Suella Braverman

Suella Braverman should not be attorney general. Her speech to the Policy Exchange, where she spoke about anti-trans discrimination, demonstrates that.

The attorney general is the chief legal adviser to the government, advising on questions of international law, human rights, and devolution. The government has great power to amend the law, with a working majority of 71. The Attorney General should say what the law is, not what the government would like it to be: if they do not like it, they can change it.

Even under the Conservatives, previous AGs have usually had far more experience than Braverman. She was called to the Bar in 2005, and elected to Parliament in 2015. From 2010 she was on the Attorney General’s C panel of counsel, the entry level, undertaking basic government cases. Her predecessor Geoffrey Cox was called to the Bar in 1982, appointed QC in 2003, and elected to parliament in 2005. Dominic Grieve practised as a barrister for seventeen years before becoming an MP. Jeremy Wright only practised for nine years before being elected to Parliament, and made the appalling decision to prosecute anti-deportation protesters under terrorism legislation. The Court of Appeal said there was no case to answer.

Policy Exchange is a “highly opaque” think tank which refuses to reveal the identities of its donors. It recommended legislation to prevent their victims from suing the armed forces, and to establish schools funded by government but “free” of some regulation and inspection. In her speech on 10 August, Braverman spoke against Equality legislation, and said that legislation for trans rights should be interpreted in such a way as to make it easy to exclude trans people.

Braverman congratulated Policy Exchange on its arguments for reducing judicial power, and thereby correction of any acts of government against the law or human rights. She says there are trade-offs in allocating rights, which is true.

She asks, “Do our feelings about who we are, change the rights to which we are entitled?” Clearly. A right to marry a woman is no use to a gay man. His right to private life, and so to equal marriage, depends upon his feelings of attraction. My feeling that I am trans is remarkably consistent, despite my attempts to overcome it, including aversion therapy. She means, it’s only a feeling, so unimportant. Against feelings, she balances “the facts of biology”- as if my lack of a uterus is important at all, except if I were trying to bear a child.

But feelings are at the heart of being human. My feelings make me me. She wants to impose some other understanding, which she might call objective reality, to subjugate my feelings, and perhaps her own too- but Reality includes trans people’s feelings. She is the reality denier.

If feelings did not matter, the objection to trans women in women’s spaces would not matter. Braverman privileges the feelings of prejudiced people over the feelings of trans people.

Then she says something truly damaging. She says businesses are going beyond their legal obligations, misinterpreting the law. It is clear she means including trans women in women’s spaces when they do not need to: later she makes this explicit.

She gives a definite, but misleading, interpretation of the Equality Act as it relates to trans women in women’s spaces. She claims trans women, being “biological males”, can be excluded from any women’s space which would be entitled to exclude men. She says this applies even if we have a GRC, though s9 of the Gender Recognition Act provides that my “sex” is female. She says the permission to exclude trans people from women’s services is in fact permission to exclude trans men.

This is completely wrong. It is contrary to the EHRC’s code of practice, and all previous understandings of the legislation. Robin Moira White, barrister and expert on trans law, commented she would have a lot of work if businesses interpreted the law the Braverman way.

Braverman is also wrong on trans schoolchildren.

Does it matter that Braverman is wrong? It matters if businesses or their public-facing workers believe her, or if cis women anti-trans campaigners take this as a licence to complain about trans women in women’s services. A tiny proportion of these matters reaches the courts.

It means that ordinary trans women may face abuse, confrontation and exclusion going about our daily lives. I hope businesses will be aware of a better interpretation of the law, but I am more and more concerned that I may have to endure confrontation, and even threaten legal action.

Trans people in hospital wards

As a Tory cabinet minister said, the NHS under the Tories is “wanting and inadequate”. But its rules on admitting trans women to women’s wards is good. Its guidance adopted in 2019 (pdf) says trans people should be accommodated according to how we present. We do not need a GRC or legal name change. If our breasts or genitals appear of the opposite gender, we should be given sufficient privacy with curtains or a single side room.

A trans person who has not had a genital operation should not share open shower facilities. Where the treatment is sex-specific, such as a trans man having a hysterectomy, staff should discuss options with the patient. If a patient is unconscious, staff should draw inferences from mode of dress and only consider genitals if this is specifically necessary for treatment (I am sad that needs to be said). A trans woman without her wig should have extra care to ensure her privacy and dignity. Nonbinary patients should be asked discreetly about their preferences.

A child’s preference should prevail even if the parents disagree and the child is not Gillick competent.

Unfortunately, anti-trans hate campaigner Emma Nicholson has become aware of this guidance, and wasted House of Lords time at 1am on 17 March to amend the Health and Care Bill to exclude all trans women from women’s wards. The usual hate campaigners- Claire Fox, David “Blencathra” Maclean- came out to bore everyone with their usual disinformation. The government whip, JoJo Penn, thanked Emma for “all her work advocating for women’s rights”, and I hope that is just the usual oily courtesy shown by “noble Lords” to each other. She said the NHS is currently reviewing its guidance and seeks “privacy, safety and dignity” for all its patients. Guidance should be based on “evidence, compassion, empathy and respect”, but she could not give a date for the review being published beyond some time this year.

Fox put her extreme case emotively. She spoke of vulnerable cis women patients losing their right to single-sex wards. She said women (anti-trans campaigners) were effectively being told “Don’t you worry your pretty little heads”. The hate campaigners in the House of Lords have been whinging about this extensively, and the Evening Standard reported their words uncritically. Then Fox refers to the newspapers. It is all circular. However she gave the good news that Dr Michael Brady, NHS LGBT adviser, is involved in the review, has consulted Stonewall and Mermaids, and stated there are “no plans to reduce the existing rights of transgender people”.

Nicholson told the story of a trans woman constituent when she was an MP. The woman was a police officer, who after transition was given a lower rank. Nicholson claimed that she helped “persuade the police that [transition] was a fully acceptable thing to have done”. Then she claimed a trans woman on a women’s ward raped another patient a year ago. That is explosive.

Ralph “Baron Lucas” Palmer (Con) claimed “trans women are men” under the Equality Act. Michael Farmer, former treasurer of the Tory Party, recited some legal interpretation from anti-trans campaigners, claiming that excluding trans women from women’s wards would be a “legitimate aim”. Timothy Clement-Jones, LibDem, spoke for the amendment despite his party’s definition of transphobia. As nonbinary people are not explicitly protected under the Act, he wanted them assessed for objective sex.

Terence Etherton, former Master of the Rolls (President of the civil Court of Appeal) explained that putting trans women on men’s wards would be unlawful harassment under the Equality Act, as it would violate our dignity. He said changing your name is changing an “attribute of sex” sufficient to clearly fit the protected characteristic of gender reassignment. “It is not a legitimate aim that some people feel uncomfortable sharing accommodation and facilities with trans people of the opposite birth sex. That would make a nonsense of having the statutory protected characteristic in the first place.”

Sal Brinton, LibDem, said Nicholson’s amendment “seeks to create a false understanding” of the Equality Act.

Michael Cashman talked of evidence: freedom of information requests around the country have shown there is no need to change Annexe B, the part of the policy specifically about trans people. He pointed out how Maclean, as a Home Office minister, had blocked an equal age of consent for gay sex with straight sex. That had to wait for a Labour government, despite a win in the European Court. He drew parallels between the hate against trans women now, and against gay men in the 1990s, and “against minorities across the centuries”. Ruth Hunt said “many lesbians” support trans inclusion. To detoxify the debate, she said, we should stick to the facts. Elizabeth Barker, LibDem, said the amendment was not about single-sex wards at all, but Nicholson’s continuing campaign against trans women, and “we should simply not pay attention”. She says trans women “are women with a different experience”.

Trans women are probably safe from this review. We will continue being treated on the appropriate wards, and given dignity and privacy. And the hate campaign will continue.

Abolishing sex

What would happen if the law no longer certified whether a person was male or female? Now, birth certificates and GRCs say what our sex is, and everyone has one or the other, even nonbinary people, or people with variations of sex characteristics. There are rules on changing classification. What if that was ended? Would it help create a world where children were not socialised into gender, and people could live without gender-based expectations or constraints? The Future of Legal Gender project has published its final report, together with several articles, to answer these questions.

They refer to reform as decertification. It is a proposal made to see what it might mean, rather than to solve a specific problem. They interviewed experts, campaigners and ordinary people. Possible benefits include subverting the basis of discrimination, supporting self-expression, and removing the legal burden of gender change. They asked about possible problems, and clearly anti-trans campaigners have been at them, saying sex-specific services, data gathering, and positive action against discrimination could all have difficulties.

Possibly, law could decertify sex as part of a neoliberal project to stop law and government tackling social inequality. The project wants decertification to be part of a social justice movement to support diverse ways of flourishing. It would need to involve greater public provision, not continuing austerity.

Law could still prevent sex discrimination as it does race discrimination. Most people would object to having a race legally assigned to them. Many service providers recognise nonbinary people, and law is increasingly gender neutral.

People consulted spoke of the need to dismantle male domination, violence, and gender based roles and stereotypes. Trans people could back these goals and still advance their aim for recognition of diversity. The Project says gender is institutionalised, rather than being an identity. It is a set of institutional processes rather than personal qualities. It affects people’s values, patterns of wealth and power, and ways of interacting. They say understanding of sex is interpreted through a gendered environment. I say sex as in reproduction only matters if you want to reproduce, or have a physical health condition. Everything else is cultural. Most people agreed our lives should not be defined by the bodies we are born with.

A leisure centre manager said it was important not to assume someone’s gender. When asked where the changing rooms were, they would say the men’s is there, the women’s is there, and the accessible room is there, and leave it to the customer to make the choice. However, when at the cinema I asked where the loos were, I was sent to the men’s.

Sex inequality in the 19th century involved voting, property ownership, inheritance and employment. These legal inequalities have lessened. We need sociology to recognise and research inequality that remains, relating to poverty, work, violence, exclusion and social stereotyping.

Gender is a complex social phenomenon that produces the categories of women and men to shape people’s lives. Decertification might make that shaping less rigid. It would undermine the assumption that gender divisions in roles or behaviour are natural, lawful or desirable, and support diversity. It might counter early gender socialisation of children.

Would it prevent “single sex” spaces? Many women’s organisations rely on self-identification, not asking for legal documents or assuming that a person’s sex or gender could be known from their appearance. They use risk assessments to manage potential problems, rather than expecting biological status as female to safeguard users. Single sex spaces can imply that the risk to women is from strangers, but most violence has perpetrators the victim knows.

They suggest that sports could be classified as in the Paralympics, which assesses functional capacity. What of positive discrimination, such as all-women shortlists to select political candidates? Applicants could be asked to explain why they fit.

We need data to show the inequalities and needs of different groups of people. People’s experiences differ by social class, disability, beliefs and race as well as gender. Why is the data needed? More precise questions, such as “do you menstruate?” could produce more useful data. Any data collection is intrusive for people- the intrusion is justified if the data is used for their benefit.

Trans people can use a GRC to assert our gender, and that protection would be lost. However, I do not want to provide documentary evidence: I want my word to be accepted. I am a woman.

The project says legal reform can be part of a wider programme of change, one policy tool. It is a creative way of thinking big. The aims would be to end legally registered sex or gender, to help dismantle gender hierarchies, to support people whose gender leads us to be excluded or disadvantages, and to undo broader social injustice and inequality. For discrimination and the public sector equality duty there would be a new ground of gender. Employers and service providers could not impose gender stereotypes. Services could still exclude people based on sex or gender if this was done to address unfairness or safety.

The Telegraph report was merely mocking. “The census could ask ‘do you menstruate?’ instead of ‘are you female?’ to be inclusive of transgender people, a taxpayer funded study has suggested.” Including trans people is not the only reason for the project’s proposals, but they wanted to wind up anti-trans campaigners to hate the study as well as their usual anti-woke, anti-tax readers. A trans woman shared the Telegraph’s hate screed on facebook, so I learned about the report. I am so glad I did.

Reform is unlikely to happen soon, but I am glad people are thinking about the possibility.

The campaign against gender recognition

Joanna Cherry’s article in the New Statesman (archive link) gives a handy summary of the myths and scaremongering used by the anti-trans campaigners to oppose trans rights. It starts with the headline.

“Our fears have nothing to do with transgender women,” claims Cherry. No, only “Predatory men” who could self-identify their way into women’s prisons, services and sports. She quotes a Scottish minister saying predatory men don’t pretend to be anything else, then swoops on it. Of course predatory men don’t admit they are predatory, often not even when in prison for rape, but what the Minister meant was that they don’t pretend to be women. If Cherry had any better arguments, or less trust in the blind prejudice of her audience, she would not have stooped to creatively misunderstand that as she did.

She does not address the fact that predatory men could self-identify their way into women’s services now. Trans women do not need a medical diagnosis to do so. We get in, under the Equality Act. The EHRC, before its institutional capture, said so. A medical diagnosis is impractical. Doctors know we are trans women because we believe we are women, want to be women, or want to be treated as women. Anyone might hear us say that, and be no less likely to tell future detransitioners from those of us who never do than doctors are.

A predatory man need only pretend to be a trans woman. No-one would ask him to show a gender recognition certificate, a diagnosis or even anything with a female name. Violent men push the door open, or attack women in the street. Deceitful men love-bomb and charm their victims, then increase their control carefully, grinding down the victim’s ability to resist. They don’t pretend to be trans.

Would a mediocre male athlete transition to compete against women, given the appalling hatred and vilification Laurel Hubbard faced? If so, a GRC would not let him do that. Sporting bodies can exclude “transsexual persons”, which includes those of us with a GRC, under the Equality Act 2010 s195, if it is necessary for fair competition or for safety.

Cherry says the Scottish Bill does not define “gender”. Well, the word is far more useful in academia than in law. Feminists can say that gendered expectations and treatment are patriarchal oppression, or talk of gender stereotypes, but in law you need only say that self-identified transgender women should be treated as women, which in effect is what the Equality Act does. Cherry refers to the Scottish appeal judges (the Inner House of the Court of Session) but unaccountably does not quote them saying that a trans woman without a GRC can truthfully say she is a woman, even where there is a public interest in truth and criminal penalties for falsehood.

The Gender Recognition Act was a step forward in recognising trans people’s human rights at the time, as required by the European Court of Human Rights, but only a tiny proportion of trans people have a GRC because it is expensive and humiliating to apply for one, as the Women and Equalities Committee report found. Cherry repeats the same tired old lies, despite them being refuted again and again.

Cherry claims 16 year olds need protection from gender recognition. But, they cannot get puberty blockers or cross-sex hormones without a recommendation from a psychiatrist and an endocrinologist, independent of legal gender recognition.

Finally, an MP and QC, supporting the policy of the Westminster government, apparently supported by the EHRC, who has cited billionaire author JK Rowling and mentioned social media being awash with arguments, writing in the New Statesman, though she could have chosen the Scotsman, Herald, Times, or Guardian, complains of the power of the trans lobby “silencing” critics. It would be funny if it were not terrifying.

Idleness .*oil on canvas .*111 x 73 cm .*signed b.l.: J. W. Godward 1900

Sex and gender in law and politics

I am a trans woman. I am never going to say my “sex” is male. To threaten me with the offence of making a false answer to the Census, with a maximum fine of £1000, would only increase my determination. I have a GRC, which has never been useful to me, which was expensive and humiliating to obtain, but which by s9 of the Gender Recognition Act ordains that my sex is female; but I would never have said I was male, certainly not after transition, probably not after deciding to transition.

Anti-trans campaigners speak movingly about pregnancy. I understand. Female reproductive biology, its wonder and delight, and the humiliation and threat of it in patriarchy, all matter. The powerlessness and difficulty of new motherhood can radicalise people.

I don’t deny sex is real. But trans people exist. At worst, I have an indefatigable delusion- I believe I am a woman, and cannot be persuaded otherwise. Unless you believe in a “soul”, this is biological, and AI can differentiate trans and cis brains. Recognising trans people does not mean devaluing cis women or their struggles. The great lie is that trans rights are a threat to women’s rights.

Sex and gender are synonyms in law. Gender, in ordinary usage, such as in a form asking your “gender”, is a synonym for sex. The Gender Recognition Act says my sex is female. The Equality Act s7 refers to “gender reassignment” of “transsexual persons”, and the Code of Practice shows trans women use “single sex” services for women. The distinction- sex is physical, gender is cultural- in gender studies cuts both ways. Unless you want to have a baby, or have a health problem, everything else is culture.

The Women and Equalities Committee of the House of Commons, and the Equality and Human Rights Commission, as well as anti-trans hate groups have demanded a legal distinction between sex and gender. I see the benefit for the hate groups: cis women, called “women”, would use single-sex services and transgender women would use the men’s. Perhaps we could still change our sex with two years “in role” and a diagnosis of gender dysphoria, though that is unworkable. Perhaps even with a GRC we could still be excluded. Or the law could be redrafted, so that after we decide to transition trans women could use women’s services unless there was good reason to exclude us, as now. It seems a huge fuss for no benefit.

We used to call ourselves transsexual. The word puts social pressure on us to have surgery, and not everyone wants that, but we could go back to it. I am a woman, not a feminine male.

To threaten criminal prosecution of a trans woman who says her sex is female is cruel and humiliating, yet a hate group tried to get the Scottish courts to do just that. Fortunately, unlike in England, the court refused. The judgment is in this pdf.

The guidance will say, “If you are transgender the answer you give can be different from what is on your birth certificate. You do not need a Gender Recognition Certificate (GRC).” It says nonbinary people must say M or F.

The hate group’s bottomless pockets are shown by this malicious attempt, but their strategy of suing whenever they can imagine a cause of action has backfired. They attempted to argue that the word “sex” has the narrow, exclusive meaning that claims trans women are men, and the judge found the complete opposite. He said the statute should be construed in the interests of society. The Scottish government argued that had changed- as trans people are more and more recognised, the court could say that a trans woman’s sex is female, even if she has no GRC; but the judge said there were trans people in 1920 when the Census Act was enacted, and “sex” was capable of including self-identified or lived sex, even in 1920. So, trans women are women, and always have been. See paragraph 55.

In 2018 the Scottish government wanted to specify that sex included gender identity, for the purposes of the census. That definition was withdrawn. The judge calls this a “no-score draw”- both human rights campaigners and anti-trans campaigners agreed it would cause confusion, though for different reasons. However, that certainly does not mean that sex does not include gender identity (para 48).

The hate group attempted to argue that the case of Bellinger, about a trans woman’s marriage to a cis man, defined the word “sex” in law for all time. The judge said it didn’t: it only defined “sex” for the purposes of marriage in England, in 2003.

In England, the hate group got an interim order against the census on 9 March, when the census was due to take place on 21 March. They got the guidance in England changed by a trick. It is unlikely that the proportion of the population who is trans is significantly different in England and Scotland, but if the Scottish census produces a higher estimate it will show the hate group scared trans people from answering the trans question.

Even without a GRC, I would have said I am female. The judge says an answer provided in good faith and on reasonable grounds is not false, and therefore trans women have this right. As our passports say “Sex/Sexe: F”, it shows our sex is recognised by the State even without a GRC. A cis woman who had never thought she was trans would be answering the sex question falsely if she said she was male; a trans man would not be.

Hate groups say it distorts statistics to include trans women as women. The 2011 census could only estimate the Scottish population as between 5.21 and 5.38 million. There are probably not 170,000 trans people in Scotland. Beside that unavoidable imprecision, the effect of trans people is insignificant.

The Scottish census case provides a host of good legal arguments why trans women are women, and our sex is female. The hate group has scored an own goal.

If you have the time, I recommend reading the judgment. However, it quotes over four pages the hate group’s arguments. I found them horrible. I had to keep taking a break, to reconnect with decency and reality.

27 February 2022: The Inner House heard and dispatched an appeal quickly. Lady Dorrian, the Lord Justice Clerk, who gave the judgment in the Scottish Public Boards case, also gave the judgment here. It made this case considerably less valuable to trans people than the initial judgment might have seemed. See paragraph 23: a trans woman without a GRC can say her sex is female if she likes; but where “matters of status, proof of identity or other important rights” are involved, “it may be necessary to apply a biological definition of sex”.

I always understood that without a GRC I would not have a claim for sex discrimination if an employer preferred a man to me (notwithstanding Neil Gorsuch’s argument). I worried Lady Dorrian’s decision in the Scottish Public Boards case imperils trans women’s rights to enter women’s services, if they do not have a GRC, as Joanna Cherry implies. But, read with the census case, it does not.

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.

A Complaint to the Equality and Human Rights Commission

Will trans women be excluded from women’s toilets in Britain?

Kishwer Falkner, Chair of the EHRC, has announced that they will issue new guidance claiming that businesses and organisations can exclude trans women from services including toilets and changing rooms. Before such guidance is issued, it is worthwhile complaining to them about Falkner’s comments, referring to the Code of Practice and existing Guidance. Continue reading

The Equality Act code of practice

Trans women are entitled to enter women’s services by self-identification. Under the Equality Act s7, we are treated as trans women- “transsexual persons”- from the moment we decide to transition, and entitled to use services according to the gender we present. That decision is before we see psychiatrists- years before, with the current waiting lists. So we self-identify. We have been entitled to do this since regulations in 2008. Self-ID is no new threat, but the ordinary law.

The EHRC introduced guidance in April 2022 contradicting the Code, but the Code still takes precedence. The code of practice on Services, public functions and associations reads as from a different time. It says, “The Equality Act 2010 sets a new expectation that public services must treat everyone with dignity and respect.” Continue reading

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. Continue reading