Beliefs and Behaviour

The Equality and Human Rights Commission is arguing that transphobic beliefs should be protected, and no-one should be sacked for transphobia. I hope the Centre for Global Development (CGD) win in the Employment Appeal Tribunal. Why should they? What “beliefs” should be protected from discrimination, and when do they become behaviour for which it is reasonable to dismiss someone?

The sacked transphobe claims she was sacked for believing “Sex is real”, but that is ridiculous. There must be something more. If she simply believed that sex is real, like almost all the population including most trans people, she would not have been sacked.

It’s not just a belief that sex is real, it is a belief that this affects trans women and the way she sees us and interacts with us in a particular way. I believe sex is real, and I believe that trans women are women. But it’s not just that she believes trans women are men, it is that she believes this matters. She would hardly have got to the stage of losing her job if she did not. She believes that access to women’s spaces should be for women as she defines the word, so that trans women should not be admitted. She believes that she is entitled to misgender people. She used male pronouns to refer to a nonbinary person.

There has to be some behaviour for others to realise she holds a belief. For example, she wrote, “Trans women are men, and should be respected and protected as men”. She means, we should be excluded from all women’s spaces, and that some other way of accommodating us should be found. On 2 September 2018 she tweeted, “women and girls lose out on privacy, safety and fairness if males are allowed into changing rooms”. So when buying a skirt I would have to go to the men’s department to try it on.

In October 2018 some staff at the CGD complained that her tweets were transphobic. The employer investigated the complaints. She claimed she would respect “anyone’s definition of their gender identity”. Would she object if she saw a trans woman enter a women’s loo?

After she parted ways with the CGD, the transphobe entered a “very bitter” dispute with Gregor Murray, after misgendering them. This indicates how her beliefs affect her actions. She campaigns for a radical change in trans rights, so that trans women are excluded from the women’s spaces we have been in informally for decades and under the Equality Act since 2010.

Protection from discrimination on the grounds of belief does not mean that an employer has to tolerate any action by the employee. You can’t be sacked for being Christian, but if a Christian baker refused to make a wedding cake for a gay couple their employer would be entitled to sack them.

The transphobe wanted the CGD to publish her screeds claiming trans women are men, or should be excluded from women’s spaces. The 2 September 2018 tweet argues for stripping away my rights. The transphobe’s contract involved writing essays for the CGD, some of which still appear on its website, above her own name.

Even if her belief is protected, that tweet is behaviour which could have brought the CGD into disrepute with some of its clients, which entitled it to sever links with her. For example, Kristie Higgs was sacked, reasonably and without unlawful discrimination, for facebook posts.

However, that does not address the question of whether the belief should be protected, if it is not expressed in a public, objectionable way.

To be protected, a belief “must be worthy of respect in a democratic society, not be incompatible with human dignity and not conflict with the fundamental rights of others”. If the transphobe’s “belief” is protected, that is a limit on my rights.

I have a right not to be discriminated against on the grounds of sex. The European Court of Justice in 1996, and the US Supreme Court in 2020, held that discrimination on the grounds of transgender is discrimination on the grounds of sex.

I have a right to transition and thereafter to be treated as being of the sex to which I have transitioned. That was the result of Christine Goodwin’s case.

The Employment Judge wrote that the belief “involves” violating trans people’s dignity. The transphobe claims that it did not, that she was quite capable of treating a trans woman with courtesy, which would involve not misgendering them. However she believes that I cannot honestly describe myself as a woman. That belief is not worthy of respect. It violates my dignity.

If the transphobe wins her case, it may be a distinction without a difference. Transphobes can still be dismissed if the employer considers their campaigning brings the employer into disrepute or offends the employer’s customers. The transphobe would not have had her contract terminated merely for a belief: it was terminated because of her obnoxious tweeting. Some employers would find that tweeting offensive, and end her contract. Some employers would not.

Gender Martyr

Rob Hoogland has been jailed, and the extreme Right are up in arms against it. He was jailed for refusing his child medical treatment which doctors said was necessary, and denying the child’s medical condition, then holding the court in contempt for two years. On being jailed, he expressed remorse and said he had been used as a pawn, and “played”, by transphobes opposing all treatment of trans children.

The child, whose real name I don’t know, socially transitioned at school for a period of years. He did not feel able to tell his parents, and his parents justified his suspicions by completely opposing his treatment. He was assessed by doctors including an endocrinologist who set out a course of treatment. Hoogland refused to co-operate, so the hospital decided they knew best the medical treatment the child needed, and would treat the father’s consent as unnecessary under the law.

Hoogland continued to act up. He was adopted by the hard right, as he says as a pawn for them to use to oppose gender affirming care, and in 2019 the court ordered him to use male pronouns when referring to his son.

In March he was arrested, and, overwhelmed by a sense of his own righteousness backed up by the wealthy, powerful transphobes, he stayed in jail rather than consenting to admit his son’s medical needs. At the hearing on Friday, he finally expressed remorse, so his sentence was reduced to six months.

If the British Columbia Supreme Court publish the judgment, I will have a look at it. However, otherwise, I can only find reports of the case on the nutcase transphobe/ hard right press: New York Post, “Christian Concern”, and a host of tiny websites. “Trans ‘Justice’ has gone haywire” blares some worthless transphobe on some site. No, transphobes feel entitled to ignore medical advice, the needs of their children, and the orders of the court.

What about the detransitioners? ask the phobes. Well, what about the retransitioners. The phobe conditional positive regard- lovebombing any trans man who will detransition, withdrawing the love if they break increasingly stringent rules- works with incessant societal transphobia to make some detransition.

There’s a lot of transphobe money around. Rob Hoogland’s crowdfunder raised $56,000. So the judge ordered him to donate $30,000 to a charity.

The phobes don’t care how many lives they ruin. Trans children can just go hang. Poor Hoogland regrets how the phobes manipulated him, now. Hysterical phobes are milking the story still. There’s a picture of a pair of fists grasping jail bars, the fists brightly lit against blackness in the cell, which hardly reflects Canadian prison conditions now.

I really should not go on Twitter. This morning over breakfast I read a New York Times opinion article about Planned Parenthood, how Margaret Sanger, its founder, was a racist eugenicist, and how the charity should reckon with this blighted heritage. There’s an aside near the end about how language might exclude trans and nonbinary people, and phobes Jesse Singal and Hadley Freeman choose to emphasise this as if PP no longer cared about women. “Misogynistic!” I found that when I ill-advisedly clicked on a link on a facebook trans group.

The obsessive haters in Britain have chosen yet another new name. This time the same tiny group of phobes have decided to call themselves “thoughtful therapists”. Perhaps Robert Withers, the Andrew Wakefield of trans health, is one of them. They oppose law on trans conversion therapy based on the Memorandum of Understanding, even though it is signed by the British Association of Counselling and Psychotherapy and nineteen other health, counselling and psychotherapy organisations. It’s like the American Academy of Pediatrics being condemned by some nutcase far right Christian group with “Pediatrics” in their name.

I hope the robust commitment to rehabilitation of the Canadian justice system does Rob Hoogland some good.

Law and society

Some trans women want it to be difficult to get a gender recognition certificate, not knowing it is irrelevant in real life.

The fee to the Gender Recognition Panel has been reduced to around £10, and the response was mostly a yawn. We still need a letter from a specialist psychiatrist on an approved list, which might cost hundreds. I commented that ICD 11 confirms I am not ill. Why should I need a doctor, to confirm I am not ill in a particular way?

S. said there should be medical involvement. What about someone still on the waiting list, who has been expressing themself in their true gender for two years? She said they would be able to get a GRC. When T. corrected her- you need a psychiatrist from the “T493 list”- she said “Whilst the current system in place is perhaps not ideal for everyone, it does work successfully for the majority”. She has “come out the other side all smiles”.

J. has just had a referral for GRS, and is “glad there are checks and balances in place”. B. has just had GRS and getting her GRC was “the simplest”. T. commented the current policy is wrong, especially with waiting lists as long as they are now, and a longer wait for the second interview after which you might get hormones. Private waiting lists are lengthening too.

This was an argument between trans women on the medical route. Three of us, whether we had completed it or not, cared about those waiting. Three had completed it, or almost, and did not. The lack of empathy, with people who were in a position these women had been in quite recently, saddens me. Two had left trans groups, “attacked by the trans police”- or, challenged for their too-rigid views.

One characterised “self-identification” as a “camp male with a beard who insists they are lesbian, but don’t intend physical transition”. So, how does the law affect how society treats such people?

Imagine Dave, a cross-dresser turned on by appearing female, who thinks transsexuals are a class apart and has no intention to socially transition. His pronouns are he/him, most of the time. Dave goes to the pub dressed female, and into a women’s loo.

People can’t tell if Dave is protected under the law or not. He could be someone who has decided to transition but is not that good at expressing female yet. Or Dave, after years of practice, might look more feminine than some trans women. So most people will not object. He’s not protected under the law, and if he wanted to sue a pub that would not let him in he would have to lie, but he usually won’t have any problem out in public. People might not know details of the law beyond a vague idea that trans people are protected, and won’t have any reason to believe he is not.

If he does something objectionable, people might object, but not because he is “only” a cross-dresser. Trans people can be excluded from spaces, generally in circumstances when cis people would be excluded too.

Now consider Stephanie, who has had GRS and has a GRC. If she is read as a trans woman, an anti-trans campaigner might object to her in the women’s loo. She is protected by the law, but that does not guarantee she will not face bigotry.

Even in South Carolina under the “bathroom bill”, a cross-dresser might get away with going into a women’s loo. If anyone noticed they might not want the effort of objecting. Sometimes women with a masculine appearance face objection. It’s a matter of luck.

Sandra is still on the waiting list for the gender clinic, so can’t get a GRC, but has changed her name and is now expressing herself female. She can get a bank card and driving licence in her new name. She can get a passport marked F- she may need to change GP. A GRC might make slight technical differences to her rights to marry, but otherwise would be useless. The law already treats her as a woman. Mostly, society will too. For the law to say she is a woman is very little more. That’s what a gender recognition certificate means. Already, she would have a good discrimination claim against a business excluding her from its women’s changing rooms.

Harnaam Kaur, a cis woman with a genetic anomaly and a full beard, might be stared at, or face objections in the women’s loo, but a beard does not make her a man.

What would GRC reform achieve? It would be the law, which helps to mould society, acknowledging trans people. It would be symbolic but would have a real effect on society as a whole. What does the denial of GRC reform, and the loud campaign of Tories and Republicans, achieve? A moral panic, and increased hostility to trans people whether we have had surgery or not. Their refusal to modernise the law, and insistence on “checks and balances”, produces unjust suspicion against post-operative trans women as well as cross-dressers.

Here’s Abigail Thorn. I am a fan. I looked at her oldest currently available video when she did not have a decent microphone, but was developing her comedy and clarity of explanation of complex concepts, already at a high standard. Now she has professional recording equipment, a studio, props. Her Amy Coney Barrett video, with her male voice but looking feminine, feels so strange.

She says there is a difference between passing as a cis woman and being seen as feminine so read as a woman. She says when she first went out dressed female she was seen as a bloke in women’s clothes, then later she was seen as a woman, even if as a trans woman. I find her charismatic- she seemed an attractive man, with that beard, but now is gorgeous. Her voice is warm and lovely, and the few hints of sounding like a counter-tenor will fade away. I am feeling self-conscious about my appearance. And, usually, I am treated with reasonable courtesy. My GRC does not affect that at all.

Puberty blockers for trans children

Trans children who were receiving puberty blockers before the Bell case can continue getting them if the parents consent. This win is thanks to the Good Law Project’s Trans Defence Fund.

Dame Nathalie Lieven was one of the judges in the Bell case, and says that nothing she says departs in the smallest extent from the Bell judgment. Rather, she has decided that where a child was receiving puberty blockers (PBs) before the Bell judgment, and the parents consent to continue, the NHS can prescribe them on the basis of the parents’ consent.

How else might it be managed? The court could appoint CAFCASS, the Children and Family Court Advisory and Support Service, to prepare a detailed report and the judge would make a decision based on that. It is hard to see how social workers could add anything when parents, doctors and the child involved all wanted to go ahead with treatment. A social worker would be no better than a psychiatrist in judging a child’s maturity and understanding. In this case, CAFCASS was not appointed.

The Bell case still stands, and when it is appealed in June 2021 the “expert” testimony, brought by the anti-trans campaigners, will stand. The court’s findings about the psychology of trans children are findings of fact, which the appeal court will not challenge. GIDS, the Gender Identity Development Service, should have led better evidence, and does not get a second chance.

Before the Bell case, GIDS prescribed PBs on the basis of the child’s consent. The Bell case decided the child was not capable of consenting.

XY was registered at birth as a boy. She is 15. She had always only been interested in girls’ toys and clothes. At primary school she tried to conform to a more male stereotype, but became withdrawn and miserable. She came out to her parents as trans aged 10. Once she transitioned socially at school her confidence grew, and she became much happier. She changed her name by deed poll in 2016, and had seven assessment interviews with GIDS, who also saw her parents, together and separately.

She has never been diagnosed as having an unresolved mental health issue, and she is not autistic, the judge says. An autistic child will face greater barriers to getting the PBs s/he needs.

XY’s Mum, AB, did extensive research on PBs. She was fully aware of potential side effects. The girl started on PBs in July 2019, when she was 13 and had commenced puberty, because the parents did not want her taking unnecessary medication, but the puberty changes were causing considerable distress. They decided not to undertake fertility preservation. At any point before she starts CSH, cross sex hormones, she can stop PBs and freeze sperm, but that would involve developing male secondary sex characteristics. She and her parents have continued to attend GIDS.

The girl’s GP has continued to prescribe PBs. Some other children’s GPs have not. The anti-trans campaigners, represented by Bell’s solicitors, attempted to butt in but failed, in part to protect XY’s anonymity.

The court asks, can the parents consent to PBs, and are PBs in a special category of medical treatment requiring an application to the court?

Parents have a duty in English law to protect their children. Courts can take children away or make decisions for the children, instead of the parents, if it is in the child’s “best interests”, but do not do so lightly. Doctors ask parents to make the most serious decisions about their children’s medical treatment.

The Bell case made it considerably more difficult to demonstrate that a child was capable of consenting to medical treatment, especially PBs. GIDS did not make a further assessment of whether the girl was competent to consent to PBs, so the court treated that question as undecided. If the child was still able to make their own decision, even after the restrictions imposed by Bell, could the parents’ consent be relevant?

Here, the court decides that where the child is capable of consenting, the parents cannot override the child’s decision. But they still have a duty to make a decision in the child’s best interests where the child cannot or will not decide.

The judge says the doctor can rely on the parents’ consent, because the child has not objected to it. I find it inconceivable that GIDS would prescribe CSH or PBs when the child was not enthusiastically in favour. But there has been no further assessment, by the court, social workers, or psychiatrists whether the girl is capable of consent as defined in the Bell case, so the child’s ability to consent is unclear. In that case, where the child and parents both consent, and treatment has started already, the doctors can prescribe PBs.

The court considered whether the Bell case as it stands makes PBs a special category of medical treatment which requires court authorisation, or where it is good practice for doctors to seek court authorisation. Whether it is good practice should be an issue of medical ethics for the General Medical Council. However the law depends on a line of cases on sterilization, where a pregnancy would be disastrous and contraception was not possible. Some of those cases related to women over 18, where parental consent would be irrelevant.

The court looked at two Australian cases. Previously, parents and trans children seeking PBs or CSH had to seek court approval, but after Kelvin’s case, they do not. An Australian judge said loving, caring and committed parents who are intimately aware of their children’s difficulties and deal with their concerns know their children better than a court ever will. They went the opposite direction from the English court in Bell.

GIDS pointed out they were subject to regulatory oversight, from the NHS and ethical rules. There is a review of GIDS looking at treatment of trans children, the Cass review, expected to report this year. The judge observes that whether PBs are therapeutic for trans children is strongly disputed by academic experts, and is a matter for research, not litigation.

The judge decided that PBs are not in a special category where the parents can not consent, and the matter has to come to court. The matter should come to court if the doctors think the parents are being pressured to consent or the doctors disagree amongst themselves. In practice one parent or one doctor can veto treatment, and it must come to court.

Children who had not started PBs before the Bell case are now restricted by NHS guidance.

Once a child reaches 16, the parents cannot consent for them. Bell, who was 17 when she started on T, passionately argued that she could not consent to it, and the law, at least for the moment, agrees. But children 15 or younger on PBs now can continue to get them, based on their parents’ consent, and the courts possibly will not interfere with the Cass review. It is a small win for trans children.

The Good Law Project described the case and published the judgment here.

Court actions against trans rights

Millions of pounds are being raised and spent, attacking trans rights, and public bodies that have a reasonable view of trans rights, in the courts, forcing those public bodies to defend themselves. The aim is to make defending trans rights prohibitive, and to change the language, so that the word “woman” does not include trans women.

Arcane law having almost no effect on trans people in public life is attacked. That was the case in “For Women Scotland Limited” v Lord Advocate. The anti-trans hate group, with its disingenuous name, failed in its attempt to embarrass the Scottish government over the Gender Representation on Public Boards (Scotland) Act 2018. The judge, Lady Wise, in the Outer House of the Court of Session, said “This case does not form part of the policy debate about transgender rights, a highly contentious policy issue to which this decision cannot properly contribute”. The only legal challenge concerned the powers of the Scottish Parliament, and the interpretation of the power to make that Act itself.

Nor would the case, if it had been successful, have been likely to affect the life of a single trans woman. The 2018 Act provides that where a public board in Scotland has more men than women, is recruiting new members, and interviews candidates for membership who are otherwise equally qualified, a woman candidate should be preferred to a man candidate. For the purposes of that Act, “woman” includes a trans woman who is “living as a woman” and seeks to “become female”.

I don’t know how many positions on public boards there are, or how often candidates are equally qualified. Where candidates are equally qualified, interviewers can generally justify their choice by some reason to prefer one or the other, so perhaps the Act has never resulted in a choice of candidate being altered. Nevertheless, the hate group still wanted to challenge the rule, so that trans men would be treated as women under the Act, and trans women treated as men.

The Scottish Government negotiated an extension to its powers, and specifically requested power to make this Act. The Westminster Parliament duly amended the Scotland Act 1998 to give this specific power. Power to make law on “Equal Opportunities” and discrimination is reserved to Westminster, but there is now a specific exception in Schedule 5 of the Scotland Act to permit this specific Act.

The question before the court was then what was the interpretation of the Scotland Act, which refers to “the inclusion of persons with protected characteristics” on boards. Trans people have a “protected characteristic”.

If interview panels might rarely choose a woman over a man because they found them equally qualified, how much more rare would it be for them to find a trans person equally qualified with a cis person? Trans women “living as a woman” are about 0.1% of the female population.

The Equality Network intervened for trans rights, supporting the Scottish government and trans women. The judge found their submissions “detailed and helpful”. They argued that the concepts of “sex” and “gender” and the instances of discrimination relating to them were so interrelated that they could not be kept entirely separate. Many claims for cis women focus on socially constructed gender roles, such as responsibility for childcare. The Scottish Trans Alliance, a project within the Network, did the work. Here is their press release. They were supported by the Scottish Just Law Centre.

The Equality Network is a major campaign group for LGBT rights in Scotland. It won two “Campaign of the Year” awards for its campaign for equal marriage, the first in the UK. I take heart from the support of lesbian and gay allies against the bitter, but well-funded, hate groups.

The advocate for the Scottish Government stated that government policy was that transgender women are to be treated as non-transgender women unless to do so would be prohibited by law. She said that that reflected the recommendations of the UN Convention on the Elimination of All Forms of Discrimination against Women. “Trans women are women.” Technically, a “policy” needs an Equality Impact Assessment, so this is not formally a policy, just the attitude of the Scottish Ministers.

When the hate group claimed to be supporting the interests of trans men, the judge said “such people are visually and socially male and so not operating as women”. They would not want to be treated as women, even when it was a career advantage.

This is not a binding precedent, even in Scotland, but the judge pointed out that EU law acknowledges that trans people are to be included as being of the sex to which we intend to reassign- even before reassignment. This shows the haters are unlikely to succeed. In the European Convention on Human Rights, “transgender women will for practical purposes be indistinguishable from non-transgender women”.

There may be an appeal, to the Inner House of the Court of Session then to the Supreme Court. The haters’ pockets seem limitless. I hope they will pay the Scottish Government’s court expenses, but this is not yet decided. Still, in this case so far, the wealthy haters have lost. It’s a victory for all queer people.

The judgment is available here.

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”.

Johann Lamont and Forensic Medical Services

Is there any place where a cis woman should be able to insist there is no trans woman, or is that transphobic? What about a medical examination of a victim of sexual assault or rape?

The medical examiner might have to take a semen sample from inside a woman’s vagina, or examine her internally for injury. The woman has been violated, and so is in a vulnerable state, possibly disconnected from her body, or flinching from touch. Should she be able to insist that the examiner is a cis woman?

In Scots law generally there is no distinction made between gender and sex. Both the Equality Act and the Gender Recognition Act use the words interchangeably, and after my GRC the GRA confirms that both my gender and my sex are female. The Victims and Witnesses (Scotland) Act 2014 allowed a woman to choose that the forensic medical examiner should be a woman, by saying the victim could choose the “gender” of the examiner.

Transphobes campaigning against trans rights have sought to create a distinction, saying that transgender people change our gender, that is, our presentation and our conformity to stereotypes, but not our sex, which is based on genes, gonads and genitals. I still have a Y chromosome, so they say my sex is male. Then they say I should be expelled from women’s spaces. This would change my life. I have been in women’s spaces for decades.

The purpose of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021, which came into force on 20 January, is to allow victims to seek a forensic medical examination from the NHS without needing to report the crime to the police. I would have hoped such a change could be made administratively, by changes to police, NHS and court procedures, but it was a Bill, taking months to get through Parliament.

Johann Lamont MSP introduced an amendment into the draft Bill, to change the word “gender” in the Victims and Witnesses (Scotland) Act 2014 to “sex”. She imagines that now, victims can specify that they want a cis woman, not just a woman.

I am not sure what practical effect that has. I want a woman to be able to get an examination where she is, in Ullapool or Lerwick as well as Edinburgh, ideally without an examiner being flown out from the city. But then, the examiner has to be able to stand as an expert witness in the High Court of Justiciary. I have no idea how many people are qualified to perform such an examination, and whether any of them are trans women.

Johann Lamont, that is, used a Bill designed to benefit victims of sexual abuse to enshrine discrimination against trans women in Scots law, and form a basis for an argument that there is a legal distinction between “gender” and “sex”, so that there could be further discrimination in future.

She does it from a clearly transphobic position. She signed the Labour Transphobes’ Declaration and said at the time

I have fought all my life along with my sisters in the Labour and trade union movement to ensure that women’s voices are heard, that our needs and rights are addressed, to end the inequality women face and to change women’s lives. The progress made by women has come from women organising together and refusing to be silenced. That is as necessary now as it ever was.

To characterise demands to exclude trans women as “addressing women’s needs” is deeply transphobic.

When the amendment went before Parliament, there was a disgustingly transphobic article in The Scotsman. The delusional transphobe hack who wrote it claimed that “women are fighting for the very right to exist”. That’s paranoid. She wrote, “Women and girls the world over are mutilated and murdered because of their sex, not because of gender stereotypes such as lipstick and high-heels”. Trans women are assaulted and murdered because we are trans women. She diminishes our very nature to the fetishist whim of wearing high heels. She sets cis women against trans women. It is one of the most transphobic rants I have seen. She quotes Lamont saying,

Women should be able to choose the sex of the person who conducts the investigation. This is a key test for the Parliament, which is committed to rooting action in the understanding of experience. Women courageously and powerfully spoke up so that others might fare better than them. The amendment is tiny but would be a huge step in listening to survivors. The committee was convinced. The Parliament should be too.

“Listening to survivors” means excluding trans women. Speaking up courageously means demanding that trans women be excluded. It is a horrifying paean in praise of hate.

I am not sure whether a trans woman should heed the desire of such a victim to have a cis woman examiner. It may just be my internalised transphobia suggesting that could possibly be reasonable, that the trans woman should stand aside. But, unquestionably, the motive for the amendment is transphobic hate. Transphobic hate now has an entrée into Scots law.

Can tweeting be a crime?

As a trans woman, you may be a public figure without realising it.

Kate Scottow was found guilty of a criminal offence for defaming Stephanie Hayden on Twitter, but won her appeal. The prosecutor and Scottow agreed that Hayden was a “public figure”, simply because she tweets her opinions. The judge said “such a person has ‘inevitably and knowingly laid themselves open to close scrutiny of their every word and deed’, and others can expect them to be more robust and tolerant accordingly” of comment or abuse. The comments of a public figure about court action are matters of public interest, and people may weigh in to a public conversation about it.

So I am probably a public figure because of this blog. You may be, if you have a twitter account, or have ever posted a tiktok video.

There are various possible offences if you tweet nastily.

Sending indecent, threatening or false tweets with the intention of causing distress or anxiety to the recipient is an offence.

Harassment is an offence, but just causing alarm or distress is not enough: it must be “oppressive and unacceptable”. This does not depend on the victim’s feelings, but the judge’s supposed objectivity.

Persistently tweeting for the purpose of causing annoyance, inconvenience or needless anxiety to another is an offence. The judge said, surely Parliament did not mean mere annoyance, inconvenience or anxiety. This is so bizarre that I have to quote the exact words used.

The Communications Act 2003 s 127(2)(c) says “A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—… (c) persistently makes use of a public electronic communications network.”

But the judge said, “It is clear, in my judgment, that these provisions were not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient in nature, or such as to cause anxiety for which there is no need.” He says they have to be persistent, and for the purpose of causing annoyance, inconvenience or anxiety, para 29, and later in para 32 he says they must have no other purpose.

All these are subject to the right to freedom of expression, which includes freedom to hold opinions and to receive and impart information and ideas. States can restrict that right if it is necessary to do so for particular purposes including protecting the rights of others.

So it is always a balance.

The Magistrate’s court found Scottow guilty of persistently tweeting for the purpose of causing annoyance, inconvenience or needless anxiety, but they faced an additional hurdle, a six months’ time limit. There were tweets less than six months before, and tweets more than six months before which could only be considered if they were a single course of action.

The police and the district judge thought the tweets were bad enough to be criminal. The appellant judge disagreed.

The judgment quotes the offensive tweets. There is misgendering: “he is a very sick individual I’ve evidence of that”. I don’t like Scottow calling Ms Hayden “sick”, but that was more than six months before, so not relevant. Also more than six months before, “I have many leads on the claimant”, which is threatening. Hayden got an injunction against Scottow, and Scottow used a new Twitter account to abuse the injunction.

The judge says the older tweets are defamatory or insulting.

It may be possible for abusive tweets to be criminal. Violent threats may be. Prosecutors may not think them serious enough to take action.

If you tweet, and someone tweets nastily at you, block them. After the appeal judgment, the courts may just not get involved. This is the judgment.

Hate crime against trans people in England

Hate crime against trans people is rampant and rocketing in England and Wales.

In 2011/12, the police recorded 313 hate crimes against trans people, but in 2018/19, they recorded 2,333. From 2012-2014, the Leicester Hate Crime Project researched hate, and interviewed 24 people targeted because they were trans. 21 of them reported verbal abuse, nine regularly, nineteen reported bullying, and fifteen reported violent crime. 36% of the hate crimes had occurred in public. Only 27% of trans victims reported the incident to the police, less than any other group.

The Law Commission has a consultation on hate crime, closing 24 December. I hope trans-excluders will respond, because their delusional rage will reinforce the need for law protecting trans people.

On race and religion, hate crime law is different from on trans. Assault, criminal damage, public order and harassment offences are recorded as separate, aggravated offences. For trans people, the offence is not different, but the penalty is. This is called “enhanced sentencing”, and has applied to trans people since 2012.

Because a hate crime against a trans person is the same offence as the same crime not motivated by hate, the same maximum sentences apply. The hate is merely one aggravating factor, leading to a longer sentence. This means to me that hate crime against trans people is treated less seriously than hate motivated by religion or race. The maximum sentences for hate against Black people are greater than the maximum sentences for hate against trans people.

If the charge is murder motivated by hate based on race, religion, sexual orientation, disability or transgender identity, the starting point for determining the minimum term is 30 years. This can double the minimum term.

Hate crime can have a greater emotional effect on victims, because we are singled out for something we cannot control. It is more likely to cause a loss of confidence, or anxiety, than non-hate crime. It may make people change our behaviour. It affects others in the community, who feel they could have been victimised too. It damages social cohesion and divides communities.

That the crime is more serious justifies a harsher punishment, whether it is for deterrence, to show victims we are valued by society, or a punishment viewed as fitting the crime.

In Northern Ireland, the definition of hate crime is broadly similar to England’s, but hate of trans people is not included. In Scotland, the definition of trans people is different, and there is a new Bill to change it again.

The police define hate crime, for the purpose of recording how hate motivates crime, differently to the law. It also has a specifically different definition for transgender. It was agreed in 2007, before hate crime against trans people was recognised by enhanced sentencing.

The police say hate crime is “Any criminal offence which is perceived by the victim or any other person, to be motivated by hostility or prejudice based on” the characteristic or perceived characteristic. But for trans, it is any crime “motivated by hostility or prejudice”. For race, etc, the police look at the perception of victim or witnesses, but for trans people the actual hostility of the offender. When this definition was produced, hate crime law had not been extended to trans people, but the definition was not changed when hate against trans people was made illegal.

The police also record “hate incidents”, where the offender’s actions do not amount to a crime, but the actions appear to demonstrate hatred of a characteristic.

On race, religion and sexual orientation, but not trans or disability, there is an offence of “stirring up hatred”. The police have a power of immediate arrest, in private or public places, and it is sufficient if either the offender wishes to stir up hatred or hatred is likely to be stirred up. If that offence were extended to trans people, WPUK meetings might be criminal.

What is transgender? The Criminal Justice Act says that “references to being transgender include references to being transsexual, or undergoing, proposing to undergo or having undergone a process or part of a process of gender reassignment”. That means, being TS or intending to transition definitely counts, but because of the word “includes” other ways of being trans- thinking about transition but not yet committed to it, and, arguably, nonbinary or cross-dressing would count, as those are included in the ordinary meaning of the word “transgender”.

However the Law Commission in their paper misinterpret this wide, inclusive definition. At page 11 they say “gender reassignment surgery” rather than “a process of gender reassignment”, which means any change to gender presentation. If they make that mistake, they won’t be the only ones.

The Law Commission consulted in 2014, and people criticised the definition. Now, the Law Commission consider the definition should emphasise the identity and personhood of the individual- do you think you are trans? Do you think your gender is other than that assigned at birth?- but also, if the offender presumes the person to be trans.

The Hate Crime and Public Order (Scotland) Bill includes: female to male transgender people, male to female transgender people, nonbinary people and people who cross-dress. It has a separate characteristic for intersex people.

The Law Commission wants the language to be inclusive. They think the reason to make a crime more serious, or punishment harsher, is to condemn hostility and prejudice towards nonconformity with gender stereotypes.

So, I would make the category trans or gender nonconforming, to include people who do not fit gender stereotypes and indicate that by dress and behaviour.

The consultation paper, and information on responding, is here.
You can respond here. There are 62 questions, but you don’t have to answer them all, and could have a go at question 8, which is the most relevant to trans people:

Consultation Question 8.
11.89 We provisionally propose that the current definition of “transgender” in hate crime laws be revised to include:
• People who are or are presumed to be transgender
• People who are or are presumed to be non-binary
• People who cross dress (or are presumed to cross dress); and
• People who are or are presumed to be intersex
11.90 We further propose that this category should be given a broader title than simply “transgender”, and suggest “transgender, non-binary or intersex” as a possible alternative.
11.91 Do consultees agree?
11.92 We welcome further input from consultees on the form such a revised definition should take.

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