Stonewall, the LGBT charity, supports trans rights, and helps companies by advising on discrimination law. This gets it an income of millions, which it spends on charitable campaigning. Because it supports trans rights, it is under sustained attack from well-funded anti-trans campaigners, and any mistake it makes is exploited.
In response, it should rigorously divide its campaigning from its advice arms. When advising, it should take a more judicial position, rather than advocating for LGBT rights. It should invest in technical expertise to make clear the legal underpinning of its advice. Rather than saying “You should do this”, the advice section might say, “If you do this, these are the risks”. There are risks in all courses of action.
In Winter 2019/20, Essex University cancelled the invitations of two transphobe academics to speak. One was to speak on trans women in prison. The other was to speak on a panel on “The state of antisemitism today”. It is worrying that the report of barrister Akua Reindorf bleeps out the ordinary descriptive word terf, quoting “’Shut the **** up, ****’.” Terf is simply a word for trans excluder or anti-trans campaigner. Treating it as a slur or rude word reduces the language trans people can use to oppose the removal of our rights, and attempts to drive us out of ordinary society.
Reindorf makes Stonewall’s imprecision on the law look far worse than it is. She writes, “In my view the [Supporting trans and non binary staff] policy states the law as Stonewall would prefer it to be, rather than the law as it is. To that extent the policy is misleading.” (Para 243.11)
However, when we consider the actual imprecisions she names, it does not look nearly so bad. For example, Reindorf explains that the policy protects “gender identity” rather than “gender reassignment”.
The Equality Act is well enough drafted, but capable of attack by non-lawyers. Reindorf explains “gender reassignment” clearly enough, but merely quoting the name might make people think we were protected only from my gender reassignment surgery, rather than our decisions to transition. In effect, gender identity is protected, because no-one knows it until we decide to transition, the moment our protection starts. Non binary is protected, as the employment tribunal has decided.
The policy, on Stonewall’s advice, says that denying a trans woman access to women’s loos is discrimination”. Reindorf states this is inaccurate, because “the protected characteristic is gender reassignment”, but that is a distinction without a difference.
Reindorf mentions the provision allowing a trans woman to be excluded from women’s spaces where it is a “proportionate means of achieving a legitimate aim”, but does not suggest that anywhere in the University of Essex there would be such a legitimate aim. If anyone wanted to argue such an aim, possibly the university might have a moral obligation to hear them out, but no legal obligation under the Equality Act or anywhere else to argue such an aim or exclude trans women. It has a positive legal obligation not to unlawfully discriminate against trans women.
Reindorf also mentions health and safety legislation, which in 1992 required employers to provide toilets on a single-sex basis. But insofar as that might prevent trans women from using women’s toilets and changing rooms, it is superseded by the Equality Act.
Any organisation which wishes to exclude trans women from women’s spaces must identify and prove both a legitimate aim, a reason for doing so, and that excluding a trans woman is a proportionate means to that aim. If they cannot, they are discriminating unlawfully and could be liable for damages. Stonewall is entitled to advise that. There are no cases where a legitimate aim has been found, so it is hard to argue what such an aim might be, but the distress of a traumatised woman on seeing a trans woman whom she sees as a man in a women’s changing room may not be, because the trans woman’s feelings and needs are of equal value to the alleged traumatised woman.
There is huge glee in transphobe circles about Stonewall’s advice to exclude the transphobic speakers being called in question. A former Tory MP and regular columnist for The Times wrote there that Stonewall should stop working for trans rights. Well, he would say that, wouldn’t he? The Times publishes a barrage of anti-trans propaganda.
In any case, as Neil Gorsuch so clearly explained, discrimination on the grounds of sexual orientation or gender identity is discrimination on the grounds of sex.
The terfs (no need for ***) will continue assaulting trans rights and claiming trans women are dangerous. Generally, all Stonewall need do is make clear the technical basis of its advice.