Transition – 10 years on

by robin moira White, barrister, Old square chambers

August 2021 marks 10 years since I became the first barrister to transition from male to female at the discrimination bar. Much has changed but not all for the better.

back then, the equality Act 2010 was new and the profession was getting its head around the changes it introduced, not least on gender reassignment discrimination where the 2010 Act had removed the medical diagnosis requirement that the previous 1999 regulations had required. the more recent loud arguments about self-identification of gender appear to have ignored the fact that the equality Act has had self-identification of gender reassignment for over a decade now and the walls of Jericho have not fallen.

britain itself seemed rather different then. Under the coalition government, a confident britain looked forward to the 2012 Olympics, LGbt folk knew that same-sex marriage was finally on the cards. How could we have predicted that we would find the country 10 years later I the hands of a rump tory government, the first country ever to imposed trade sanctions on itself in which bigotry and hatred of minorities – one minority in particular – would be being validated by significant public figures. cameron and corbyn have much to answer for.

but in ignorance of the changes to come I finally took the step of transition and on that Autumn Day walked into chambers for the first time as myself. A good friend had advised me to get my story ‘out there’ myself and a piece appears in the law section of the times written by Francis Gibb. reflecting the changes to britain, the times was still under its last real editor, James Harding. my transition was delightful, with wonderful help from chambers, professional colleagues and friends, and I got on with settling into middle age. the decade since has seen the rise of a number of unpleasant anti-trans organisations. they often have worthy-sounding names but are easy to spot if you look at the material they put on their websites and distribute. It is highly reminiscent of the anti-gay material familiar to those of us who remember the 1970’s and 80’s when section 28 stalked the halls and gay men were said to pose a threat to children. Now trans women are said to pose a threat to women and girls and responsible public officials who should know – and act - better feel able to endorse statements suggesting trans people are ‘dangerous’. strangely enough, the trans friends I have are lawyers, medics, entrepreneurs, and public servants and pose a threat to noone. When using the loo in sainsbury’s on a saturday, I am there to ‘pee’ and for no other reason. but many trans people are deeply affected by the moral panic being whipped up with delight by the ‘nasties’ and their allies in the media. but britain threw away its membership of the european Union based on scare tactics and innuendo, so why should this not be effective? there is an attempt to capture the language by characterizing being trans as a ‘debate’ and an ‘ideology’. It isn’t. It is a very real state of being. It would be amazing if I, as an isolated teenager in rural somerset in the 1970’s had managed to invent the same ‘ideology’ as everyone else. being trans can be really tough and those who wish to populate cyber-space with unpleasant anti-trans rhetoric might do well to take a moment to think of the consequences of their actions on real people. Fortunately, the position in the courts is rather different. chambers and Partners were kind enough to describe me as the ‘go to’ lawyer for trans cases. I act for both employers and employees and have gently grown this as an area of my discrimination practice over the past decade. It is a source of pride that both ends of the trans issue spectrum have felt able to come to my conference table and receive objective advice about when the law really is. In may, with my wonderful chamber’s colleague Nicola Newbegin and some top rank contributors we published ‘A Practical Guide to transgender Law’ which we hope will establish itself as the leading text in the area. It seeks to be an accurate statement and explanation of the law as it is, not a campaigning book. One reviewer described it in the employment Lawyers Association monthly magazine ‘briefing’ as ‘authoritive, knowledgeable, objective and highly readable’. so we have one fan at least. I also speak regularly on trans matters. trans has been keeping the courts busy and the so-called ‘gender critical’ groupings have made crowd funding of litigation their weapon of choice. However the results have been rather patchy. the bell v tavistock judgment which criticised the use of puberty-blocking drugs for trans children seems likely to be overturned by the court of Appeal. A challenge to equality and Human rights commission guidance on the equality Act embarrassingly failed at the permission stage, and Prison service policy on the treatment of transgender prisoners was upheld in the High court. the Forstater judgment means rather less than ms Forstater would have everyone believe and harassment of trans people in the workplace remains unlawful. In scotland, where prospects for legislative reform are brighter, the inclusion of trans women on government panels has survived a legal challenge. Under the present UK government progress on discrimination rights is even less likely than a rapid return to eU membership but forward motion continues in the courts as represented by taylor v Jaguar Land rover last year which recognised non-binary (and by extension other complex) gender identities as protected under the equality Act. An area to watch will be guidance for schools on dealing with trans children. this not an easy area and schools do need help. the england and Wales equality and Human rights commission promised national guidance for some years. A well-written completed version was available but spiked by their unsupportive political masters who, it is reported, wanted something far less supportive of trans pupils but a version which achieved that within the law could not be achieved. the scottish Government have had more courage and recently published excellent guidance and the Welsh Government is consulting on doing the same. this has left english education authorities isolated and many have been unwilling to bear the cost of resisting legal challenges by gender critical groups or parents. Oxfordshire withdrew their guidance believing the eHrc guidance was in prospect and a Welsh local authority have been a recent casualty. At least one local authority is, to my knowledge, standing ready to end this particular game of ‘whack a mole’. several anti-trans groups publish superficially attractive schools guidance which when read can be summarised as ‘don’t support trans children’. Following these groups’ guidance would leave schools open to legal challenge. Not helpful. If the above all seems a bit ‘doom and gloom’ one area gives me hope for the future. I am privileged now to spend some of my time with law students and junior lawyers. the upcoming generation ‘get’ trans and complex gender identities and regard the opposition to recognizing such folk as rather odd. As they replace our current leaders I am sure the landscape will look rather different in 20 year’s time. We just been to survive the next ten. the one certainty is that there will be more litigation.

Robin Moira White, barrister, Old Square Chambers

robin became the first barrister to transition from male to female in practice at the discrimination bar in 2011. she practices in all aspects of employment and discrimination law and lectures regularly on the area.

How AI and intelligent automation must be on the agenda for reducing the UK Justice Backlog

The UK’s Criminal Justice System has almost been brought to a standstill this past year. While case numbers were already mounting before the pandemic hit, there is now a record backlog of almost 58,000 Crown Court cases.

by Alex case, senior Director, Industry Principal, emeA Public sector at Pegasystems

Areport published in march by the House of Lords constitution committee said funding cuts had already left courts and tribunals struggling going into the cOVID-19 pandemic, and were exacerbated by a “regrettable” failure to plan for such a threat.

the problems with the justice system are only a part of how many public services including health, welfare and education have been put under extreme strain by the pandemic and are progressing into 2022 with huge backlogs. there is a clear need for central government to provide a detailed plan for how all of these public services can get back on track. However, having made huge expenditures to safeguard jobs and businesses during the lockdowns, any talk about cOVID-19 recovery for public services hits the hard reality of a likelihood of spending freezes or cuts being imposed across many departments, in order to start paying down the increased deficit. so the ministry of Justice is likely to be asked to claw back budgets with new savings, even as the backlog in courts grows higher, denying justice to victims and defendants alike and putting staff and legal professionals under increased stress. expert voices like James mulholland Qc, chair of the criminal bar Association have have called for opening up more capacity to get more cases heard and completed; and to be fair, the government has made available emergency funding to open up more temporary courtrooms. Greater capacity alone however will not solve the backlog problem. there is a clear need to also look at how technology can help improve the administrative processes to drive down the backlog. Any advantage from opening more courtrooms or increasing the sitting time of judges will be lost if the administrative processes remain inefficient. typically, the root cause of this is how the systems and data used to progress a case reside in too many separate systems and databases, together with the lack of aligned incentives and sanctions to drive the timely progress of cases. Despite the ongoing rollout of the new common Platform It system (with which I was involved when I worked in government), data silos, fractured systems and manual processes and workarounds will continue to undermine any policy coming out of the UK government to improve the justice system. streamlining the way cases are processed can ensure that everyone involved gets a fair chance, whether they’re in the criminal, civil, or family court system. Automating everything you can in the justice ecosystem, whilst fully respecting judicial independence, makes it easier to turn decisions into outcomes.

Improving the UK justice system from its current situation will be challenging. change will viewed in the context of the legacy of spending cuts, court closures and sometimes less than successful It investments.

Yet there are examples of how this can be done in other jurisdictions. these often utilise process automation technology and artificial intelligence to help streamline how cases are brought to trial and processed. One great example is the Us state of New Jersey, where around seven million new cases are filed in the state-level court system every year. In the last few years, this state has transformed how it processes cases through its court systems. Key to this was a unified complaint entry (Uce) system used by police officers and courtroom staff.

With Uce, all 40,000 New Jersey police officers enter complaints or tickets directly into a single system. the system automatically manages each case from initial entry, generates the court date for the defendant and manages the entire lifecycle of the case. Artificial intelligence (AI) capability within Ace automates judicial administrative processes to manage the lifecycle of a case to ensure the efficient and accurate flow of information to all judicial parties. this seamlessly works from the pretrial detention process to a judge’s final decision on detention or release of a defendant.

What is striking about the New Jersey example is how fair but swift justice is being achieved without eye-wateringly high costs. From start to finish, court

staff are now able to complete initial processing of a defendant in under 20 minutes, when previously this took courts three hours to complete. this includes an in-person interview, recommendation to a judge, and risk assessment processing. there are around 80,000 defendants to process per year, and the time savings from this process alone are significant. Overall, the New Jersey courts estimated that the new unified complaint management system is 87% more efficient than the previous approach. these improvements in how the court system is processing cases are also achieving cost savings for taxpayers. the new systems achieved immediate savings of over $5 million from the new systems simplified processes. A concern for any government department embarking on the kind of transformation achieved in New Jersey will be whether this new system will keep pace with future changes in legislation or judicial sentencing guidelines. the answer is making sure the new technology breaks away from traditional big software offerings that are inflexible and can be out of date before they are fully implemented. the New Jersey system is built on a ‘low code’ business process modelling approach to designing and building software to automate processes. this means staff are able to make many changes to the software themselves without needing software coding skills, cutting the future costs of how the system is maintained or adapted to comply with new laws and policies. Judicial decision-making is being put under severe pressure in the UK justice backlog. While the concept of justice by algorithm needs much greater debate and agreement, there is a role for AI in supporting judges and magistrates when they look at cases. In New Jersey, the court system also developed an AI-powered application called the Public safety Assessment (PsA) to assess defendant risk. Using business rules and approved government policy, PsA generates a score that assesses the risk of a defendant to society based on factors such as criminal history, employment status, living arrangements etc. the PsA provides a score to the judge that assesses the risk of the defendant failing to appear in court. these risk scores enable judges to make more informed, real-time decisions when determining the appropriate next best action for a defendant pre-trial. the end result of this use of AI in justice appears positive. the PsA has helped ensure low-risk defendants are able to continue earning income for their families before trial and highrisk defendants remain in jail. It also reduces prison overcrowding and the associated taxpayer costs which can be as high as $1 billion a year in the state. Artificial Intelligence coupled with intelligent automation should be seriously considered to address the significant backlogs facing the UK’s courts system. Using this technology, it is possible to prioritise and triage cases by quickly conducting intelligent risk assessments of each defendant using pre-determined rules and criteria. While the UK’s criminal Justice system has started to digitally transform, through the use of electronic case files and eliminating data siloes by unifying disparate data sources, more can be done to automate processes and make real-time decisions using predetermined rules about a defendant’s path through the court system.

Alex Case, Senior Director, Industry Principal, EMEA Public Sector at Pegasystems

Alex is an internationally experienced public sector reform and government delivery and analytics specialist with extensive experience as both a senior civil servant and management consultant. He has led large-scale public sector reform initiatives in both the UK and canada and has held a number of positions at the heart of government including in No10, cabinet Office, Hm treasury and the ministry of Justice.