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

Trans rights around the World

Amnesty International holds governments to account for human rights breaches. Their report, 2020/21: The State of the World’s Human Rights, has just been published and details trans rights and trans oppression. Amnesty publishes both breaches and advances in human rights. Most of the news is bad, but there is some halting progress and some heroes to celebrate, who have stood up for their rights under extreme persecution.

In Kuwait, Maha al-Mutairi, a trans woman, was arrested and charged with “imitating the other sex in any way”. She accused police officers of raping and beating her during her detention in a male prison.

In Kazakhstan, Nurbibi Nurkadilova published a statement for IDAHOBIT. This provoked homophobic and transphobic comments, including by a mixed martial arts fighter who encouraged people to attack LGBT+ people.

Also in Kazakhstan, Viktoriya Berdkhodzhaeva, who had been imprisoned in a women’s camp, reported that she had been raped, and a security officer was sentenced to 66 months imprisonment for rape and torture.

In Saudi Arabia, Mohamed al-Bokari was imprisoned for charges including “imitating women”. He had appeared in a video defending LGBTI freedoms.

In Dominica the trans charity Transsa was able to get social assistance for some trans women who could not work under COVID restrictions. Amnesty reported this under the heading “Women’s Rights”, but otherwise reported trans issues under the heading LGBTI.

In Benin, assailants beat a trans woman unconscious. She was then arrested, beaten again, insulted and threatened. They stripped her naked and sent her home after five days in detention.

These stories of victimisation show the intense courage of trans people.

In Albania, the Order of Psychiatrists banned its members from practising conversion therapy.

In Finland, a working group proposed legislation to protect people seeking gender recognition. Yeah. No actual legislation, just a proposal, but we move forward slowly.

In Germany, the Federal Parliament banned “conversion therapy” to change SOGI: but only for people under 18, and it was lawful if parents “do not grossly violate their duty of care”.

In Japan, a law to prevent more powerful people harassing less powerful people at work included protection for gay and trans people from being outed.

In Poland, when various cities called themselves “LGBT free”, the head of the European Commission stated they were in fact “humanity-free zones”, that had no place within the EU.

In Romania, Parliament passed a law which prohibited teaching about gender identity, or teaching that sex and gender identity were not always identical. Universities condemned the ban as against academic freedom. The Constitutional Court declared it unconstitutional.

In North Macedonia the Constitutional Court struck down an anti-discrimination law protecting gay and trans people, but parliament reinstated it.

In South Korea, MPs proposed an anti-discrimination law including on the basis of gender identity. The Bill was still pending at the end of the year. In January, the army dismissed a trans woman after she had GRS. She sued.

In the Ukraine, there was a proposal for an anti-discrimination law protecting gay and trans people, but it was not put to a vote. Religious groups objected.

In Britain, Amnesty condemns “growing transphobic rhetoric and fearmongering in the media” and says the gender recognition reform proposals fall short of human rights standards.

In the US, Amnesty condemns the Trump administration for continuing to dismantle protections against discrimination for gay and trans people. Oddly, they don’t mention Aimee Stephens‘ sex discrimination win in the Supreme Court.

In Australia, the Australian Capital Territory and South Australia made advances to end conversion practices.

In Canada, the government proposed an Act to ban conversion therapy seeking to suppress a person’s gender identity or expression.

In Hungary, Parliament enacted a constitutional amendment specifying that Hungary “protects self-identity of the children’s sex by birth”. You would have thought they had better things to do.

Libya is a failed state, but the Al-Radaa militia detained men for their perceived gender identity, and tortured them.

The Observatory of Gender Equality in Puerto Rico records femicides, including those of trans women, unlike the group in the UK.

We should celebrate the bravery of trans people standing up for our rights under such vilification and persecution.

Equality in the US

The Equality Act which passed the House of Representatives is the greatest blow for sex equality possible. It would be a far greater benefit for anti-trans campaigners than for trans people. This is because of its definition of “gender identity”:

The term ‘gender identity’ means the gender-related identity, appearance, mannerisms, or other gender-related characteristics of an individual, regardless of the individual’s designated sex at birth.

It includes every way human beings express ourselves, including how “bossy” (female) or “decisive” (male) we are, how “feminine” (good) or “effeminate” (bad).

Reacting to a person based on gender stereotypes would become potential unlawful discrimination. Specifically, “The term ‘sex’ includes a sex stereotype”. As I understand it, statute does not define “sex” for the purposes of discrimination, which is how Aimee Stephens could persuade the US Supreme Court to protect her based on her gender identity. But the law does not yet specifically protect against discrimination based on sex stereotype.

Trans excluders would be less keen that “in a situation in which sex is a bona fide occupational qualification, individuals [have a right to be] recognized as qualified in accordance with their gender identity”. And “an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity.” Excluders are going mad about this, now. They pretend that trans women are sexual perverts, or that we want to use women’s facilities because of sexual perversion. I want to use loos because I have functioning kidneys, and so need to pee regularly. I have little interest in other people there, indeed am happiest when toilets are deserted. But then I should not be excluded now, based on the Bostock case. All the Act does is put that beyond all doubt.

Republicans in the Senate will block it. They filibuster everything. I read that Americans do not know that they can block legislation with 41 Senate votes: only 15% of voters surveyed got that right. That’s despite the New York Times Opinion section having 81 articles in the past year about the filibuster, with headlines like “The Filibuster Must Go”. Those of us interested in politics can be shocked by how uninterested in politics, and ignorant, most people are. Voters think the Democrats control the Senate and House, so blame the Democrats for failure to legislate. Only people interested in politics would read those NYT articles.

Does the Act matter? Whether or not it is passed, some trans women will be mocked, bullied or excluded from women’s spaces, some might claim unlawful discrimination, various people will get irate, and the New York Times will put forth comment articles. I read two or three a day because I find them entertaining. Real life will go on. But, for those aware of it, the Act passing the Senate would shift the culture towards greater acceptance of difference, including gendered difference, and that would benefit everyone.

Antisemitism, transphobia and the Labour Party

I welcome the report into antisemitism in the Labour party. Its recommendations should apply to transphobia as well. The transphobe MSP Jenny Marra and MP Rosie Duffield have faced no sanction for their transphobia. The transphobic document the “Labour Women’s Declaration” has received no condemnation from the Labour leadership. Transphobia is rife in the Labour Party.

I have taken paragraphs from the report, and substituted “transphobia” for “antisemitism”, “trans people” for “Jewish people”. I do this because I find transphobia in the Labour party quite as offensive as antisemitism.

The Labour Party must acknowledge the impact that years of failing to tackle transphobia has had on trans people. Rebuilding trust and confidence with its members, the Trans community and the wider public will be crucial for the future. A transparent and independent transphobia complaints process, which ensures that all cases of alleged discrimination, harassment or victimisation are investigated promptly, rigorously and without political interference, must sit at the heart of this. (p3)

Politicians on all sides have a responsibility to set standards for our public life and to lead the way in challenging HoBiT in all its forms. What politicians say and do matters. Their words and actions send a message about what is acceptable and what is not. (p4)

The Party has shown an ability to act decisively when it wants to, through the introduction of a bespoke process to deal with sexual harassment complaints… it is hard not to conclude that transphobia within the Labour Party could have been tackled more effectively if the leadership had chosen to do so. (p6)

An effective and transparent complaints process is critical to building trust with members and the general public, yet the Labour Party’s response to transphobia complaints has been inconsistent, poor, and lacking in transparency. (p9)

There is:
no clear, publicly accessible guidance for members on how transphobic conduct is sanctioned
no clear guidance for decision-makers on how to decide on the appropriate sanction
a continuing failure to provide adequate reasons for sanctions, and
poor record-keeping, implementation and monitoring of sanctions. (p10)

There was a failure to deliver adequate training to individuals responsible for handling transphobia complaints. The approach to training for antisemitism is in stark contrast to the training provided for those handling sexual harassment complaints, for whom the Labour Party has implemented a comprehensive training scheme. (p11)

We expect the Labour Party to have practical training in place within six months of publication of this report. We also found that the resourcing of the complaints process was inadequate. (p11)

Why can’t the EHRC recommend this for all discrimination complaints?

The Party should… Engage with Jewish stakeholders to develop and embed clear, accessible and robust principles and practices to tackle transphobia and to instil confidence for the future. (p12)

[and] commission an independent process to handle and determine transphobia complaints. (p13)

[and] Publish a comprehensive policy and procedure, setting out how transphobia complaints will be handled and how decisions on them will be made. This should include published criteria on what conduct will be subject to investigation and suspension. (p13)

[and] make sure the complaint handling process is resourced properly so that it can deal with transphobia complaints effectively and without delay. (p14)

The EHRC says Jewish stakeholders should be consulted on training programmes. I want trans members consulted on transphobia and training for all with positions of responsibility within the Party.

In the introduction to the report, the EHRC says,

Under the Equality Act 2010, the Labour Party must not discriminate against, harass or victimise its members, associates, guests, or those wanting to become members, on the basis of a number of protected characteristics… Leaders and representatives of political parties should uphold and defend their right to speak freely, but they also have a responsibility to conduct debate responsibly, and to lead others in doing so. They should create an environment where discrimination, harassment and victimisation is not tolerated, so that all party members feel valued and respected.

There is no excuse for the Labour Party not responding to transphobia as it has committed to responding to antisemitism.

Aimee Stephens

Aimee Stephens, who died in May, is a trans heroine. Her case in the Supreme Court of the US shows that discrimination on the ground of sexual orientation or gender identity is discrimination on the ground of sex, which is unlawful under Title VII of the Civil Rights Act of 1964. Why that is, might be a surprising argument for a British lawyer, beautiful in its simplicity. The Court’s judgment, of a majority of six (Alito, Thomas, Kavanaugh dissenting) was written by Neil Gorsuch.

Aimee Stephens was fired by RG & GR Harris Funeral Homes after she announced she intended to transition, and come to work in a conservative skirt suit or dress. Her employer claimed it would violate “God’s commands” to allow her to state she is female or behave in feminine ways. The case was heard together with those of two gay men. Donald Zarda was fired after he came out. Gerald Bostock was fired after his employer found out he was gay.

Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” Looking at the ordinary meaning of these words resolves the cases. “Sex” means “biological distinctions between male and female”. “Because of” means “By reason of” or “on account of”. This is “but-for” causality: but for their sex, these plaintiffs would not have been sacked. (It’s causa sine qua non, if you really want the Latin.)Those employers finding a female employee was attracted to men would not have sacked her for that. Harris would not have sacked a cis woman for wearing a skirt. “Discriminate” means treat differently, intentionally.

That means it is unlawful to sack or penalize someone, when part of the reason is their sex. Discrimination on the ground of sexual orientation or gender identity is necessarily discrimination because of the individual’s sex. A male worker was entitled to claim discrimination for sexual harassment by other men: it was different in form from the sexual harassment of women. An employer that would not hire women with young children, even though it favoured hiring women over men, was discriminating on the ground of sex, against those mothers as individuals.

It does not matter how people would label the discrimination. Aimee Stephens might say she was sacked because she is trans. It is still because she is seen as male. Sex need not be the sole or main cause of the employer’s action. And even if the employer treats men and women as groups the same, discrimination against an individual is unlawful.

The employers contended that they sacked their employees for sexual orientation or gender identity, and attempted to argue that was different from sex. But the rules are based on the sex of the employees, even though sexual orientation and gender identity are distinct concepts from sex. It does not matter that the Senate and House of Representatives have passed bills at different times to add sexual orientation or gender identity to Title VII, but these have never become law. If Congress had intended for there to be an exception- Discrimination on the ground of sex is unlawful, except when it is on the ground of sexual orientation- it should have said so.

The employers argued that no-one, in 1964, would have expected the law to apply to gay or trans people, but that does not matter because the words of the statute are unambiguous. The Court has to enforce the law’s plain terms.

That is, a conservative Supreme Court has extended protection to gay and trans people though others reading the law, including the sponsors of those failed bills in congress, did not think we were protected. The judgment is available as a pdf.

It is much more elegant than British law. Here, sex, sexual orientation, marriage or civil partnership, and gender reassignment are all separate headings for protection.

The law and trans people

Anti-discrimination law protects far more trans people than it says it does.

The Equality Act protects you from the moment you decide to transition. However, you have a right to privacy, so no-one should ask you if you are transitioning, or have transitioned. There is a statutory code on discrimination in services, which says providers should treat transsexual people according to the gender role in which they present. If you are a man cross-dressing for fun, and you go out, you should not be forbidden to use a women’s loo or changing room. If they ask you if you are transsexual or have decided to transition, you can refuse to answer such an impertinent question. There is no need to lie.

The code has a ridiculous example. Before going to a party in a local hotel, a guest lets it be known that he intends to come dressed as a woman for a laugh. However, the management says he cannot attend the event dressed as a woman as it would create a bad image for the business if there was bad behaviour on the premises. The management also tells a transsexual woman that she can’t come dressed as a woman as they don’t feel comfortable with the idea, notwithstanding the fact that they know she has been living as a woman for several years. The guest would not have a claim for discrimination because he does not intend to undergo gender reassignment and because the reason he is told not to come dressed as a woman relates to the management’s concern that overly boisterous behaviour would give a bad impression of the business, not because they think he is a transsexual person. The transsexual woman would have a claim as the reason for the less favourable treatment was because of her protected characteristic of gender reassignment.

The answer is don’t “let it be known”. Just turn up. Some AMAB people cross dress for pleasure, and some because we intend to transition. The hotel staff looking at you can’t tell which is which. I wondered if they might try to guess, if someone passed particularly badly, but that does not mean that they are not transitioning. We all have to start somewhere.

I don’t like that they say cross-dressing is “bad behaviour”. “Overly boisterous”- some cross-dressers can be meek souls, behaving quietly and respectably. The code is saying the hotel could forbid behaviour not because of how it affects other guests, but because of the motivation. They can’t forbid transitioners, but they can forbid cross-dressers. Not all businesses would: I liked an Italian restaurant in Oldham, and when I asked about going cross-dressed, they were fine about it. I did not want to draw attention to myself.

You might even make a legal claim if you are a cross dresser, refused access to women’s loos. You have to prove that the hotel believed you were transitioning. Unless they know you personally, they have no reason to believe you are not. If they have no firm belief that you are a cross dresser, they are discriminating against you though they may believe you are protected. It is discrimination if you are perceived to be trans: A woman with a medical condition that makes her appear ‘masculine’ is wrongly perceived to be undergoing gender reassignment and refused entry to a women-only sauna session at her local leisure centre. This is likely to be less favourable treatment because of gender reassignment.

If you clearly parody women’s clothes, you might be excluded, but trans people’s dress sense can be pretty bad, so you might get away with it. You may still face street harassment though. If it’s enough to put you in fear, it may be a crime. My street harassment reduced by a great deal when I completed electrolysis.

The code has this example of discrimination: A group of women complain to a health spa manager that they feel uncomfortable around another member of the spa who is a transsexual woman. In response, the manager apologises to the transsexual woman but tells her that she will not be able to use the spa again. This is less favourable treatment of her, as it puts her at a clear disadvantage compared to the spa’s other clients and will not be lawful if the spa’s conduct is because of gender reassignment. Transitioning or transitioned women have the right to be treated like other women.

Trans women have been protected by discrimination law on access to services since the Sex Discrimination (Amendment of Legislation) Regulations 2008. We have self-ID already: all you have to do is dress up. The campaign against trans women in women’s spaces pretends that there is some great change suggested, but that is a lie.