Abolishing sex

What would happen if the law no longer certified whether a person was male or female? Now, birth certificates and GRCs say what our sex is, and everyone has one or the other, even nonbinary people, or people with variations of sex characteristics. There are rules on changing classification. What if that was ended? Would it help create a world where children were not socialised into gender, and people could live without gender-based expectations or constraints? The Future of Legal Gender project has published its final report, together with several articles, to answer these questions.

They refer to reform as decertification. It is a proposal made to see what it might mean, rather than to solve a specific problem. They interviewed experts, campaigners and ordinary people. Possible benefits include subverting the basis of discrimination, supporting self-expression, and removing the legal burden of gender change. They asked about possible problems, and clearly anti-trans campaigners have been at them, saying sex-specific services, data gathering, and positive action against discrimination could all have difficulties.

Possibly, law could decertify sex as part of a neoliberal project to stop law and government tackling social inequality. The project wants decertification to be part of a social justice movement to support diverse ways of flourishing. It would need to involve greater public provision, not continuing austerity.

Law could still prevent sex discrimination as it does race discrimination. Most people would object to having a race legally assigned to them. Many service providers recognise nonbinary people, and law is increasingly gender neutral.

People consulted spoke of the need to dismantle male domination, violence, and gender based roles and stereotypes. Trans people could back these goals and still advance their aim for recognition of diversity. The Project says gender is institutionalised, rather than being an identity. It is a set of institutional processes rather than personal qualities. It affects people’s values, patterns of wealth and power, and ways of interacting. They say understanding of sex is interpreted through a gendered environment. I say sex as in reproduction only matters if you want to reproduce, or have a physical health condition. Everything else is cultural. Most people agreed our lives should not be defined by the bodies we are born with.

A leisure centre manager said it was important not to assume someone’s gender. When asked where the changing rooms were, they would say the men’s is there, the women’s is there, and the accessible room is there, and leave it to the customer to make the choice. However, when at the cinema I asked where the loos were, I was sent to the men’s.

Sex inequality in the 19th century involved voting, property ownership, inheritance and employment. These legal inequalities have lessened. We need sociology to recognise and research inequality that remains, relating to poverty, work, violence, exclusion and social stereotyping.

Gender is a complex social phenomenon that produces the categories of women and men to shape people’s lives. Decertification might make that shaping less rigid. It would undermine the assumption that gender divisions in roles or behaviour are natural, lawful or desirable, and support diversity. It might counter early gender socialisation of children.

Would it prevent “single sex” spaces? Many women’s organisations rely on self-identification, not asking for legal documents or assuming that a person’s sex or gender could be known from their appearance. They use risk assessments to manage potential problems, rather than expecting biological status as female to safeguard users. Single sex spaces can imply that the risk to women is from strangers, but most violence has perpetrators the victim knows.

They suggest that sports could be classified as in the Paralympics, which assesses functional capacity. What of positive discrimination, such as all-women shortlists to select political candidates? Applicants could be asked to explain why they fit.

We need data to show the inequalities and needs of different groups of people. People’s experiences differ by social class, disability, beliefs and race as well as gender. Why is the data needed? More precise questions, such as “do you menstruate?” could produce more useful data. Any data collection is intrusive for people- the intrusion is justified if the data is used for their benefit.

Trans people can use a GRC to assert our gender, and that protection would be lost. However, I do not want to provide documentary evidence: I want my word to be accepted. I am a woman.

The project says legal reform can be part of a wider programme of change, one policy tool. It is a creative way of thinking big. The aims would be to end legally registered sex or gender, to help dismantle gender hierarchies, to support people whose gender leads us to be excluded or disadvantages, and to undo broader social injustice and inequality. For discrimination and the public sector equality duty there would be a new ground of gender. Employers and service providers could not impose gender stereotypes. Services could still exclude people based on sex or gender if this was done to address unfairness or safety.

The Telegraph report was merely mocking. “The census could ask ‘do you menstruate?’ instead of ‘are you female?’ to be inclusive of transgender people, a taxpayer funded study has suggested.” Including trans people is not the only reason for the project’s proposals, but they wanted to wind up anti-trans campaigners to hate the study as well as their usual anti-woke, anti-tax readers. A trans woman shared the Telegraph’s hate screed on facebook, so I learned about the report. I am so glad I did.

Reform is unlikely to happen soon, but I am glad people are thinking about the possibility.

Sex, gender, and the EHRC

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.

(Irony alert)

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.

A Complaint to the Equality and Human Rights Commission

Will trans women be excluded from women’s toilets in Britain?

Kishwer Falkner, Chair of the EHRC, has announced that they will issue new guidance claiming that businesses and organisations can exclude trans women from services including toilets and changing rooms. Before such guidance is issued, it is worthwhile complaining to them about Falkner’s comments, referring to the Code of Practice and existing Guidance. Continue reading

The Equality Act code of practice

Trans women are entitled to enter women’s services by self-identification. Under the Equality Act s7, we are treated as trans women- “transsexual persons”- from the moment we decide to transition, and entitled to use services according to the gender we present. That decision is before we see psychiatrists- years before, with the current waiting lists. So we self-identify. We have been entitled to do this since regulations in 2008. Self-ID is no new threat, but the ordinary law.

The EHRC introduced guidance in April 2022 contradicting the Code, but the Code still takes precedence. The code of practice on Services, public functions and associations reads as from a different time. It says, “The Equality Act 2010 sets a new expectation that public services must treat everyone with dignity and respect.” Continue reading

EHRC guidance on trans exclusion in 2021

Getting Equality enacted was not an end in itself. What matters is that businesses and public services should act and plan more thoughtfully and responsibly, that people will be treated fairly as they go about their everyday lives. The EHRC would advise and model this fairness, and enforce the law where necessary. Continue reading

Excluding trans women without mentioning us

“We want to expel every last trans woman from every single women’s service, and guarantee that none will ever enter again. We want to control language, so that no-one can acknowledge that trans men are men, so oppose any and all language that refers to trans male obstetrics or reproductive health.”

If only the “gender-critical feminists” would say what they wanted clearly, there could be a debate. We could ask, who would this change in the law harm, and would it benefit anyone? Can we balance different people’s needs? Are there conflicting rights? Unfortunately, expressing their desires so clearly would show how paltry they are, how little conceivable benefit they would produce, what harm they would do.

So they often couch their demands for exclusion in terms of “belief”. No-one is sacked for “believing sex is real”. They are, rarely, sacked for demanding trans exclusion or being rude to trans people, but more often the trans employee or customer will be driven away. I don’t care about their beliefs, I care about their oppressive actions. Unfortunately they seem to have persuaded themselves that “trans woman” is a meaningless term, not distinguishing us from men. So they talk of mixed sex and single sex spaces, and women losing rights or access, as if women’s loos were full of men.

On Woman’s Hour, Emma Barnett interviewed Kishwer Falkner, the chair of the Equality and Human Rights Commission. The website said they would consider equal pay, a feminist issue, but the whole six minute interview covered “guidance for preserving single-sex spaces”. They did not mention trans women at all. Barnett, interviewing, was concerned that businesses would not be clear when they could discriminate against us, and so discriminate less than they might. Falkner hopes to report in January. It’s clearly about trans women, to a trans woman, simply because it paints a picture of no women’s loos being available in theatres, and businesses with customer toilets not knowing there can be “separate sex-based areas”.

The problem in businesses is that the women’s toilets often have the same floor area as men’s, so that women queue while men’s cubicles go unused, but they do not mention that. Of course there are women’s loos in business premises, it’s just that they accommodate trans women too.

Explaining this to someone who really does not see it is about trans exclusion, or is disingenuously denying that, is difficult. You have to translate. Falkner says the EHRC gets complaints from “experts in the field”- trans excluders- that “organisations’ websites”- Stonewall- misinterpret the exception.

It is a non-issue for most cis people. Trans women use women’s loos. So what. But they paint it as “relating to listeners’ lives”. It is true that there are fewer public toilets, but that is because of Tory public spending cuts, not because of trans issues. There is tugging on heart strings. Falkner says in one theatre “there was no single-sex space for women but for one toilet right in the rafters”. Theatres have bars, so they need toilets. Falkner craves sympathy for “an elderly woman climbing long flights of steps”. What if I were in the Gods, queued for the loo, then found it had a sign on the door saying it was a “single-sex toilet”. But no, this imagined elderly woman climbed from the stalls because the stalls loos admit trans women.

They want to exclude us from toilets. They want to upend our lives. They want not to mention us- we should be excluded, like any other “man”. Falkner says far more businesses could exclude trans women from women’s services than do, now- except she doesn’t, she says they could “use the exemptions that exist,” an abstract phrase in an attempt to sound dispassionate. She won’t anticipate the guidance, because that could cause legal problems, but she mentions the NHS, so we could be put on men’s wards, and retail, so we could be not allowed to try clothes on before buying. All without mentioning trans women once.

“All we need to do is point out what the law says,” says Falkner, and businesses will exclude trans women. I dread the guidance.

Framing it as a “women’s rights issue” and not mentioning trans women makes them terribly self-righteous. The Guardian had an article headed “My hope for a more open discussion of women’s and trans rights is fading”. Tell me about it, I thought. But again the complaint was about the powerful trans lobby oppressing women. Kathleen Stock! The writer complained of Stonewall, Edinburgh Rape Crisis, Keir Starmer, and Carla Denyer supporting trans rights, but did not ask herself “Are we the baddies?” Her views are being silenced, she complains.

She had hoped for a “more open discussion” because of Forstater’s Employment Appeal Tribunal case. All the EAT said was that Forstater’s beliefs were not as bad as fascism, so she should not be sacked merely for holding them. She is delighted that the UK Sports Council tells sporting bodies to exclude trans women. In an article which calls for balance and an end to polarisation, she claims that “the fear of male abusers who could take advantage of self-ID rules is rooted in fact”. Her idea of a “balanced discussion” differs from mine.

“Human bodies have limits,” she says. No trans surgery! Children are under threat! And then, “My own understanding is neither fixed or complete”. She claims an open mind, though her belief in her own righteousness is unassailable. And because she is merely “asserting her beliefs”, she does not notice the people she would hurt.

She does not feel her beliefs are recognised as valid, but that is the wrong question. Should trans women be expelled from our women’s spaces? What good, or harm, would that do? Meanwhile, if anyone advertises a “single sex space” I will take refuge in the Gender Recognition Act s9, which says that as I have a gender recognition certificate my sex is female. If they mean, “No Trans Women Allowed!!” they will have to say that.

Before Falkner, we had an Equality and Human Rights Commission. It was concerned for the rights of those who suffer unjust discrimination, and those whose human rights are breached, and worked to improve their rights. Now, Falkner says her organisation is for everyone in the country. So, she will tell businesses when they might be entitled to discriminate against trans women, and exclude us, because her organisation is for their benefit as well as for the trans women’s. It will not stop there. On the same principle, she would advise those who do not pay women equally how they can challenge the evidence of that.

Anti-trans discrimination and the Explanatory Notes to the Equality Act

Can a group counselling session simply kick out any trans women, because the organisers think the cis women would not want them there?

Having lost on the meaning of the Equality Act, the anti-trans campaigners are now arguing on the basis of the explanatory notes. The lies they tell each other have a real world effect, inflaming resentment against trans women, and at worst violence against us. The explanatory notes do not say what the haters claim, but then, the statute did not say what the haters claimed either, and that did not stop them.

Under schedule 3 paragraph 28, a women’s service can exclude trans women if it is “a proportionate means of achieving a legitimate aim” (PMOALA). This is a phrase used over and over again, with a great deal of case law defining it. There is an explanatory note saying any exclusion has to be “objectively justified”, which puts it in slightly less formal language but adds nothing. The note explains that this replaces a provision in the Sex Discrimination Act, but does not say which, so is of little use. That provision was added by regulations, as in 1975 the Sex Discrimination Act did not mention trans people. A note further on says that a halal butcher does not have to sell kosher meat, but only a Jew can sell kosher meat.

Then the note gives an example:

A group counselling session is provided for female victims of sexual assault. The organisers do not allow transsexual people to attend as they judge that the clients who attend the group session are unlikely to do so if a male-to-female transsexual person was also there. This would be lawful.

The organisers in this case don’t bother asking any service users, they just make a decision themselves. They have a set rule against trans women which they apply if any trans woman asks to join. They think no cis women would attend, rather than thinking possibly one or two cis women would cease attending. It all seems fairly unlikely. Many cis women are trans allies. Acting for the service, I would want better evidence to exclude a trans woman than that.

There has to be a legitimate aim. The organisers’ aim would be to support cis women recovering from sexual assault, but the service users might continue coming and value the trans woman’s contribution. Even if one of the cis women is a transphobe, and would not attend because there was a trans woman there, it is still unlawful discrimination to choose the cis woman over the trans woman. If no cis woman service user would attend, the provider should still try to persuade them to accept the trans woman.

This is a service for survivors of sexual assault. Clearly a toilet or changing room should accommodate trans women.

Explanatory notes are written by civil servants. The Act has been debated in parliament, and amendments considered in committee. The notes have not. Imagine an executive officer having ten minutes to think of an example, and it getting a cursory read-over from a higher executive officer. The aim might have been to show that nothing less personal and intimate, no service users less vulnerable, would justify exclusion. Nevertheless where the statute is ambiguous, or if it can cast light on the “scene” of the statute, the notes might be used as an aid to help interpret the Act.

All the example shows is that where women are talking about something particularly personal, where traumatised women are vulnerable, there might in theory be an argument for excluding a trans woman. But that is only relevant if the statute is ambiguous. There is a great deal of case law on the meaning of PMOALA. A common example is requiring an engineering degree for job applicants. That would be indirect discrimination against women, because more men than women have an engineering degree. PMOALA is a defence if the employer can prove it: it would have to be a legitimate aim, to prove that the applicant had knowledge necessary for the job, and it would have to be a proportionate means, so that the knowledge could not be demonstrated any other way.

So you would have to balance the needs of the vulnerable trans woman with the needs of any cis woman who objected. If the organisers think cis women might not like to be in a group with a trans woman, rather than excluding the trans woman the alternative means is to speak to the cis women and explain to them that the trans woman is not a threat.

So it is not the case that it is “appropriate for spaces to be exclusively reserved to those born female”, as an anti-trans campaigner said in the New Statesman this week. He claimed this was according to the Equality Act, even though his interviewee told him service providers can exclude trans women on a case-by-case basis.

Such misinformation incites resentment against trans women, and in the worst cases violence.

A brief introduction to trans rights and statutory interpretation

In the law of England, Wales, and Scotland, trans women are usually entitled to be in women’s space. There is no right to “single-sex spaces” in the sense the trans-excluders mean, women’s spaces excluding all trans women. To understand why, some explanation of the Equality Act 2010 and how statutes are interpreted is necessary.

I will refer to particular provisions of the Act. You can click the links if you want to follow my argument more deeply. The deeper you go, the more difficult and unclear it gets, as if the law is fractal: complexities can always be added. A hate site, which says what trans-excluders want to believe however easily refuted that is currently claims (link to web archive) “A male-to-female transitioner does not access the single-sex protections of females. They do not become female for the purposes of the EA2010.”

That there is no broad right to “single sex [No Transwomen!] space”, only women’s services which include trans women, is clear from Schedule 3.

Paragraph 26 allows separate services for women and for men, and paragraph 27 allows services for one sex only. Both give fairly obvious reasons, such as, if a woman might reasonably object to a man’s presence. It does not list loos, changing rooms, women’s shelters, but leaves that to the judge. Judges are expected to be reasonable, even though a lawyer might claim a client’s expectation is “reasonable”, because unreasonable clients are an excellent source of income for lawyers.

Then paragraph 28 allows trans people to be excluded, if that is a “proportionate means of achieving a legitimate aim”. There would be no point in having a separate provision if trans women were excluded as “men” from women’s services. The explanatory notes, while not binding, indicate what the drafters of the Act were thinking: they suggest that a “male to female transsexual person” could be excluded from a group counselling session for female victims of sexual assault- under paragraph 28, not 26 or 27.

Exclusion of a trans woman from single sex or separate sex services is indirect discrimination under s19. If trans women are treated differently to cis women, it creates a particular disadvantage, which needs to be justified. See AEA v EHRC, para 8.

That is clear enough. No further argument is necessary. Unfortunately, the trans-excluders have a certain amount of confusion to sow, and ignorant transphobes on facebook may refer to certain sections as a gotcha.

The first problem is that the headings are “separate services for the sexes” and “single-sex services”, and there is a reference to “persons of one sex”. Trans-excluders then go to the interpretation section, which my legal training tells me is usually towards the end of an Act (but the beginning of a statutory instrument- the kind of weirdness that means you need a law degree to understand this stuff.)

s212(1) says “’man’ means a male of any age” and “’woman’ means a female of any age”. That means that children are protected from sex discrimination too, not that trans women are “males” therefore “men”. Because this is a complex statute, there is also an “index of defined expressions” at schedule 28, which says that “Sex” is defined at s11. It does not define sex for all purposes, just “in relation to the protected characteristic of sex”, that is, for the purposes of sex discrimination claims. In those claims, one is either a man or a woman.

In the myths and desires of trans excluders, you cannot change sex and trans women are “male”, or “men”. So this provision makes them very happy. No Transwomen! Cue lots of excited sharing on facebook by non-lawyers who know no better, and articles by lawyers who should.

However then we look at s7, which protects trans people. It refers to “gender reassignment” but then to “reassigning sex”, and “changing… attributes of sex”. It refers to “transsexual persons”.

I have a gender recognition certificate, and so the Gender Recognition Act s 9 says my gender becomes the acquired gender (female) and my sex becomes “that of a woman”.

The law, and the English language, hopelessly confuse the concepts of sex and gender. When a form asks for “gender”, a transphobe is misinterpreting it if s/he says “I have no gender” (as some of them do). Practically, the form means “sex”. And, they might claim “reassigning sex” is not possible, but the Act envisages that it is.

Parliament can do anything. Unfortunately, the standard quote to illustrate this was in Dicey, Introduction to the Study of the Law of the Constitution: “Parliament can do everything but make a woman a man, and a man a woman”. But that is not binding either. Besides, law does not make me a woman. I am a woman by birth. Law simply recognises that.

Acts of Parliament do not include superfluous provisions.

There are also human rights issues. The case of Christine Goodwin says that for “a post-operative transsexual”, her right to privacy means she should be treated as a woman. It is obvious, and easy, to extend this to trans men too. I extend it to people from the moment we decide to transition. This is not quite so clear. I would start with the fact that the Equality Act protects us from discrimination from that moment, and pretty soon seek Counsel’s opinion. This is going far farther than a lay person could argue. The law is complex: complexity also makes money for lawyers.

I have seen a trans-excluder argue that we’re not entitled to privacy if they can tell we’re trans women. That’s why lesbians get misgendered in women’s loos.

There is no right to services excluding all trans women, in law. There may be a right to exclude a particular trans woman from a particular space, if there is good reason for it.

Trans-excluders may then get onto quote-mining. The Forstater case said Corbett v Corbett was still “the common law”. Well, that’s obiter dicta– legal Latin for incidental speech, which is not precedent.

Quote-miners could look at a report and quote, delightedly, that Stonewall are saying what they want the law to be, not what the law is, but in effect Stonewall are right. They explain the law for lay people to understand.

In 2020, there was at least $4bn sloshing about the world, to pay for trans excluder campaigning. The legal cases against trans people will be pressed hard. But trans women are usually entitled to go into women’s spaces. Any other interpretation is merely silly.

I said the law applies to England, Wales and Scotland. I had not been certain that the relevant bits did not apply to Northern Ireland so I looked at the “Extent” section, just before the schedules. That’s what a lawyer would do. More on the Equality Act.

See also: Mumsnet Law, on why the legal arguments of the trans-excluders make no sense, but why they put them anyway.

Maya Forstater, and the beliefs of anti-trans campaigners

Is it odd that a trans woman would welcome the Forstater decision? Now transphobic opinions are protected in law, is that not a threat to trans women? No. The decision was only about whether people should be allowed in law to believe stupid, erroneous or offensive things, and what offensive beliefs should actually be unlawful- as “not worthy of respect in a democratic society”. I want people free to believe what seems right to them. I agree law should restrict acceptable beliefs only in extreme cases.

What beliefs might be unlawful? The judge gives some examples. Continue reading