Since December, it is harder to be trans in an English court.
The Equal Treatment Bench Book is a 566 page guide for judges on how people appearing before them may be disadvantaged, and how the judge might mitigate their disadvantage. For example, it cites a study where mock jurors gave harsher punishments to fat people accused of crimes than thin people. Trans people are equal under the law, and the law should deal with what has been proved, not punish us for who we are.
There are two pages on naming systems. Mispronunciation is disrespectful, and a judge should take care to avoid it. The book explains different naming conventions. Judges should ask what is the personal name and family name. I am perturbed that there is a perceived need to tell judges not to use the term “Christian name”, but that may just indicate how comprehensive the guide is.
Judges should not reduce court users’ confidence in the court’s authority or impartiality, but act to counter how others’ prejudice may slant the administration of justice. There was a major revision of the Book in February, and an interim update in December, most of which was devoted to considering the rights of “gender critical” people against trans people.
Much of the advice on trans is designed to prevent someone in stealth being outed. This is problematic. Most people read me quickly. I am open about being trans. Yet I still do not want anyone else mentioning it unless it is entirely relevant. The judge can restrict reporting of the case if necessary. The Book quotes a senior High Court judge: “disclosure [of trans history] should not be permitted… where it is unnecessary and irrelevant to the issues”.
The book says terminology is shifting and uncertain, and some trans people may not want to be called trans, believing it irrelevant.
It is dispiriting to read in the February revision a long account of the discrimination we suffer, but I am glad judges might. The update added the Transactual trans lives survey 2021. 99% said they had experienced transphobia on social media, and I can’t see how anyone might use social media without experiencing transphobia. A TUC survey found half the trans respondents had experienced bullying or harassment at work, and 30% had been outed against their will. In a poll of 1000 employers, 43% said they were unsure if they would employ a trans person- that is, they openly stated they would consider breaking the law. The book also gives statistics on anti-trans hate crime, and suicide.
The book says nonbinary people are not protected, though it cites the case Taylor v Land Rover in the appendix on the Equality Act. As an Employment Tribunal case, that is not even a binding precedent for Employment Tribunals.
I would take issue with the President of the Supreme Court’s explanation of the traumas faced by trans people. It’s not “the overwhelming sense that one has been born into the wrong body”, it is a conviction that I am of the other sex, or a desire to be treated as or express myself as the other sex. Lady Hale refers to “the long and complex process of adapting that body”. That is surgical essentialism, and I deny it.
The Forstater case has done a great deal of damage. The Employment Tribunal decided her beliefs did not fulfil the fifth test: beliefs “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”. The Employment Appeal Tribunal disagreed. Much of the problem was that there was little evidence heard in the tribunal of the repellent nature of her beliefs. Other anti-trans campaigners express themselves freely on Twitter and there would be abundant evidence available of how ridiculous and abhorrent their beliefs were.
Because of the case, the update has made additions. It still says trans history is usually irrelevant. It explains that “revealing someone’s trans identity publicly can have serious adverse consequences on their life”. That’s not the issue for me. Calling me trans is like irrelevantly calling a Black person Black. It draws attention to the thing for which I face prejudice. So it is prejudicial. The book explains deadnaming “may be considered” highly disrespectful and may be inhibiting and humiliating to a witness. Formerly, it said deadnaming “is” disrespectful.
For the first time, the update claims a witness may have a “right” to misgender or deadname. The judge should establish this at the start of the hearing. The book gives reasons why a witness should not do this. The trans person may be stealth, may have a GRC, may not want to go to hearing if they would be outed. If trans status is public knowledge, there is less protection. Again, for me, being called a “man” in court would be humiliating, however many believe I am one. It calls the characteristic which has most affected my life, a worthless fantasy.
The example of a witness being allowed to deadname and misgender is problematic. A victim of domestic abuse or sexual violence may give evidence “in accordance with the victim’s experience and perception of the events”. But, when the witness gives evidence, the guilt has not been decided. To call a trans woman a man is prejudging the issue.
Deadnaming is like calling Muhammad Ali “Cassius Clay” to his face, indicating disrespect for his Islam and his right to self-determination. Deadnaming is insulting. A victim should be able to use the Accused’s real name, unless she has a prejudice which affects her reliability as a witness. For example, the pre-existing hatred and revulsion Maria MacLachlan showed for Tara Wolf made her misgender her.
The update explains “Gender-critical” as a belief that sex is immutable and binary, and that including trans women in the definition of women undermines protections for cis women. It often includes a belief that trans people are irrational and violent, but that is not stated. It says the belief is protected even if it offends trans people and allies, unless “they propose to destroy the rights of trans people”.
The Appendix on the Equality Act explains the Forstater case, though recommends reading it. The phrase given for an unacceptable gender-critical belief, is that it “sought to destroy the rights of a trans person”. That is helpful. Many who would call themselves “gender critical” want to roll back trans rights, which are robust in law. The addition explains that beliefs are different from behaviour. Misgendering may still be harassment, whatever the perpetrator believes.
Some additions are otiose. “The effect of the GRA does not impose recognition of the acquired gender in private non-legal contexts and it cannot rewrite history”. Well, no. Lots of people think I am a man, and I don’t want the courts to intervene unless they do something particularly objectionable about it. But the effect of the sentence is to deny reality. I am a trans woman. I deserve respect as a woman.
The update adds an explanation that “Some people feel strongly that they do not wish to be described as ‘cisgender’ or ‘cis’.” Such a belief will usually be part of a set of beliefs including repellent prejudice, which is not worthy of respect in a civilised society, but it has got into the Bench Book. I suggest people use “Non-trans” instead.
Explaining the Equality Act, the February revision said the term “transsexual” was considered unacceptable. The update adds “by many people”. Well, if there is some comprehensive legal definition of sex and gender made, then I am transsexual, and my sex is female. The psychiatrists said so, after all.
The update is a response to the Forstater case. It is just part of the slow chipping away at trans rights and respect for trans people which the right wing culture war is achieving.