Has the Equality and Human Rights Commission kept its promise to tell businesses they can exclude trans women from women’s services? It’s doing its best.
The Core Guidance for businesses is not yet changed, and the Statutory code of practice still applies, but the note on Gyms, health clubs, and changing rooms claims a difference between Sex and Gender, and could affect us in changing rooms. It was last changed on 13 July 2020, and was still visible- see web archive- on 6 April 2022, after the new, trans-exclusionary, guidance came out.
For anti-trans campaigners, trans women change gender, but not sex. Sex-based rights are for cis women. Therefore No Transwomen in Women’s Spaces! It’s a simple syllogism. But that’s not the difference between sex and gender.
Sex is physical and gender is cultural. If you want to reproduce without medical help, you need a couple with a functioning womb and functioning testicles. If any trans person has a genital operation, or takes hormones, that’s a matter of sex- their fertility is affected. But whether people wear high heels, skirts or makeup is cultural.
If a trans man needs a cervical smear test, that’s sex, and if he has bristles on his chin that’s sex too. But his choice to shave them is a matter of culture- gender, not sex. And who are the victims of violence, and whose violence is condoned, is cultural. Who needs, and who deserves protection from violence, and whose protection matters less? Culture decides.
The Equality Act says we have the protected characteristic of “gender reassignment” once we decide to transition, and calls us “transsexual persons”. It makes no distinction between sex and gender.
So, what about changing rooms? Last year, the EHRC was confused about the difference between sex and gender, and this year they are confused in a different way. Before, they wrote we should be treated as belonging “to the sex in which the transsexual person presents”. But I “present” or express my sex with my feminine hairstyle, clothes, and perhaps makeup. That’s culture. I don’t have to prove my fertility or infertility.
Now they say we should be treated as belonging to “the gender they identify with”. But, I’m wearing high heels, a skirt, and makeup. If gender is cultural rather than physical, that’s my gender. It’s not a matter of “identifying with”, it’s just who I am. Or, I’m in jeans and a T-shirt, but my breasts (sex) change my visible shape, and I use the name Clare. My sex is ambiguous, if you really want to do a chromosome test, but my gender is female.
There’s another change, and it relates to those “visually indistinguishable” trans women which we should all, apparently, aspire to be. Do you pass, girls? No? Work harder!! Deportment and voice are so important, and if your frame is too masculine you should probably not transition at all.
Possibly none of us are visually indistinguishable. Justice Ormrod thought April Ashley looked like a “female impersonator”. Before, the EHRC wrote about these paragons’ “preferred gender” and “acquired gender”. Gender, cultural, even though having breasts- physical, a matter of secondary sexual characteristics- is part of passing.
Now, the EHRC refers to “the gender they identify with” and their “gender identity”. Are you “visually and for all practical purposes indistinguishable from someone of the gender [you] identify with”? That makes no sense. I and a cis woman are both glammed up, make-up, evening gown with a slit up to here, “fuck me” shoes, very different from the second wave feminist in her DMs and crew cut.
If gender is cultural, the feminine woman and the second wave feminist exhibit different gender. And allowing trans people to go out into the world and thrive shows that we can express our true gender, so increases freedom for that second wave feminist, and everyone else.
Claiming gender is cultural does not help the trans-excluders make sense.
I am worried about the EHRC. It has been captured by Tory appointees, several of whom are trans excluders: Akua Reindorf, Lady Falkner. But this page, last updated 22 December 2021, is unobjectionable- it says trans women should use women’s services except “in very restricted circumstances”. The EHRC still has a lot of employees supporting trans rights, despite their board.