a response within 14 days while urging others to do the same. If we are ignored, then we will escalate this matter. 

The aim of the “Tribunal” appears to be clear—to gather presumed “legitimacy” as a statement of legal intent by involving a number of high profile barristers and academics. The “ruling” of the “tribunal” will then be presented to law and policymakers as having some kind of binding or persuasive force that in reality it does not, and to cement the meaning of “woman” as being simply anyone who identifies as a woman on any given day. 

This is precisely the strategy that has underpinned the “stealth” adoption of the “Yogyakarta Principles” as some kind of legally binding document, rather than simply the conclusions of a political lobby group.

However, those supporting the “People’s Tribunal” ought to consider carefully Joanne Welch’s previous campaigning with the #Backto60 Group. This was reported on by Barbara Rich in September 2020 and also by the Daily Mail. #Backto60 was set up by Joanne Welch to support proceedings by way of judicial review to challenge the legislation that increased the state pension age for women born between 6 April 1950 and 5 April 1960. Money was raised through the Crowdfunder website. 

The judicial review failed quite spectacularly, not least because it was bought 20 years out of time. The Court of Appeal gave judgment on 15 September 2020, determining laws made by Parliament raising women’s pension ages were not discriminatory on the basis of either age or sex under EU law or the European Human Rights Convention.R (Delve and Glynn) v. The Secretary of State for Work and Pensions[2020] EWCA Civ 1199. In March 2021 permission to appeal to the Supreme Court was denied. 

It is not surprising that the campaigners were disappointed by this with Joanne Welch describing the decision as “unconscionable.” However, as Barbara Rich notes, this word is better applied to the activities of Ms Welch’s group: 

what is more “unconscionable” is aspects of the conduct of the #Backto60 campaign. It raised its supporters’ expectations that not only were their legal arguments unquestionably bound to succeed, but also that success on the appeal would lead to “full restitution” of lost pension payments to women affected by the changes. The public messages from the campaign on its crowdfunding page and in social media never varied from overpowering and strident optimism, and a tone of evangelical fervour, coupled with bizarrely expressed suspicion and criticism of any “detractors” or “saboteurs.” Some of the factual assertions made about the case and its progress, including on its crowdfunding page, were positively misleading in important respects.

Further, the overheated rhetoric of the campaign encouraged many who should have known better to suggest that the failure of this case was a failure of the administration of justice, rather than a misconceived case being rightly dismissed. For example, Barabara Rich notes that MP Zarah Sultana commented on Twitter on 15 September 2020 that the woman had been “robbed” of their pensions—an odd verb to describe the operation of the law.

This is important. It is further illustration of the general debasement of our political class, who show themselves increasingly willing to respond to rhetoric and hyperbole, rather than recognise the operation of the law. 

The Daily Mail reported last autumn:

Pension lawyer Jennie Kreser, former legal director at the Occupational Pensions Regulatory Authority, told Money Mail: “The Backto60 campaign was never ever going to succeed. Some very vulnerable women contributed as they felt hard done by. It was just a complete waste of their money.”

This is another unpleasant aspect of the campaign: that it highlighted the lack of regulation of litigation crowdfunding as a whole. Use of the Crowdfunder platform, as opposed to CrowdJustice where money goes directly to the nominated legal team, meant that funds would be paid straight to the #Backto60 campaign—which had been opaque about its objectives, estimated costs and actual expenditures. It seems that the credulity of politicians together with the willingness of others to support ill-defined crowdfunding ventures are carried forward to the “People’s Tribunal.”

The crowdfunding for the “Tribunal” has now been closed but some have pointed out that it was in breach of Crowdfunder’s terms and conditions in 2.6.1 (d) “promptly and accurately respond in full and to our satisfaction to all queries, clarifications or requests made by us and/or any Backer.” Donations therefore risk being based on inadequate and misleading information and this needs to be made known to those who have donated so they can consider seeking the return of their money.

In the same Daily Mail article, the journalist tried to get some clarity from Ms Welchon the issue of the #Backto60 crowdfunding:

When asked about whether supporters might have been misled into believing the court case could bring full restitution, she said: “We have a righteous cause and everything we do, we do with a clear conscience. 

“Everything we have crowdfunded for, every promise, we have kept. These people who think they know better than a world-class legal team — sorry they don't.”

But Mrs Welch hung up before we could put any more questions to her. She did not respond when sent questions asking for information on spending and if she had taken a salary from donations.

It is not clear whether the advocates, Judges or “expert witnesses” at the “People’s Tribunal” are aware of Welch’s murky background or this organisation’s continued refusal to clarify what definition of “women” the “Tribunal” will be using. Either they have made a deliberate choice to support this venture in spite of all these red flags, or they have failed to undertake the reasonable due diligence one would expect from professionals of their stature.

Perhaps even a year ago, the “People’s Tribunal” would have got away with such misleading and ill-defined terms and parameters. But today, after many legal actions taken up on the basis of ill-defined terms of the word “woman”, many people are joining the dots. We will not permit this dubious “show trial” to become some Trojan horse to bamboozle MPs into thinking that the conflation of sex and gender is something that has majority support or resonance in reality. We will not allow for this to be implemented into our domestic law without one hell of a fight. 

Perhaps along the way, this will also shine a light on the need for crowdfunding for legal action to be better regulated. I am an enthusiastic supporter of “lawfare” as legal action seems often the most effective way to make organisations understand the risks of operating without a sound legal basis. But those who seek to bring change via the law, must always be pragmatic and not become lost in the "righteousness" of their cause. Those who give their £10 and £20 that they may struggle to afford, deserve to have the clearest information about precisely what the cause they support intends to do with their money. 

One key question remains: why the refusal to clarify what this “People’s Tribunal” is using as the definition of “woman”? If you believe that a “woman” is defined not by sex but by the gender identity that the individual later adopts, why has the “People’s Tribunal” not clarified this? Even if this is not a position with which I agree, it is a position that can be argued. Why simply ignore all attempts at clarification? To me, this suggests that silence is either about shame or it is about deliberate trickery, a willingness to plough ahead eliding any form of clarification at the expense of women. 

Whatever the outcome of this “People’s Tribunal” we must be ready to clarify to our elected representatives, that this is not in our name. And any political influence this “Tribunal” hopes to have must be seriously diminished by its repeated failure to answer the most basic question about its basis of operation.