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.

Doctors can give medical treatment to trans children

Trans children can be treated for their gender dysphoria, says the Court of Appeal. This is a huge relief to parents and children. It is for the NHS to decide whether the treatment should be available at all. It is for doctors, parents and children together to decide whether puberty blockers should be taken in individual cases. The courts cannot set out how doctors should approach future cases.

The case of Gillick established children under 16 could make their own decisions about treatment if the doctor thought they were mature enough to do so. At the time, contraceptive treatment for children was controversial. The Court of Appeal restores the ability of mature, competent children under 16 to make decisions for themselves, supported by their parent and doctors. This affects all children and all treatment, not just puberty blockers.

There are eleven million children in Britain. In 2019, 2519 were referred to the Gender Identity Development Service, GIDS. They faced a delay of up to two years before assessment. Of the children assessed in 2019, 161 were referred for puberty blockers.

The High Court had accepted the evidence produced by the anti-trans campaigners, even though it was controversial. They decided that when adolescents started puberty suppression, only 1.9% did not go on to cross sex hormones. Even if that were true, it could have been because the children were truly trans and properly consented. It did not apply to patients of the GIDS. 1648 patients were discharged in 2019/20, and of a random sample of 312 of them, 16% (49 children) had been referred to endocrinologists for puberty blockers, but only 55%, 27 children, were approved for cross-sex hormones. Two of the 49 did not commence treatment, and five were discharged without being referred to adult gender services (so would not get CSH on the NHS).

So a tiny proportion of those who will eventually transition happily were referred to GIDS, and of those only a few were treated. The system shows great reluctance to treat trans children, and the courts should not impose more. The doctors prescribe puberty blockers to alleviate the current distress of gender dysphoria. The children and parents seek it in order to avoid the characteristics of the assigned sex, and gain the characteristics of their true sex: allowing this is the way the distress can be relieved.

Doctors and parents together assess whether a child can understand to consent to treatment. It’s hard to see what a judge or other lawyers could add. The legal question is fairly simple: does the child understand the treatment, and does the doctor consider it is in the child’s best interests. The judge does not know the child better than the doctor does. So a court application might forestall a future legal challenge to the decision, but cannot give additional certainty that the decision is right, only delay, worry and expense.

The High Court gave guidance on when treatment might be permissible. The Court of Appeal said the High Court could not do that. At para 56 they quoted Lord Scarman in the Gillick case, saying a legal rule giving certainty about when a child could consent would be inflexible and could obstruct justice. If such certainty is necessary it should come from legislation after a full consideration of all the relevant factors. Courts only hear the evidence brought by parties to a particular case.

They quoted the House of Lords in Burke’s case: “The court should not be used as a general advice centre”. It should not make wide-ranging decisions about difficult ethical questions, only about the particular question between the parties.

The NHS had given detailed rules on the management of the GIDS, including when puberty blockers might be prescribed. The High Court had found these rules to be lawful. Therefore, there are restrictions on the evidence the court in a judicial review could hear. The anti-trans campaigners had lodged their expert evidence late. They never sought permission to lodge it. The Court of Appeal said in a judicial review the court would usually prefer the evidence of the defendant.

The High Court had gone beyond what a court should do. Keira Bell has made unguarded comments about appealing, and anti-trans campaigners will continue to attack the GIDS by any means available, but it appears this particular attack has failed for now.

This is a feminist victory. The Gillick case, which enshrined children’s rights to necessary contraception and abortion, is safe for now. Feminism wins when in alliance with LGBT+. Everyone loses when “feminists” or “LGB” split from LGBT+ rights.

The decision.

James Esses

James Esses is no longer studying psychotherapy, and wants to sue his course provider, the Metanoia Institute. He has raised £50,000 in five days.

Esses has been fearmongering about trans children. His basic lie is that children are “transed”, that children who will not benefit from social transition or puberty blockers, or who will suffer long term damage because of such treatment, are being pushed into treatment by the uncritical adherents of what he calls “gender theory”. He claims such people “solely affirm gender dysphoric clients into their identified gender”, and want all therapists to do the same “on pain of criminal punishment”. That is a shocking allegation. Is there any evidence for it?

Compared to the monstrous “gender theory”, his claimed position is entirely reasonable. He says in his crowdfunder that he only wants “to treat clients professionally and according to their needs”. He petitioned the government to “safeguard evidence-based therapy” for gender dysphoric children, as if there were any threat to that. He claims that “Studies show that many dysphoric children will come to identify as their biological sex”. Well, it depends what you mean by dysphoric. Studies claiming high levels of “desistance” do not show that children who identify as trans and want to transition are likely to change their minds.

The government response made some worrying claims: they will “protect under-18s from irreversible decisions”. If they think that includes puberty blockers, we may have government interference in medical treatment doctors, parents and the child all believe is needed. That is the position American legislators have taken.

Turning to the Daily Mail, what did Esses do? He volunteered for Childline, but was sacked because he “use[d] the service to advance [his] personal campaigns” and gave ” the impression that Childline endorses [his] personal campaigns”.

Aged 29 he cannot have practised as a barrister for long before becoming a civil servant and then choosing psychotherapy as his third career, but may still know English law better than I do. He will know his student contract. The Mail claims he was dismissed from his course by email for bringing negative attention to Metanoia by starting the petition. This might breach his entitlement to a fair process.

His crowdfunder claims he was discriminated against because of his gender critical beliefs, but starting the petition was an action rather than a belief. He also founded the “thoughtful therapists” twitter feed, which may give the impression that he would, as a therapist, go beyond exploratory therapy to find the best way forward for a distressed child, and instead pressure them to avoid social transition. That would be conversion therapy: to rigorously refuse to countenance social transition or hormones as an appropriate course for a child, and pressure them into another course.

In the crowdfunder he says “I hold gender critical beliefs: that sex is biological and immutable”. Well, possibly. However, trans people exist and benefit from social transition, hormones and surgery. Nobody wants to “trans” someone whom it would not benefit. What would they possibly gain? Insofar as Esses denies these obvious truths, he is incapable of functioning as a psychotherapist.

The petition was based on a falsehood, that the government might “criminalise essential, explorative therapy”. There is no chance of that. Any therapist seeing a client who presents as trans will keep an open mind. Only a psychiatrist can refer a child to an endocrinologist for hormone treatment.

Consider the Royal College of Psychiatrists position statement on supporting transgender and gender-diverse people. It defines conversion therapy as “treatments for transgender people that aim to suppress or divert their gender identity – i.e. to make them cisgender – that is exclusively identified with the sex assigned to them at birth”. Clearly, exploratory therapy is not forbidden. “The College supports psychiatrists in fully exploring their patient’s gender identity (involving their families where appropriate) in a non-judgemental, supportive and ethical manner.”

Consider the New Zealand government’s draft Bill. It defines conversion practice as “performed with the intention of changing or suppressing the individual’s sexual orientation, gender identity, or gender expression.” Exploration would not be forbidden. Ideological denial that transition can ever be right for a patient would.

What of the UK Council for Psychotherapy? It says “Conversion therapy is an umbrella term for a therapeutic approach, model or individual viewpoint that demonstrates an assumption that any sexual orientation or gender identity is inherently preferable to any other, and which attempts to bring about a change of sexual orientation or gender identity, or seeks to suppress an individual’s expression of sexual orientation or gender identity on that basis.” Esses’ statements, on twitter and elsewhere, may be sufficient to show he holds such a viewpoint and therefore would be vulnerable to the discipline tribunal, as the UKCP’s ethics stand now. But there is clearly no threat to exploratory therapy.

Esses has attempted to spread fear that therapists are wrongfully transing children, and that law or ethics on conversion therapy might outlaw exploration of gender identity and dysphoria. This is clearly untrue. Childline says he was campaigning against transition rather than properly counselling callers.

I hope Esses loses his court action. However his raising £50,000 in five days shows the huge amount of money available for court action against trans rights, or institutions or law supporting trans people.

Mumsnet Law

Anti-trans campaigners have a peculiar interpretation of the Equality Act. Trans people are entitled to protection from discrimination, but for the anti-trans campaigners that only means no-one is entitled to treat you badly on the grounds that you are a “man”, as they would put it, presenting female or a “woman” presenting male. On transition, trans women, or “trans identified males”, are not entitled to use women’s services because these are described in the Equality Act as “single-sex” or “separate sex” services (schedule 3, paragraphs 26 and 27).

After two years and a diagnosis, you might get your gender recognition certificate, where your gender is declared on the certificate and, unfortunately for Mumsnet lawyers, your sex is also changed by s9 of the Gender Recognition Act. So, for them, the purpose of the Equality Act, schedule 3, paragraph 28 is to allow you to be still excluded from all women’s services. The legitimate aim is to alleviate the distress of cis women who see you there. So, after exclusion, you would have to produce your GRC to show you could not be excluded under paragraphs 26 or 27, and you would still lose a discrimination claim because of paragraph 28.

For the die-hards, the dismissal at a preliminary hearing of Ann Sinnott’s case does not change this. The EHRC guidelines said that trans women could be excluded from women’s services. When trans women go into women’s services, that goes back to tolerance, or that nobody bothers to exclude us, as it was before 2010. A cis woman service user might try a human rights case on her right to privacy if the service provider did not exclude us.

Of course I look at this from the perspective of a trans woman, and am horrified. Could a judge ever accept it? They could say that the plain meaning of the words “single-sex” and “separate sex” requires it. I don’t think that was the intention of the Act. It gives the heading “gender reassignment” then defines a “transsexual person”, who is “a person who has the protected characteristic of gender reassignment”- from the moment we decide to transition. So, the Equality Act confuses gender and sex and does not make the distinction the Mumsnet lawyers make.

Fortunately Sinnott’s case shows that excluding a trans woman from women’s services is indirect discrimination.

Now I consider the concession made by Karon Monaghan, QC for the trans-excluders in the case of FDJ, the recent case on trans women in women’s prisons. The judge said, “As Ms Monaghan QC on behalf of the Claimant pointed out, the relevant legislation (to which I will refer later in this judgment) [including the Equality Act] tends to use the words ‘sex’ and ‘gender’ interchangeably”. So, under the Equality Act, my sex and gender are both female, from the date that Act was enacted or the date I decided to transition, whichever is the earlier. Otherwise, the trans women in women’s prisons described in that case would simply be transferred to men’s prisons, as they do not have GRCs.

There appears to be unlimited money available for cases against trans rights. I feel it is like Donald Trump’s cases against the 2020 election- useless legal action designed to provide cover for his social media campaign. The radicalisation, the fundraising and the legal actions have the aim of increasing hate, even if the cases mostly fail or are irrelevant. If people believe, however disingenuously, that they have the right to complain about trans women using women’s services, they will.

Anti-trans radicalisation

Anti-trans fantasies that the law is what they might hope it to be are so prevalent that there is a name for them, “Mumsnet Law”.

Here is a sample. OTSOTA tweets, “Sex is a legally protected characteristic. Transgender ie someone who has legally been certified after assessment as a person of biological SEX LIVING AS a member of the opposite SEX for 2yrs intending such to death, is a CONDITIONAL protected characteristic Self-ID = no legality”. When someone replied with a quote from the Equality and Human Rights Commission, he said this is “fraudulent”, and saying it “ignites a witch hunt against women”. Weirdly, he claims a degree in Law. What he says is not true.

So I went to Mumsnet, where they were responding to the prisons judgment. “Legally, we need ‘sex’ and ‘gender’ to be crystal clear. We need absolutely watertight definitions that are clearly understood by everyone. They need to be applied to every relevant policy and piece of legislation.” ArabellaScott wants “single-sex spaces” to exclude every trans woman. Fortunately, she does not think that is the law now. Because they have been confronted with the actual law, on that thread they fantasise about other things- “The 97 other assualts (sic) might all have been trans women with GRC”. They have no sympathy for trans women- “These 7 assaults were avoidable”, one says, but none mention the eleven assaults on trans women in men’s prisons in one year. Some of the 97 sexual assaults recorded in women’s prisons might have been against trans women.

They are radicalising, encouraging each other to hate more.

On another thread they discuss protected characteristics in a school. TheInebriati fantasises about the law, saying schools must provide “single sex”- no trans girls!- toilets. But CharlieParley is mostly correct, saying that once a trans person decides to socially transition they are protected. They are wrong to correct “The Act protects transgender people.” They write, “Well, to be precise, the Act protects transsexual people”. The characteristic is gender reassignment, and the Act conflates sex and gender.

GrownUpBeans fantasises- “Gender identity is protected as a belief.” No, anti-trans beliefs may be protected in some cases, but gender identity (reassignment) is a protected characteristic in its own right.

StumbledIn links to the protected characteristic of sex in the Equality Act, without any commentary. Elsewhere, this is a basis for fantasy law.

Oldwomanwhoruns claims “gender reassignment” is not relevant, because children cannot undergo gender reassignment. This is false. Children can decide to reassign.

2fallsagain is correct- “there are still situations where a male person can be legitimately excluded from a female space”- but could mislead. Trans women are not excluded from women’s services on the grounds that we are “male”, because we are not. “Gender reassignment does not trump sex”, they say. Well. Trans women are entitled to use women’s services, but can be excluded if there is a particular reason for it. CharlieParley corrects them.

Saltyslug has confused the Equality Act and the Gender Recognition Act. “Gender reassignment is a formal process involving specialist consultants, gender dysphoria and usually takes two years to get the certificate”. They are wrong. We are protected under the Equality Act from the moment we decide to transition. We do not need a gender recognition certificate. After BadGherkin corrects them, they refer to the gender recognition application process.

A brief look finds Mumsnutters misstating the law. The radicalisation, which was in full flow on the prisons thread, was mitigated on the legal  thread, as two posters corrected the worst errors, but the fantasists did not listen. That tweet, so self-righteous and so wrong, indicates how deluded some people are about the law. Such delusions may lead to angry outbursts at trans people in public.

Trans women in English prisons

Dark money is funding court actions against government bodies, human rights organisations and women’s rights organisations, seeking to make trans lives harder. These cases are often terribly weak, but each win only reverts back to the status quo, and may contain a tiny thing the trans-excluders can use, in their desperate attempts to harm trans people.

There was a case seeking to exclude trans women prisoners from women’s prisons, which failed. The judge took time to compliment the QC for the trans-excluders, who presented the case with her “customary skill”. He did that because he needed to comment that “the weakness of the arguments is the failure to give sufficient weight to the way in which the policies permit, and indeed require, the necessary balancing of competing rights.” (Judgment, paragraph 91.)

The trans-excluders lose, because they cannot see the need to consider the needs or rights of vulnerable trans people. They may continue fomenting anger and fear against trans people, and raising large sums of cash, but apparently are not good at assessing whether a case is worth pleading. It appears money is no object for them. One witness they led gave irrelevant and inadmissible evidence (72)- I imagine them railing against the human rights of trans people, ineffectually.

What do we learn from the case? The court accepts a distinction between the words “sex” and “gender”, and quoted another case claiming sex relates to “physical characteristics, including chromosomal, gonadal and genital features” while gender “is used to refer to the individual’s self-perception.” In reality, I am just as much a “real woman” as a cis woman is, and gender refers to a wide range of cultural norms and expressions including the norm that trans women are women. However the claimant conceded that the Equality Act uses the words interchangeably. Perhaps all the trans women on GIC waiting lists should start calling themselves “transsexual women”.

47% of women prisoners are serving indeterminate sentences or sentences of four years or more. That is, they are dangerous women serving sentences for serious crime. They included the claimant in this case, who has recently been released back into the community on licence. The claimant argued that seeing a trans woman in a woman’s prison amounted to “torture” under the Human Rights Act, despite the seriousness of the crimes committed by cis women, and the fear they might raise in others. The prison system is full of violent offenders.

The average length of a custodial sentence for women is 11.3 months. That is, most women sent to prison are sent there for less serious offences. However most women actually in prison are there for serious offences.

With that context, the offences of trans women actually in prison seem to fit the profile of cis women. There are no central statistics of how many women prisoners have a gender recognition certificate, but it is thought to be fewer than ten (para 13).

In March 2019, there were 163 transgender prisoners, of whom 81 had been convicted of one or more sexual offences. There were no details of whether those prisoners were currently imprisoned for sexual offences. 129 were in men’s prisons, of whom 74 had been convicted of a sexual offence, so there were seven trans women in women’s prisons then who had been convicted of a sexual offence at some time in the past.

Between 2016 and 2019 there were 97 sexual assaults recorded in women’s prisons. Seven of these were committed by trans women without a GRC, four by one prisoner. In 2019, eleven trans women were recorded as sexually assaulted in men’s prisons. No trans woman was recorded as having committed a sexual assault in a women’s prison (14). In March 2019, there were 34 trans women without a GRC in women’s prisons.

Mr Justice Swift gave the opinion that the prison service should keep a record of how many trans women with a GRC are in women’s prisons (103). The problem is that this may result in their being outed, which could be a criminal offence.

Both judges said that there could be a “significant psychological impact” on a cis woman seeing a trans woman in a women’s prison (76-77; 100). This should not be overstated. They have made a decision on the relevant facts for the purpose of this case, so it should be read as even if there is a significant psychological impact on cis prisoners, the rules are still fair. However it is still horrible to read that I am scaring cis women as I go about my daily life, when they see me in women’s services. If that were the case, trans women would have been ejected from women’s services before now: I have been in women’s spaces for twenty years.

Trans women in prison are not allowed to shower with cis women (38).

The prison service has a rule (9) that “Women prisoners shall normally be kept separate from male prisoners.” However this is not the same as invoking the Equality Act single-sex exemptions, as the claimant demanded (44). No person in charge of a service, including the prisons minister, had any obligation to apply those exemptions (88). This will make it considerably harder for the trans excluders to win cases against any women’s service that admits trans women, though I doubt it will stop them trying. I worried that this court action would blur the distinction between the Equality Act rules allowing men to be excluded, and the rule allowing trans women to be excluded. Fortunately it did not, because it was so misconceived.

The trans excluders tried to argue that statistically, a trans woman was five times more likely than a cis prisoner to sexually assault a cis prisoner. The judge called this “a misuse of the statistics” (75). They tried to argue that there was indirect discrimination, as cis women were more affected by trans women than cis men were by trans men, and failed: perhaps they are, but the prisons service has to look after the needs of trans women.

Effectively, the trans excluders lost because putting trans women in women’s prisons follows the legitimate aim of ensuring the safety and welfare of all prisoners, including the trans women (87). The prisons service demonstrated that the means adopted are reasonable, at least from the point of view of any challenge by non-trans prisoners.

Trans women will continue to be in men’s prisons, and continue to live in fear there, and be assaulted, often sexually. But the excluders have failed in their attempt to make more trans women live in such fear and threat.

Dr Sarah Lamble of the Bent Bars Collective intervened in the interests of trans prisoners. She is a reader in Criminology and Queer Theory. She argued that the lack of reliable data prevented assessing the risk of trans prisoners as a group. Because there are more trans prisoners than are recorded, the proportion who had committed sexual offences is likely to be lower than the claimant had asserted. There is no reliable basis for claims by trans excluders that trans women have “male patterns of criminality”.

When a trans woman without a GRC asks to be placed in a women’s prison, the prison service will continue to be assessed by a Local Transgender Case Board and/or a Transgender Complex Case Board (24). It seems that such boards err on the side of placing trans women in men’s prisons, placing those trans women at risk. This court case could never lessen the risk to vulnerable trans women, but at least it has not made it worse.

The Guardian misled with these figures. It did not mention the assaults on trans women in men’s prisons. It did not show that the number of trans women convicted of a sexual offence in women’s prisons was only seven.

“Single-sex spaces” and transphobia

Transphobes express their transphobia in apocalyptic terms. “Gender ideology poses a threat to all of us” said one male transphobe eejit, and this is quoted as an inducement to get a transphobe book. “Reality matters for feminism” says a transphobe, obsessed with her transphobia, in the title of her book railing against trans people. “A regressive men’s rights movement is posing a massive threat to the human rights of women and children” says the blurb of another book entirely obsessed with trans people, by a Quaker transphobe. “We were constantly triggered,” said Amy Dyess.

They also express it in absolutist terms. The remote possibility that a trans woman might enter a space such as a toilet or changing room, because the owners and organisers of that space have not adopted rigorous policies to ensure that never happens, is enough to make trans-exclusionists call it “mixed sex”.

Consider what’s happening here. A lot of women would be uncomfortable with “mixed sex” toilets. The haters say women need “single-sex spaces” and most women would agree. The difference is portrayed as between going to pee where there are only women, and going to pee in a mixed group.

Now consider what these women gain, if the trans-exclusionists have their way. Rather than having a tiny chance of seeing a trans woman in a women’s loo, say, one in a hundred, she might have a lesser chance: those trans women might try to go where they are forbidden. It does not mean that there would be no crime in toilets, because some cis women are criminals. It does not mean that there will be no “predatory men” there, because a small sign on a door is no deterrent to violent men. It just means that the chance of seeing trans women is even less.

It also could mean considerable difficulty for the owners of the space. The law says that it is discrimination on the basis of gender reassignment to exclude trans women from it, unless that is “a proportionate means of achieving a legitimate aim”. That legitimate aim has to be additional to the aim which made it lawful to exclude men. Trans women are protected as soon as we decide to transition.

Fortunately, the Equality Act gives no-one a legal right to challenge the decision if the owners of women’s space decide to admit trans women, but gives trans women the right to challenge those owners if they do not. It is up to the owners and managers to exclude a trans woman if they wish, knowing that if they do they may be subject to a legal challenge. This balances the relative powerlessness of trans women, who may not have the money or the spare resilience to start such a challenge.

Turning to the Ann Sinnott case (Authentic Equity Alliance, indeed. Such silly, portentous names, proclaiming their righteousness, triggering their dupes. I think they mean, anti-trans hate group.) Sinnott wanted to redefine single-sex women’s spaces as excluding trans women. That would have meant paragraph 28 of schedule 3 of the Equality Act, to get technical for a bit, was meaningless and superfluous. Acts do not have superfluous paragraphs.

The judgment is here. Mr Justice Henshaw says, (para 25) “it is in my view clear beyond argument that Parliament has chosen, in the 2010 Act, to place transsexual persons in a different position from the generality of persons of their birth sex”. And at para 5 the judge says the claimant put the same argument in three different ways, none of which was valid.

One commentary claims it is “not phobic” in some circumstances to exclude trans women. But it is based on fear: the fear service users may feel on seeing a trans woman and perceiving her as a man. Unless there is fear, there is no need to exclude. Is it justified to refuse the trans woman service, or to require that she is served in some “separate but equal” way? Could there be another approach?

I object to Legal Feminist’s phraseology. They write of “refusing access to a person of the opposite sex” where they mean trans women. That is, they use the hate-group’s language, and continue the hate-group’s deliberate confusion between excluding men and excluding trans women. We are an anomaly, not a comprehensive redefinition of what it means to be a woman. Including us is an exception for particular vulnerable people, not an assault on the concept of single-sex spaces.

Legal Feminist says “women who have stopped using a service need to make this known”. There is a huge barrage of anti-trans hate against services which might include trans people, and intense lobbying fomented by hate groups. It’s not clear that they cease to use services, though.

I agree when they say this is a sad outcome. Women’s services have better things to do than fight legal cases from well-funded hate groups.

Excluding trans women from women’s spaces does little good to anyone, and great harm to trans people. There will be more litigation, and more triggering. Feminist energy is diverted from women’s needs to a myth.

Here is another commentary.

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.