On the 24th of June, with the support of the Christian Legal Centre, Blessing Olubanjo, a member of the Christian People’s Alliance Party and long-time Camden resident issued a pre-action letter to Camden Borough Council over a pedestrian crossing painted in the colours of the transgender flag to celebrate the scandal-ridden and now shuttered Tavistock gender identity clinic. The letter threatens suit on several grounds, including breaches of various traffic related statutes and regulations, the statutory breach of the Local Government Act1986, and breaches of the Council’s public sector equality duty.
The crossing, located at the junction of Tavistock Place and Marchmont Street, cost taxpayers approximately £10, 000 and was installed despite opposition from the blind community that the crossing could cause confusion and safety issues to the seeing impaired.
The transgender flag was conceived by Monica Helms, a trans activist, in 1999. The flag is purportedly meant to symbolise the transgender journey:
The trans flag was created in 1999 by Monica Helms, a trans woman. The flag was first flown at a Pride Parade in Phoenix in 2000. The light blue represents boys, and the pink represents girls. The white is used to symbolize those who are transitioning, those who feel they have a neutral gender or no gender and those who are intersex. The pattern was strategically picked so that, regardless of which way you fly the flag, it will always be correct. Helms chose this orientation to symbolize those trying to find correctness in their own lives.
While the crossing has been in place since 2021, Ms Olubanjo only recently became aware of it.
The Tavistock Clinic
The Tavistock Clinic was launched in 1989 to treat people 17 and under with gender dysphoria. However, since 2010, the number of referrals to the clinic skyrocketed by 20 times. Whistleblowers, like Dr David Bell, had been highly critical of the Tavistock Clinic and the effect it might be having on children. He was concerned about the lack of data relating to the efficacy of transgender affirming care of minors, the lack of safeguarding mechanisms to prevent children from being unnecessarily transitioned, and the lack of treatment for root causes of gender dysphoria where the assumption was that transitioning, and transitioning alone, was the clinically correct treatment.
The clinic was also scandal-plagued when it came court challenges, such as that of Kiera Bell, who, at just 16 years of age, began the medical transition from female to male. As a result, she had a double mastectomy at the age of 20 which left her with no breasts, a deep voice, body hair, a beard, and affected sexual function. She is also likely to be infertile as a side effect of the drugs she took during her transition.
In 2020, one year before the installation of the transgender crossing celebrating the clinic, the Cass Review was commissioned, which ultimately led to the closure of the clinic because of systematic safeguarding failings. The review noted with concern the change in the demographic of those seeking to transition, including those who suffered from autism, a comorbidity of gender dysphoria.
There are a number of reasons why a transgender crossing, or other overtly LGBT campaigning style crossings, may be illegal.
Road Management Duties
Councils, like any body of government, owe road and network management duties under the Road Traffic Regulation Act 1984 and the Traffic Management Act 2004. The statutes, in part, regulate safe traffic movement, including at pedestrian crossings. The principal way in which road markings are currently defined is in the Traffic Signs Regulations and General Directions 2016 (SI 2016/362). Pedestrian crossings are highly regulated and limited by the symbols used and colour of the markings. The transgender crossing is in breach of these prescriptions. Any deviation from the regulations requires a direction from the Secretary of State permitting a departure from the prescribed colours, a direction the Council has yet to evidence.
The fact that the crossing causes a distraction to drivers and may cause confusion to the visually impaired further implies breaches of the Council’s statutory road and traffic obligations.
The Local Government Act
Section 2 of the Local Government Act 1986 states in pertinent part:
“(1) A local authority shall not publish, or arrange for the publication of, any material which, in whole or in part, appears to be designed to affect public support for a political party.”
“(3) A local authority shall not give financial or other assistance to a person for the publication of material which the authority are prohibited by this section from publishing themselves.”
The exercise of council powers to grant consent to itself to install a transgender crossing constitutes assistance under S.2(3) of the Act and is tantamount to exercising a quasi-judicial power. Publication under the act is defined broadly and would include political messaging such a transgender crossing.
The Code of Recommended Practice on Local Authority Publicity 2011 warns: “19. Where local authority publicity addresses matters of political controversy it should seek to present the different positions in relation to the issue in question in a fair manner.” The Code also speaks against any such publications in the run up to an election or referendum.
Arguably, the installation of the crossing at a time when the Tavistock Clinic was under independent review and was subjected to mounting scrutiny and scandal, amounts to a clear breach of the Council’s obligations under the Local Government Act.
Apart from this specific crossing, transgender issues continue to be a source of public controversy. The Department for Education’s draft guidance on gender questioning children was a game-changing shift in government policy on social transitioning for children. This is reflected in the Keeping Children Safe in Education statutory guidance. The Supreme Court has also ruled on transgender issues, removing any doubt that the definition of sex under the Equality Act 2010 means biological sex and excluded gender identity. As a result, the EHRC is in the process of updating their guidance, and how it might apply to single-sex spaces.
The use of transgender crossings as a political or campaigning tool, especially at a time where the issue is so controversial and in flux, leaves councils susceptible to challenge.
The Public Sector Equality Duty
The public sector equality duty is laid out by s.149 of the Equality Act 2010 and provides:
(1) A public authority must, in the exercise of its functions, have due regard to the need to –
(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act;
(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;
(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.
While a narrow argument can be made that a transgender crossing serves the promotion of diversity, it certainly cannot be said to foster good relations between persons with different protected characteristics. The crossings are highly contentious, and may be viewed as offensive and aggressive by those with deeply held religious or philosophical beliefs to the contrary, or by feminists and the gender critical.
Moreover, the crossing was challenged by disability campaigners over the threat it causes to the seeing impaired, a fact reflected in the Council’s equality impact assessment.
The principles of tolerance and diversity should not be used to bludgeon those who dissenting beliefs. It certainly should never be used as an excuse to defend potential harm to the disabled.
At the end of the day, the issue comes down to whether our local governments are being wise stewards of our money, and whether they are respecting the entirety of their electorate. Where a local government, like the Camden Borough Council, grants itself consent and financial assistance to campaign on issues which a great many people in this nation find unnecessary or even offensive, an abuse of trust occurs. More than that, there is a very real possibility that they are abusing the law as well. The threatened legal challenge by Blessing Olubanjo is very real, and it has merit. Camden Borough Council beware.
