In the Commission’s view, the Supreme Court made the legal
position on the definition of sex clear, defining it as ‘biological woman’, so
the EHRC is not seeking views on the definition. You may feel very strongly about that… I know I do. The ruling was taken as carte blanche
for attempting, in particular, to stop transgender women accessing the Ladies
and the changing rooms and hospital wards of our affirmed sex, effectively
removing us from public life. We were
told to use our advocacy to campaign for third spaces.
As I’ve noted in previous posts, the Supreme Court did not
consider the views of transgender people at all in reaching their decision, and
it did not consider the intended effect of the Gender Recognition Act of 2004. They did take evidence from gender critical
groups.
The EHRC’s interim guidance was, logically enough, a placeholder
pending statutory guidance. They had planned to issue the guidance quickly after a
fortnight’s consultation – which would be not nearly enough time to consult
properly and which I understand is a much shorter period than their usual consultations.
Following an outcry from stakeholders and the public, (from
us, in other words), the consultation – which was launched today – will now close
on 30th June. I think they’re aware now that this is not going to be
a ‘slam dunk’ for them. It focuses on sections
of the Code of Practice for Services, Public Functions and Associations that
‘need to be updated’ following the Supreme Court’s judgment.
In particular, they are seeking views on whether the updates
they are making will clearly reflect and embody the practical implications of
the judgment and will “enable those who will use the Code to understand, and
comply with, the Equality Act 2010.” That
quotation appears to say that their premises are set in advance and that they are
consulting on how best to exclude transgender people from everyday life. I’d be delighted to be proven wrong!
The EHRC have said that that while the consultation is running,
they will hold Q&A sessions with stakeholder groups. I haven’t got any
details of such meetings yet but I will post them as soon as I can. You
can bet your life that gender-critical groups will be taking part, and we as
transgender, non-binary and intersex people need to make sure that our voices
are heard and not drowned out. The EHRC
will also meet with politicians from devolved administrations from across Britain and hold informative
briefings for MPs. We need to make sure
that our MPs are aware of the potential changes to our lives and of how cruel
and unjust these effects would be.
The consultation itself, which is hosted on the EHRC’s website,
is divided into chapters; it starts with what the EHRC are describing as the
‘Updated legal definition of sex.’ At
the very start, they state that the previous definition, ‘Legal sex is the sex
that was recorded at your birth or the sex you have acquired by obtaining a
Gender Recognition Certificate (GRC)’ is no longer accurate and that
throughout the Code of Practice ‘legal sex is the sex that was recorded at your birth.’ This is in complete opposition to the intent of
Government when they passed the Gender Recognition Act (2004), who intended the
issue of a GRC to change the holders’ sex for all legal purposes. It is this
changed definition that takes us back 20 years in terms of equality and social
justice. The Supreme Court judgement was
not about access to toilets or who can play on a local/grassroots football or netball
team, it was about the makeup of Public Bodies’ Boards in Scotland. The definition of the word ‘woman’ for that
sole purpose was all they were asked to rule on. The Court cannot, so far as I know, interject
that “that wasn’t what we meant” but they did warn that their judgement should
not be taken as a win for any ‘side’. Gender
critical campaign groups didn’t listen that bit.
The Supreme Court is the highest legal authority in the UK,
so further legal recourse concerning the judgement itself has to be via the
European Court of Human Rights in Strasbourg. There are at least two cases being taken
there at the moment – one by the Good Law Project and one
by (a formidable) retired judge, Dr Victoria McCloud. Incidentally, the ECtHR is not a European
Union body, it was founded in 1959; the UK was one of the founding nations.
Mind you, the whole issue of the effect of a GRC is moot for non-binary
people; thus far they have not been recognised as who they actually are under
UK law. It is also moot for transgender people who have not, for one
reason or another, obtained one [yet] and/or do not intend to obtain one in the
future. For transgender people with a
GRC – a very small percentage of transgender people - the whole point is that
it recognises them as members of their affirmed sex for all legal purposes. That
cohort is the only group that **should** be affected by this judgement, and
then only in the narrow question the Court were ruling on. Everything else is proof that ‘it just ain’t
so.’
Not every chapter of their guidance is being consulted on,
but e.g. changes being consulted on in Chapter 2 are to do with GRCs,
asking about sex at birth, defining sex at birth, and sexual orientation. Later
chapters, and consultation questions, are concerned with access to single-sex
facilities, who can pee where, and so on and so forth. There are different questions for
organisations than there are for individuals and legal professionals.
Responses are made via a survey embedded in the EHRC website,
although for people who cannot access the survey, reasonable adjustments can be
made by contacting them. The questions are
all based on the premise that transgender women are men, that transgender men
are women, and that nonbinary people, well…
When the consultation ends, the EHRC will collate and review the responses and will then make any ‘necessary amendments’ to the Code of Practice. The Code will then be submitted to the Minister for Women and Equalities for approval and she in turn will lay it before Parliament. I really hate the possibility of 'bathroom bans' and suchlike being imposed, and having my recognition as a woman removed, but if that does happen: We have been here before. It will take time and effort, blood, sweat and tears, but we will regain our rights. It will take time, but we will do it.
I, for one, will not only be responding to the consultation,
but I will be writing to my MP and updating this blog. I will be talking to anyone who will listen, and
I know that I won’t be the only one. In
the immortal words of Twisted Sister:
“We're not
gonna take it,
No, we
ain't gonna take it,
We're not
gonna take it anymore.”
- - - - -
The results of a survey commissioned by Sex Matters, the gender-critical ‘women’s rights’ campaign group, were published this morning. The survey was carried out by YouGov – which sounds like an official body but isn’t. It’s a plc. My concern is that the results reflect the views of the membership of Sex Matters and related campaign groups rather than of the population as a whole, although YouGov say that the figures have been weighted and are representative of all GB adults (aged 18+). In statistics, there is an issue known as ‘selection bias’ where the population being surveyed is non-random, leading to significant impacts on the validity of findings.
The survey purports to show that a hefty majority of the people surveyed believed that the Supreme Court had made the right decision, while just over half (52%) said that the ruling has made the law around women’s rights and how they apply to transgender people clear. If there is no selection bias, we have a lot of hearts and minds to win/win back.
I’m sure the timing of the publication is just a coincidence.
- - - - -
Finally, and on a much nicer note, I’ve been watching the Westminster Hall debate on e-petition 701159, relating to transgender people self-identifying their legal gender. Among other topics during the debate, which was introduced by Dr Roz Savage, MP for the South Cotswolds constituency, were the Supreme Court judgement and the EHRC. Speakers during the debate made it abundantly clear that the Supreme Court the ruling has not made the law around women’s rights and how they apply to transgender people clear. It has actually made it a lot less clear, but you wouldn’t be reading this if you didn’t know that already.
Hear, hear! Very wise words! I'll be replying also, it horrifies me our country is giving a body public money to write guidance on how to persecute and segregate human beings.
ReplyDeleteI did complete a consultation response in the end, and I wrote to my MP as well - see my yesterday's post.
DeleteBest wishes!