In July 2024, uniformed Northumbria Police officers marched in the Newcastle Pride in the City parade, with the Chief Constable at their head. Officers carried Pride flags and wore uniforms with the word “Police” in Pride colours. A Police stall “displayed the Progressive Pride Flag and the blue, pink and white colours of the transgender pride flag”, while a nearby Police van also bore transgender Pride flag markings.
Lindsey Smith, a self-described “gender critical” lesbian, objected to this. She believed that Northumbria Police were “associating themselves with the views of supporters of gender ideology and transgender activists” and that this breached their duty to be impartial; that is, that there was a genuine concern Police might not respond fairly if they were asked to intervene in disputes between supporters and critics of gender ideology.
The Chief Constable disagreed, saying that Police participation in the 2024 march was lawful taking into account factors like hate crimes suffered by the LGBT+ community, the particular vulnerability of members of the trans community, the “isolation, exclusion and stigma” they experience, and the importance of Police demonstrating that they provide an “inclusive environment”.
Smith asked the Court to determine whether the Chief Constable’s 2024 decision was lawful so that any finding could inform her decision-making about the upcoming 2025 march.
The parties’ views
The Court began by seeking to understand the parties’ views. Linden J accepted the evidence of a professor of philosophy that “gender ideology” includes the beliefs that “each person has a gender identity which may or may not match the biological sex which is assigned to them at birth ... it is a person’s gender identity, rather than their biological sex, which makes them a man or a woman, or gender non binary.” By contrast, “gender critical views” include the beliefs that “biological sex in human beings is real, binary and immutable. It is what makes a person a man or a woman. They typically deny that everyone has a gender identity. They also believe that gender ideology rests on sexist and regressive assumptions”.
The Court also accepted the evidence that “most or many Pride organisations have become strongly committed to gender ideology and the policy objectives which flow from it.” Thus, the Progress Pride flag—featuring the blue, pink and white of the transgender Pride flag superimposed on the rainbow colours of the standard Pride flag—“conveys more than generalised support for trans people: it conveys support for gender ideology.”
An examination of the march organiser’s objectives confirmed that this was their position, emphasising for example their commitment to eliminating discrimination on the basis of “gender identity and expression”. Linden J considered that the “overall consensus” of the march was one of “support for the transgender community and transgender rights.” The organiser had also made public statements to the effect that anyone holding gender critical beliefs was not welcome in the march and would be asked to leave and, if necessary, removed.
The Chief Constable herself had expressed general support for the organiser (though not for those specific statements), saying earlier that it was “incredibly important that we participate in the Pride March, stand with our LGBTQ+ colleagues and continue to uphold our allyship”.
Conflicting duties?
Police officers were under a duty of impartiality. The Police Act 1996 required every individual officer to serve “with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people.” The Police Regulations 2003 prohibited officers from “any activity which is likely to interfere with the impartial discharge of his duties or which is likely to give rise to the impression amongst members of the public that it may so interfere.” Officers, therefore, may “not take any active part in politics”.
The Chief Constable pointed out that she was also under a public sector equality duty, found in the Equality Act 2010. This required public authorities to “have due regard to the need to: eliminate discrimination...; advance equality of opportunity ...; foster good relations ...”.
Essentially, the claimant argued that the duty of impartiality militated against Police participation in the march, while the Chief Constable argued that the public sector equality duty meant that the decision to participate was within her lawful discretion.
Was the Chief Constable’s decision irrational?
The claimant challenged the Chief Constable’s decision on the basis that it was irrational; that is, no reasonable decision-maker could have made that decision. The Court’s approach to these questions will operate on “a sliding scale of review, more or less intrusive according to the nature and gravity of what is at stake”.
The irrationality challenge had two distinct limbs to it, process rationality and outcome rationality.
Process rationality means that the decision must be made by a reasonable process: it “includes the requirement that the decision maker must have regard to all mandatorily relevant considerations and no irrelevant ones, but is not limited to that. In addition, the process of reasoning should contain no logical error or critical gap ...”
Outcome rationality considers whether, “even where the process of reasoning leading to the challenged decision is not materially flawed ... the outcome is ‘so unreasonable that no reasonable authority could ever have come to it’” or, to put it another way, the outcome was “outside the ‘range of reasonable decisions open to a decision-maker’.”
The statutory context
“The starting point of any rationality analysis is to consider the statutory context in which the impugned decision was taken,” said Linden J. He considered that the duty of impartiality is “rigorous”, and that “Intrusive state powers are vested in [the Police] on the basis that those powers will be exercised impartially.”
The Chief Constable also had a particular responsibility, given her position, to uphold the commitment to impartiality and to treat such issues “with considerable care”.
Process irrationality
Linden J began by saying that a rational decision maker would have asked whether participating in the march was likely to interfere with their duty to be impartial and, if not, whether it was nonetheless likely to be seen that way by the public. A rational decision maker, he said, should be cautious in making these assessments, particularly as “their own views as to what is or is not political or controversial may not necessarily be shared by all members of the public. It is easy to fall into the trap of thinking that views with which one agrees are or must be uncontroversial.”
The Chief Constable argued that the duty of impartiality had to be interpreted in such a way that it was compatible with her public sector equality duty. This, said Linden J, was an error of law. The duty of impartiality is a substantive duty; the public sector equality duty “is not a duty to achieve a result” but simply to have “due regard” to the listed objectives. It “does not, and cannot, qualify or compromise a police officer’s duty of impartiality.”
For this reason, and because the Chief Constable’s arguments and evidence failed to grapple with specifics and relied in places on mere assertions that he said amounted to “whataboutery”, Linden J considered that her decision failed the requirement for process rationality.
Outcome irrationality
His Honour also held that the Chief Constable’s decision amounted to an irrational outcome. It was clearly contrary to her and her officers’ duty of impartiality to participate in the 2024 march in the way they did, given the organiser’s objectives and the associated imagery and messaging:
A key reason for taking part in the March was publicly to support the beliefs and aims which the March represented and sought to promote ... Moreover, the fact that they wore their uniforms, marched as a contingent, and carried the Police Pride and other flags demonstrated their support for the cause as police officers.
This was likely to give members of the public the impression that Police would not be impartial, a position strengthened by the Chief Constable’s own presence at the head of the Police contingent, and the transgender Pride markings on the Police stall and van. All of these factors “served to add to the impression that the Force as a whole was associating itself with a particular viewpoint and, as far as gender critical people were concerned, taking sides.”
This was, or should have been, “sufficiently obvious” to the Chief Constable that the decision she made was “outside the range of reasonable decisions open to her.” She was “bound to decide that such activities could not be authorised.”
Conclusion
The Court had to consider arguments that the claim was merely academic, as it related to the events of 2024 and the Chief Constable was proposing a different approach in 2025 (that only off-duty, non-uniformed officers would be allowed to participate, though they would be wearing t-shirts saying “The National LGBT+ Network: Police with Pride. 10th Anniversary Conference”). Linden J considered that the claim was not academic, as it would inform decisions about the 2025 march that were still to be made.
Even if the claim was academic in a technical sense, there was still public interest in resolving it: “The issues raised by the Claim are important, current, controversial and of public interest.” Further, it was:
unattractive for a person, such as the [Chief Constable], holding high public office and with responsibility for law enforcement, to argue that her decision should not be subject to any scrutiny at all by the Court in a case such as the present. ... The [Chief Constable’s] attempt to keep her options open, and to avoid legal challenge at the same time, has a tactical flavour which does not seem entirely consistent with the public interest.
However, because the claim had been framed in terms of uniformed officers’ participation, Linden J declined to decide whether participation by non-uniformed, off-duty officers would also be irrational.
Lastly, His Honour noted that there could have been “a respectable vires argument” that the Chief Constable had no power to permit officers to act in a way that was contrary to their duty of impartiality.
The claim, though, was not argued on that basis but on the basis of irrationality, and Linden J declared that the Chief Constable’s decision was, in fact, irrational.
R (Smith) v The Chief Constable of Northumbria Police [2025] EWHC 1805
Image credit: Northumbria Police / X
