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.

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.

Free speech, discrimination and hate speech

Most “Free speech” advocacy is demanding the right to preach hatred, contempt, or fear-mongering about vulnerable groups, but harassing trans people should no more be protected speech than shouting “Fire!” in a crowded theatre.

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.

The Discrimination Tribunal

Jessica Yaniv’s claim of discrimination failed in the tribunal though the judge said that her complaint of gender-identity discrimination in a leg wax was justified (paragraph 102). The Judge Devyn Cousineau said she had made the claims in bad faith and for improper motives.

Jessica Yaniv was still using a profile on Facebook in the name Jonathan Yaniv, with a photo Cousineau thought appeared male. She said gender cannot be told from looks.

What if rights to single gender services should be? Where should we draw the line? Can you divine someone’s intention from how they present? I like to think people can be reasonable. We know what presenting male looks like.

We might distinguish use of services and ways of interacting. Gendered ways of interacting are oppressive. You don’t know if the person is non-binary or nonconforming. We might get to know the person rather than apply gender stereotypes. But we still need some single gender services.

The judge found Yaniv’s evidence disingenuous, self-serving, evasive, argumentative, and self-contradictory.

Ms Yaniv told beauticians that she had “male parts” but in tribunal was evasive. Asked “You’re saying you were asking her to wax a vulva?” she replied, “I’m not gonna say whether I have the whole thing. I’ll say it exists.”

I can understand her not wanting to answer questions about her genitals, but the tribunal decided the service of waxing a vulva was different from that of waxing a scrotum, and so there was no discrimination. So it was relevant.

On seeing Jessica as a man, Cousineau wrote, it was a common theme through these complaints that service providers initially perceived Ms. Yaniv to be a man based on her name and picture. Me. Yaniv strongly objected to this, arguing that there was no basis to assume her gender based on these details and that the very assumption was offensive. I disagree. While we may one day live in a society where a person’s gender is not assumed based on signifiers like name or appearance, we have not yet arrived at that point. For the most part, people still make assumptions about gender based on outward characteristics. While in some cases these assumptions are wrong- as they were in this case- they are mostly right. A service provider’s reliance on these assumptions is even more pronounced when they are communicating with potential clients via social media, with very little information.

They thought she was a man because she had a male name, short hair and no makeup. I think that is OK, but the problem arises if she intends to transition but is still part time presenting male. I would have explained the position. She is offering to pay for a service. Some people have two facebook profiles, one male one female.

I learned a little about the “Brozilian” or “Manzilian” wax, of penis and scrotum. I agree with Jessica that those terms are offensive to a trans woman, but they are ok for most people with scrotums, and possibly once she found a beautician who would treat her she could talk of a “genital wax”, but it is a different service from a Brazilian, a vulva wax.

The expert witness had run a business for many years and taught beauticians:

The penis almost always become erect, at least for some portion of the treatment. In her experience, it is not uncommon for the client to then request or expect sexual services and to become abusive when they are denied.

I found that completely shocking. I cannot imagine demanding a hand job from a spa worker.

Waxing does not kill hair follicles, only make them weaker. If your surgeon will use scrotal skin to line the neovagina, you should have laser treatment or electrolysis, having consulted the surgeon.

The skin of the scrotum is thin, and may tear in inexpert hands. She said a scrotum wax can take up to an hour.

The judge considered Yaniv had made the claims for improper motives, or in bad faith, so should lose. In part this is because of racial animus against the respondents. Yaniv considers certain ethnic and cultural groups don’t accept Canadian values, or trans women. The judge said that just as she should not have to endure being misgendered, so she should not judge the Indian-heritage legal representative on racialised stereotypes. Yaniv asserted immigrants were like Neo-Nazis, in that they were taking over her town.

Each of the five grounds for finding improper motives applies. The judge is clear that it is extremely difficult to demonstrate improper motives, and none of the grounds individually would necessarily be enough.

Jessica Yaniv had joined a women’s gym. She is not simply barred from women’s services.

This case has been used by transphobes to monster us, and oppose Equalities legislation supporting us. Yet the legislation has worked. Yaniv’s racist scheme failed.

Two women ceased to trade as aestheticians because of Yaniv’s legal threats; but many laws can be used to make unjust threats of legal action, not just gender discrimination law.

I am not responsible for Yaniv. What she does in another continent has no relevance to my rights.

A feminist case for trans inclusivity

Lorna Finlayson, Katharine Jenkins and Rosie Worsdale argue for trans women in women’s spaces as a feminist cause. Excluding us can lead to misgendering women including butch lesbians, and is intrusive. They summarise the exclusionary case: the prevalence of violence against women by men, the fact that men typically have certain biological features and have been socialised in a certain way, the fact that at least some of this seems to be true of many or even all trans women, and the fact that anyone can self-define as a woman, no matter how cynical or sinister their motivation then refute it.

Access currently depends on self-ID because of the Equality Act, and so some excluders seek to change that. Men are more violent to women than women are, but not necessarily because of qualities trans women share: rather it is because of social factors and expectations of men. Feminists argue there is no proof that biological factors make men and women different. And socialisation affects us differently, because we see ourselves as women. All sorts of factors shape us, and gender identity is an important factor. There is little clear empirical evidence on this, but trans women suffer from extraordinarily high levels of violence and need protection. We should not be excluded without evidence.

Women-only spaces are a best-fit measure for tackling gendered and sexual violence. It is a complex issue, so what is the pragmatic way to increase protection? To protect trans women too. Putting trans women in men’s spaces risks our safety. Third spaces would out us as trans, and policing women’s space might oppress masculine-appearing women.

Who counts as a woman is a political or ethical question, not a scientific or metaphysical one. It’s not that we are women because we feel we are, but in the radical feminist tradition, gender is a matter of social position, being part of a subordinated class. And our feelings, while not conclusive, carry weight. As a tiny, marginalised minority we are not oppressors.

Excluding us is similar to bigotry in that the arguments are similar to bigoted arguments against immigration. Sometimes, excluders are obsessive about the tiny number of instances of violence by trans women, rather than the much larger number of instances by men, just as the racist right obsess over rape by Muslims. Like the hard Right, the excluders foment fear that an inclusive, compassionate system will be exploited by benefits scroungers, bogus asylum seekers, or fake trans women. Including us reduces limited resources for women, just as the Right argues that immigrants “take our jobs”. Attending to the reality of trans women’s situation and our relation to patriarchy suggests that these arguments are Right wing and transphobic.

Giving energy to opposing gender recognition reform is the least effective strategy possible, if you want to oppose violence against women. In prisons, men might have the incentive to pretend to be trans women, but the policies themselves are robust even if the implementation is not. Feminists would be better to work alongside trans women for a better society. GRA reform makes it easier for trans people to live with dignity and respect.

Full argument here.