Trans people in court

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.

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.

The EHRC excluding trans women from women’s services

The Equality and Human Rights Commission has the power to make trans women’s lives unbearable by permitting women’s services to exclude us. Kishwer Falkner, chair of the EHRC, has indicated they will do this in January.

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.

Quakers and Equality

Quakers have no hierarchy, but we have leadership. Every time someone speaks in ministry in the business meeting, they offer leadership. The rest decide whether to follow or not. With a single leader, decisions might be made more quickly, and not necessarily less well, if that leader listens to others. If anyone can lead, everyone has to be willing and able to follow when appropriate, or we just bicker pointlessly.

This is difficult, and requires practice. On listening to others, Britain YM’s Advices and Queries says, “try to sense where [the words] come from and what has nourished the lives of others. Listen patiently and seek the truth which other people’s opinions may contain for you. Avoid hurtful criticism and provocative language.” We have to be careful in both speaking and listening.

Every human being has inexpressible value. We are made in the image of God. Jesus says the hairs of your head are numbered, all valued by God. Quakers say there is that of God in every one. I am materialist, averse to the idea of a mind or soul in a body, so think of it as the incomprehensibility of the whole human, responding in the moment, so much greater than ego or consciousness which is just a part of it.

On the spiritual path, we learn our value, and the value of every other human being.

Unfortunately, out in the world, we learn the opposite. Capitalism values people for what they produce. White supremacy and the ideology of empire values white people higher than others. Men are valued higher than women. People who have been to university or have higher status jobs are valued higher than others. Certain accents are valued more highly.

My autistic friend is devalued because of his difficulty reading certain social cues, rather than valued for his excellent memory and systematising ability.

In hierarchy, life is a struggle. How can I exalt myself, and do others down? Or, how can I keep up? In the Kingdom of Heaven, which is among us, ready for us to step into it, everything is beautiful. Just as we seek the value in others’ words, we seek the value in everything, and are rewarded by seeing it. What is there that is good, in this moment, situation, encounter?

We grow up in the world, we are steeped in the world, and we are imbued with the world’s habits of hierarchy. It teaches us not to see God in the other. Seeing God needs practice, effort and thought. The unconscious reaction that another is a lower status person is hard to shake off. First we have to become conscious of it. My source of pride, that I am white and educated, is an invisible barrier preventing me from seeing the value of others. It is painful to lose something that is a source of pride, and gives a sense of entitlement and safety in the world, yet felt so normal and natural I thought no more of it than I think about gravity.

Quakers are wrestling with these matters now. Iowa YM (Conservative) asked “How is white supremacy keeping us from hearing God’s voice?” Well, by making Black people uncomfortable amongst us, so that they do not stay, or do not imagine they will be welcome, and by making white people think less of Black people’s ministry. More widely, our privilege stops us listening to the disprivileged, and makes them feel unwelcome. We do not hear the voice of God in the words of those we subtly devalue.

I am aware that the Black person’s experience of a Quaker gathering may differ from my own. I feel assured of my welcome and that if I speak I will be listened to. A Friend told me of Quakers touching her hair, a put-down so cliched that it made a book title. Perhaps the white Friend thought she was being friendly. She meant no harm. She was blind to the disrespect she exuded.

With LGBT folk, in the 1950s Quakers might tell them their love was sinful. Since then we did a great deal of discernment to come to the point where we support equal marriage, but Meetings have split over the matter, and even now some LGBT folk feel pressure to appear normal among Quakers.

Our initial steps to include disabled people can feel othering: it is what we, the good Quakers, who are able-bodied, do for them, the disabled. A ramp gets a wheelchair into the building, but not necessarily its occupant into the position of trust and service fitting their potential. Or some talk of how “we Quakers” are well-off, which can make people who are struggling financially feel excluded. In reality it should be what we can do for us- every person has gifts, strengths, needs and weaknesses, and we must care for each other, allowing each to serve.

When we restrict the range of people in our meetings we restrict the range of perspectives we hear. The Spirit speaks through people, and cannot say what her instruments are incapable of saying. White supremacy restricts God’s voice among us.

Most Quakers come to the Society as adults. We are on a spiritual path. We are not perfect. We do the work necessary as we become aware it needs done.

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.

Woman’s Place UK and Transphobia

Is Woman’s Place UK a feminist organisation, or an anti-trans campaign group? They want the law changed, so that trans rights are reduced, and trans lives made significantly more difficult, especially those of trans women. They misrepresent trans rights and try to make people afraid of trans people, particularly trans women.

The law allows trans women in women’s spaces, but WPUK want us driven out. This is the Equality Act, schedule 3. Paragraphs 26 and 27 allow single sex spaces, for various reasons. Then paragraph 28 allows trans women to be excluded from women’s spaces if that is necessary- “a proportionate means of achieving a legitimate aim”. There would be no need for a different provision if trans women were not generally allowed in women’s spaces.

This has been the case for decades. A judge in 1970 noted that the state treated trans women like other women, apart from in marriage. I got my passport and driving licence indicating I am female in 2002.

Around 25,000 women protected by the Act, that is trans women who have decided to change their gender from male to female, use women’s toilets and changing rooms now, mostly harmlessly. You may think you have seen one. If we cannot use these facilities, our lives would be greatly restricted. I only want to pee, or to try on clothes before buying them. In both places there are cubicles with doors and partitions too high to see over, and often no gap at all.

WPUK demands “single-sex” spaces for women, which they define to mean without trans women. “The law must be strengthened”, they say, so they admit the law is against them. A cis (that is, not trans) woman must be able to use these services without “extraordinary measures”, so any trans women must have been expelled by employees or security before she goes in.

The law must be strengthened to ensure that all women who want or need single sex spaces (including toilets, health provision accommodation, prisons, sports, sexual and domestic violence services) are able to access them without resorting to extraordinary measures. Service providers should be supported in offering such services through legal and financial means and clear guidance must be issued on the exercising of such rights.

You may think you have seen a trans woman in a women’s loo, and this campaigning is resulting in cis women using women’s facilities being harassed, and policed for how “feminine” they are. In her Turner Prize winning video, Charlotte Prodger described being misgendered in loos.

WPUK started a letter-writing campaign harassing Marks and Spencer to exclude all trans women. The Daily Mail reported on it on 23 May 2020. Baroness Emma Nicholson claimed M&S had given in. Fortunately M&S have resisted, and on 8 December gave this statement:

“in line with most other retailers we will generally allow people to use the fitting room which they prefer, with our colleagues exercising discretion and common sense.”

Because of WPUK’s campaigns, harassment of trans women is increasing, and cis women are harassed if they are seen as not “feminine” enough. If the law was changed as WPUK demand, trans women’s lives would be significantly more difficult, and the harassment would increase.

See also: What’s wrong with Woman’s Place?
What is Transphobia?
How WPUK wind up an audience to oppose trans rights.
Woman’s Place manifesto.
Kiri Tunks’ speech in Norwich.

Header photo from Wikimedia Commons.

For more details, here is a debate in the House of Lords, where Baroness Elizabeth Barker responded to WPUK. WPUK had sent a document they called “Sex and the Census” to members of that House, and Baroness Barker eviscerated this “dodgy dossier”. The persecution of trans people now, she says, is exactly like the persecution of lesbians last century, and some of the same people are involved. “Today, trans people are under sustained, unwarranted attack”.

Liz Truss

Liz Truss spoke about Equality, and attacked Trans rights.

“In Britain, you can be whoever you want to be. Dress however you want to dress.” Of course this is not true. At work, some men are expected to wear ties, and some women skirts. But worse, it is an attack on trans people. It’s not just about the clothes. The clothes are the way I express my nature. It’s not just that I could wear a man’s suit and a tie, but choose to wear skirts. It’s that I find presenting male unbearable- weeping, curled in the foetal position unbearable.

And no, trans women can’t wear what we like. Presenting male, we might go under the radar, though it is living a lie in a way that makes the rest of life a drifting dull ache. Expressing ourselves female, we are exposed to hate and prejudice which Liz Truss and her government have encouraged.

It is a clear trans reference. Why else would she tell a falsehood about clothes?

Liz Truss says she will reject identity politics, and “move well beyond the narrow focus of protected characteristics” because those “end up excluding other people”, and are used to define people rather than our “individual character”. People often don’t see my “individual character”. They see only my gender reassignment, and treat me worse because of it. Sometimes they think they are considering my character, but they judge me more harshly because I am trans. (If someone with Cotard’s syndrome can rationalise away evidence that they are alive, anyone can rationalise away evidence that they are prejudiced.) That’s why we need protected as a characteristic, because we suffer direct discrimination. It’s also why we need statistics gathered about our employment rates, because we are less likely to be employed, and that is a sign of discrimination against us.

She names some protected characteristics- “sex, race and gender reassignment”. Why those three? Half the population are female, and 14% are BAME. A different but overlapping 14% are immigrants. 22% are disabled. By contrast only about 50,000 people are protected by the gender reassignment rules, 0.1%. She is using the rule of three, which is a good way of inspiring passion but also a way of conveying bathos. She uses “gender reassignment” not as a climax, but intending it to sound a dull thud, making the protected characteristics even less inspiring- because she finds gender reassignment unpleasant, and imagines other people do so too.

She will consider “socio-economic status and geographic inequality”, and “white working-class children”. This is pernicious. It divides the working class, and encourages the white majority to be racist, seeing themselves as particularly done down. The problems of BAME and immigrant people often come from being working class, because they are disproportionately so. We need class solidarity, not division by race.

The data project she offers is a good thing. It will “look at issues around geography, community and socio-economic background”. If the government actually addressed regional disparities, with infrastructure spending in the North of England, that would help. Her government is arguably exacerbating geographic inequality, spending £44bn on another rail link between London and Birmingham. Public spending is no problem to them, as long as the money is wasted.

She promises more Academies, run by private companies rather than supported by local authorities. This results in worse education. Always she puts the Tory privatisation ideology above the good of the country.

She has some warm words: “It is outrageous in the 21st century that LGBT people still face harassment in public spaces”. She promises no action against that.

The most threateningly transphobic line is not on the government website, which excises “political content”, because it is an attack on the Labour Party. It is also an attack on trans people: “It has led to the Left turning a blind eye to practices that undermine equality, whether it be failing to defend single-sex spaces, hard fought for by generations of women, enabling and tolerating antisemitism, or the appalling grooming of young girls in towns like Rotherham.” Antisemitism, sexual abuse, and trans women in women’s spaces are linked together here, equally appalling.

She describes protected characteristics as “misguided, wrong-headed and ultimately destructive ideas that take agency away from people”. She will do less to advance the equality of protected groups, and especially trans people. Her other attacks on trans rights frighten me. The speech is here.

Since then, I have been debating the speech on a public facebook group- not a trans or “gender-critical” group, but a general interest one, where trans folk and phobes may attempt to convince the public. One person raised Truss’s Foucault with a Baudrillard, which I thought a good bet. I said Foucault was right, and found myself in a debate with six women, which started when one claimed only transphobe MPs were “sticking up for women’s and children’s rights”. I asked them repeatedly whether they found any of the speech objectionable- its racism, its opposition to any method to ameliorate inequality- and they did not say, as if its one use of the term “single-sex” had hypnotised them. For them, it appears there is only one important political issue, eclipsing even Brexit and Covid.

Gender Recognition and the Rights of Transgender People

MPs and others knowing little about trans people, but wanting an in depth briefing, might turn to the House of Commons Briefing paper. It gives undue weight to transphobic falsehoods. It follows a previous paper on gender recognition.

It quotes “Fair Play for Women”, a transphobic, trans-excluding and anti-trans campaigning organisation, as saying “ordinary, everyday women. Any woman.” can be attacked as transphobic for “asking questions or voicing concerns”. This is a direct echo of Enoch Powell‘s “decent, ordinary working man”. It then quotes the Westminster Hall debate. At the end, it quotes the Minister:

Domestic abuse services, including refuges, have robust risk assessment procedures and may exclude anyone who might threaten a safe environment for victims and their children, as well as signposting sources of support for those people whose needs they might not be able to meet.

This is clear and obvious. Even if there were no specific rule for excluding trans women, they could exclude anyone dangerous. So why quote David Davies’ fearmongering?

It gives links to articles about the issues. Some attempt to appear balanced, some are for trans rights, but some are ridiculously phobic. After Rachel Bowyer refutes Rosa Freedman, why link to Freedman’s discredited blog post?

Many readers may not get beyond the summary, which says,

Those against self-identification are concerned, for example, about creating a system which might be abused, and about the potentially negative impact for safe single-sex spaces.

That is refuted in the paper itself, but the summary leaves it there.

I don’t have the law memorised, and could not fault the account of it, but was surprised to see a reference to “Genuine occupational requirements” in Equality law. That’s outdated by more than ten years. The word “genuine” is superfluous, and no longer used.

The summary defines gender dysphoria as “a sense of unease”. That minimises our distress, and the relief transition brings.

The results of the Scottish consultation have been published, but they have not even been summarised in the paper. They would show that people who took the time to respond were strongly pro-trans, despite the desperate campaigning of transphobes to get people to answer. Many of the responders were in England.

The summary says trans people object to the requirement for a diagnosis, as being trans is not an illness. However “the removal of the requirement for a medical diagnosis was one option on which views were sought,” rather than a recommendation. The section on the Equality Act clarifies that there is no need for us to undergo a medical process to be protected: that should have been made clear in the summary. We have our rights, and gender recognition will not affect them: it is only a symbolic legal acknowledgment of our value- or something to campaign against or withhold, to show we are despised.

The account of the background starts with useful quotes. “Being trans is not a mental illness. Despite this, and despite the progress that we have made in recent years, trans people continue to face significant barriers to full participation in society,” said the 2018 consultation paper. Exactly.

I learned useful things about hate crime, which is

Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice, based on a person’s … transgender identity or perceived transgender identity.

This means a stronger punishment. However hate crime based on race or religion is an aggravated offence: that is the offence, not just the penalty, is greater. And stirring up hatred based on race, religion or sexual orientation is a crime, but not hatred based on gender identity, or some of those “everyday women” might be liable to prosecution.

The paper then covers the background, including Christine Goodwin’s case, and the Joint Committee on Human Rights considering the Gender Recognition Bill in 2003: “They advance the aims of certainty and help to ensure that the Government’s flexible approach to the stage at which an acquired gender should be recognized will not degenerate into giving legal recognition to lifestyle changes.” We know that a change of name and gender expression is a huge change, whether or not you have diagnosis or medical treatment, and deserves gender recognition. The committee was concerned about effects on other people. Our rights come last.

The section headed “Gender Dysphoria” goes into detail on NHS treatment of children and adults, but not diagnostic criteria, which reveal we have self-declaration already.

The section on the Equality Act quotes a legal textbook, saying the guidance on the Act makes it appear too easy to exclude trans women from women’s spaces:

It would be inadequate for a provider of services to assume female victims of sexual assault would necessarily object to a trans-woman attending group counselling sessions. A degree of canvassing of opinion would surely be required… There are very real concerns that such guidance is too categorical and fails to emphasize the lengths an employer … would need to go to in order to demonstrate proportionality as an adequate defence to discrimination.

The chapter on young people says the government did not plan to reduce the age below 18, though as the minister said,

Social transition, such as changing the name you are known by, and the pronouns you use, can be done by anyone at any age, and is often subject to a discussion between a child and their parents if it happens before age 18.

Legal gender recognition is the icing on the cake, with only symbolic significance. My bank card establishes I am female, and I have only shown my GRC to friends. I am glad I have it, but I don’t use it.

Chapter 6 at last addresses gender recognition reform. The criticisms of the current regime are listed: it is medicalised, intrusive, burdensome and expensive. There is the spousal veto: there are things I had not considered, such as “Spousal consent may not be possible, for example if the spouse cannot be contacted or lacks mental capacity”.

In Scotland, a married person applies to the Sheriff Court for gender recognition, and gets a GRC, but the court informs the spouse, and “That gives the spouse the grounds, at any time in the future, to seek a divorce.” Though, no-fault divorce will start in England in Autumn 2021. In Scotland, parties have to be separated for two years before one can get a divorce without the other’s consent.

Most people who take an interest in gender recognition reform will pick up things they did not know from this briefing paper. It has a dry style, and attempts to appear dispassionate. However it gives far too much weight and prominence to the anti-trans campaigners, and is not appropriate to inform anyone who does not know about the issues.