Andrew Pakes
MP
By email
29th
May 2025
Dear Mr
Pakes
Supreme
Court judgement on the meaning of the word ‘woman’ and subsequent EHRC interim
guidance and consultation on its Code of Practice – open letter
I. In April, the Supreme Court handed down a ruling ‘clarifying’ the meaning of the word ‘woman’ in the Equalities Act (2010); in paragraph 2 of the ruling, they ruled that in this context, the word means ‘biological woman.’ They were considering that particular issue, and not the everyday rights of transgender people in general.
II. In this letter, I am using the term ‘transgender’ to include non-binary and intersex people.
III. I
am posting this letter online on my blog, which is covering these issues. No discourtesy to you is intended in my doing
so.
Biological
sex is far more complex than XX and XY chromosomes; not only are there people
with other combinations but, for instance, variations in gene expression can
cause intersex variations. Defining a
biological woman is scientifically a very dubious proposition with a number of
approaches, none of which are conclusive. May I refer you to an expert article detailing
the complexity of human sexes: Visualizing Sex as a Spectrum |
Scientific American?
In hearing
the relevant case, the Supreme Court heard evidence from gender critical
organisations/pressure groups, but no input from transgender people was allowed. This contradicts the principle of audi
alteram partem, that both sides should be heard. With one-sided argument, no fair verdict can
be reached. You may be aware that the Good
Law Project are currently challenging the ruling on that basis.
Dr. Victoria
McCloud, the UK’s first openly transgender [former] judge, is also challenging the ruling
at the European Court of Human Rights. She is arguing that the Supreme Court’s
decision and subsequent EHRC guidance both violate transgender individuals’
human rights, leaving us feeling “contained and segregated”. Dr. McCloud claims the court failed to
consider the human rights implications of its ruling and again, under audi
alteram partem, denied us the opportunity to present our perspectives.
Under the
Gender Recognition Act (2004), the issue of a Gender Recognition Certificate
(GRC) recognises a person who holds one as a member of their affirmed/certificated
sex for all purposes. The Supreme Court ruling and the EHRC’s interim guidance and
proposed amendment to their Code of Practice appear to be in direct opposition
to the GRA (2004) and leave transgender people who hold a CGR in a state of
limbo. The great majority of transgender people do not have a GRC to start with; the process of obtaining one involves a great
deal of documentation including medical evidence. The waiting list for a first appointment at a
Gender Identity Clinic in the UK is measured in years rather than months, and
many people transition socially before seeing a Gender Identity
Specialist. They cannot, therefore,
obtain a GRC and nor could they/would they want to detransition. Non-binary people have never been able to
obtain a GRC and have never been recognised legally in the UK, no matter what
social reassignment, hormone therapy or surgery that may have had.
Just over a
week after the ruling was published, the Equality and Human Rights Commission (EHRC)
issued interim guidance based on this ruling and is now consulting on the
clarity of its Code of Practice. The interim guidance went well beyond the subject
of the ruling and advised, inter alia, that transgender people be banned
from the toilet facilities of their affirmed sex, and under some circumstances,
also from the toilets of our birth sex. Even
where we may be allowed (compelled) to use the facilities of our birth sex,
this places transgender people at risk of abuse and assault and puts
gender-nonconforming people at the same risk.
I am thinking in terms, for instance, of women who have had bilateral
mastectomies without reconstruction, tall women, even women with short hair…
The EHRC have
also stated that they will pursue NHS Trusts that do not ban transgender people
from wards aligned with their affirmed gender.
Transgender
people are already suffering the consequences of the ruling and interim guidance
on an everyday basis and fear the potential consequences of changes to the
EHRC’s Code of Practice. We have all
been feeling a mixture of despair, horror, and anger and what is being done to
us, and the speed with which it has happened.
I completed
the consultation response to the EHRC guidance on Tuesday, and I can tell you
that it was a very unpleasant - and in parts degrading - experience. It operates from the premise that ‘trans
women are not women, trans men are not men’, and that ‘non-binary is not a
valid concept or identity’. Two of the key
questions could only be answered at all if the consultee accepts that
transgender women are not women. Other
questions assume that people can always tell whether someone is transgender; many
of the community can testify that that is not the case.
I did not
even look at the section relating to the involvement of transgender people in
sport; as someone who was very sporty in her youth, I simply could not bear to. I will write to you on another occasion about
that. What I will say here is that sport
is as important for the physical and mental health of transgender people as it
is for cisgender people and that trans people are often welcomed and valued
team members.
In summary,
the UK is currently a hostile environment for transgender people. The UK used
to be the best place in Europe for the LGBT community; we now rank at position
22 in Europe. Trans people are afraid of being on a urinary leash, unable to
take part in everyday life (visiting cinemas or art galleries or attending
concerts etc), afraid to seek medical attention where hospitalisation would see
us placed on wards of the (now) wrong sex and afraid of being continually misgendered
with impunity. We are afraid that the
recent Supreme Court ruling will be used to reverse the gender markers on our
passports and driving licences or, where held, to nullify GRCs and amended
birth certificates.
Can you
please reassure me that if this guidance is laid before Parliament, you will
vote against it?
Can you reassure
me that you will vote against any changes to legislation that would reduce the legal
rights of transgender people?
Yours
sincerely
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