Transgender lives and 'that' Supreme Court judgement

 

If you’ve seen one of today’s UK papers or seen the news online or on TV yesterday or today, you’ll know that our Supreme Court handed down their landmark ruling on the definition of the term ‘woman’ in the context of equalities legislation.

The key point of the ruling is that references to ‘women’ or ‘sex’ in the Equality Act 2010 are now determined to be references to ‘biological women’ and ‘biological sex’. That may sound esoteric, but it is already having a major impact on transgender (I’m using the term to include transgender, non-binary and intersex) people and will almost certainly have even more impact in the future.

The practical impacts start now.  The British Transport Police have already stated publicly that as an interim measure, transgender women will be searched by male officers.  That includes strip searches…  So much for dignity.

The EHRC have said they will pursue hospitals if they don;t change their gender policies, if they don't place patients in the wards of their birth sex.  I’ve commented on that below.

Coming back to the judgement itself:  The court ruled that using the term ‘sex’ to include ‘certificated sex’ (i.e. with a Gender Recognition Certificate (GRC)) would cut across clear definitions. I’ve never actually heard that term before and, believe me, if it were in use I would have heard it.

The Govt’s own notes (on gov.uk) on the Gender Recognition Act say that:

·       “The purpose of the Act is to provide transsexual people with legal recognition in their acquired gender. Legal recognition will follow from the issue of a full gender recognition certificate by a Gender Recognition Panel.”

·       “In practical terms, legal recognition will have the effect that, for example, a male-to-female transsexual person will be legally recognised as a woman in English law.”

Enabling such recognition was the whole point of the Gender Recognition Act – but yesterday’s ruling says that a Gender Recognition Certificate does not change a person’s legal sex for the purposes of the Equality Act 2010.  That is also stated baldly on the EHRC’s website.  This reverses the provisions of the GRA and removes my legal status, and that of other transgender women, as a woman.  It also, obviously, removes the legal status of transgender men.  Non-Binary people are also invalidated in yesterday’s ruling but, sadly, they have never had legal validation under UK law to start with.  Their inclusion under the protected characteristic of gender reassignment has depended on case law rather than such inclusion being explicitly stated.

Th court ruled that ordinary language recognizes and refers to ‘biological sex’.  I disagree – “the meaning of a word is its use in speech” (originally: Die Bedeutung eines Wortes ist sein Gebrauch in der Sprache) – Wittgenstein.  Many people in wider society use the words ‘sex’ and ‘gender’ synonymously and interchangeably.

It was also ruled that interpreting ‘sex’ to include ‘certificated sex’ weakens protections given to those with other protected characteristics.  If it does, it does so at the cost of transgender people’s rights and freedoms.

Whether or not someone has a GRC, there will be impacts on other provisions such as provision of separate spaces and services

Take changing rooms for example.  Surely, if changing rooms were individual cubicles, that would protect everyone’s dignity in any case!  Supermarkets like M&S already work like that.

The ruling will also mean transgender people being forced into hospital wards of their birth sex.  I am old enough and ugly enough to look out for myself, but that isn’t necessarily true for younger trans people, and it could put people we’re sharing wards with in very awkward situations.  It would forcibly ‘out’ people against their will.  I know that different trans people are at different stages of their transitions but there must be scope for intelligence, compassion and common sense.

Many transgender, non-binary and intersex people already face aggressive challenges when using the appropriate toilet facilities.  Many non-gender conforming cisgender (happy in their birth sex) people are also being challenged and victimised when using them.  If it is ruled that people have to use the facilities of their birth sex, this will result in trans men having to use the Ladies and trans women the Gents at the risk of great embarrassment and danger of violence.  In many places, the only gender-neutral toilets are the accessible (“disabled”) ones.  Two things to note are that (i) being transgender is not a disability, and (ii) that people with invisible disabilities are already challenged for using accessible toilets.  They could face increased challenges if people believe them to be trans.  Incidentally, transgender people have been using the toilets of their affirmed sex since public toilets began.

It is more likely that trans people will feel unable to use public toilets, effectively being ‘on a urinary leash’ that will significantly affect everyday life.  So much for days out, museum visits, concerts…  So much for employment in many cases!

The judgement noted impacts on provisions such as associations, charities, and sport.  There is already potential exemption in the Equality Act for single & separate-sex services when it is a ‘legitimate & proportionate response’ in a given situation, but very few service providers use that exemption.  My concern is that service providers will think they have to implement those exceptions and exclusions in all circumstances.

Lord Hodge told the court yesterday that: “The unanimous decision of this court is that the definition of the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex but we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another. It is not.”  I’m sorry, your Lordship, but I beg to differ.  It is.  It takes us back 20 years in terms of legislation.  It enables our critics and it enables haters. It will shape our lives badly for some years to come.

I will add that we’ve been here before (I’m looking back to how thigs were when I transitioned), and things have got better, but it took a lot of time, and a lot of work, mostly behind the scenes.  We will continue to advocate, but at this point it’s an uphill battle.  Nevertheless, things *will* get better, even if they get worse first.

(Oh, and of course, all views my own etc)