What's wrong with the UK ruling that trans women aren’t women in the Equality Act?
an explainer
The UK Supreme Court has handed down its decision. For the purposes of the Equality Act 2010, the legal definition of a woman now excludes trans people. The court defined sex as “biological sex” - meaning sex assigned at birth. The ruling has imposed severe restrictions on trans rights in the UK.
What’s the impact of the ruling on trans women?
This ruling means trans women no longer have equal pay protection. Also, trans people can be excluded from all single-sex spaces in any situation. To illustrate its impact, let’s imagine a day in the life of a British trans woman.
Jennifer arrives at a job for which she’s underpaid. She’s greeted by her colleague: a man who’s being paid twice as much as her to do the same job. Thanks to the Supreme Court, she’s no longer entitled to bring an equal pay claim to remedy this.
It’s midday and she needs the toilet. Despite living as a woman for decades, she’s now obliged to use the mens. She’s tempted to use the gender-neutral toilets at a nearby coffee shop. But that will take half-an-hour out of her day, and wages out of her pocket. She decides to brave it.
A male colleague confronts her as she’s washing her hands:
What are you doing in here?
She’s forced to out herself as trans. She can feel the eyes of her colleagues on her for the rest of the day. She walks into a meeting room; everybody stops talking and looks sheepish. One of her colleagues stifles a laugh.
Jennifer leaves the office at 6pm. She’d usually attend a support group for sexual assault survivors this evening. The man who chased her down a dark street didn’t think to check her chromosomes before shouting sexual suggestions. Nonetheless, the Supreme Court reckon they’re grounds to exclude her from the group.
Instead of giving and receiving support, she walks home alone. She passes a newsagent's and the front cover of The Daily Telegraph catches her eye. “Trans women are not women”, it bellows. The Supreme Court insisted in their ruling that:
It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the Equality Act 2010.
Nonetheless, this is what they’ve wrought.
How did the court reach this decision?
As you can see, this decision is terrible for trans people. Let’s examine how the court reached such a damaging conclusion.
By barring trans people from giving evidence
The judgment cited extensively from so-called “gender critical” campaigners. By contrast, the court did not allow a single trans person to speak. An academic and a former judge, both trans, applied to speak before the court. But, without explaining why, the court flatly refused them.
Regular Possibility Space readers will spot a parallel with The Cass Review (the document that the British government is using to justify curtailing transgender healthcare). Cass specifically excluded “subject matter experts and people with lived experience of gender services” from her review’s governance committee. This makes about as much sense as picking a rookie pilot because all of the seasoned captains displayed a suspicious bias towards altitude. In both cases what we’re seeing is ignorance by choice.
By relying on a narrow and conservative definition of “sex“
In the public domain “sex” and “gender” are discrete concepts. In the legal domain however, there’s no distinction. For the purposes of the court these two words mean the same thing. Many of the problems with this judgement stem from that flattening of language. The law fail to capture the lived reality of trans, non-binary and intersex people.
For example, the court offers a simple definition of “biological sex” - “the sex of a person at birth”. This means what’s initially recorded on one’s birth certificate. Sex is notoriously difficult to define. This is because the components of biology considered to constitute it sometimes conflict. So, assigning sex at birth is more about paperwork and assumption than real biology. This didn’t trouble the court.
Conflating sex and gender causes the court to misattribute misogyny to women’s “shared biology”. This shifts the focus away from the real problem: women’s shared oppression under patriarchy. It obscures the reality that trans women experience misogynistic discrimination as much as, if not more than, many other women.
By downplaying the impact of the ruling
The court insists in its judgment and public statements that trans people will not be disadvantaged by its decision. This does not appear to be accurate.
Trans women can’t file equal pay claims against male colleagues anymore. Research shows they earn much less than men, and less even than their cisgender female colleagues. The court justified this on the basis that some trans men, being “biologically female”, may now bring equal pay claims citing male colleagues instead. Regarding equal pay protections the court said:
a biological definition of sex would transfer this right from some trans women to some trans men. We do not see this difficulty as compelling a different conclusion in these circumstances.
There are a few problems with this. A “transfer” of rights, by definition, harms the people losing those rights. The court tacitly admit this by referring to the transfer as a “difficulty”.
Secondly, as anyone who knows about the gender pay gap will tell you, the problem is very rarely that men are paid less than women. Being able to claim on that basis is not, in practice, an equivalent right to being able to claim that you’re being paid less than a man.
The court says similar things about sports. But the reality is that all trans women are now automatically blanket-banned from women’s sport. Trans men are similarly blanket-banned from men-only sport. The public body responsible for implementing the ruling has suggested that trans people should seek out some undefined “third space” to use instead. Notably they have not offered to advocate for suitable facilities for trans people, instead suggesting that trans people take on this brutal task themselves.
The reality of this ruling is that trans peoples rights have been reduced: both in theory and in practice.
What are critics saying about the decision?
This judgement is, by its authors’ own admission, an act of “statutory interpretation”. Many lawyers, legal researchers, former High and Supreme Court judges, and a former civil servant involved in drafting the Act, find the court’s interpretation unconvincing. Here’s why:
If Parliament intended to exclude trans people, why didn’t they use the provision they put in place to do that?
Section 9.3 of the Gender Recognition Act contains a loophole. It says that, if Parliament wants to, it can exclude the effect of the Act from any piece of legislation. The Equality Act 2010 was written after the Gender Recognition Act 2004 (the clue’s in the name), but it does not invoke section 9.3.
Despite this, the Supreme Court believes that Parliament intended to keep trans women out of the Equality Act’s definition of "woman."
The court said we must understand men and women as defined by their biology to decide if someone has faced discrimination due to pregnancy or sexual orientation. Therefore, it stated that understanding “sex” as “biological sex” was the right way to interpret the Equality Act overall. This leads to some pretty wacky conclusions like…
Denying the existence of trans lesbians
The Court concluded that a lesbian “must be a female who is sexually oriented towards (or attracted to) females”. Trans women, they say, cannot be lesbians because that would make the “concept of sexual orientation” meaningless.
The Court also argues that acknowledging the existence of trans lesbians would lead to an “inevitable loss of autonomy and dignity for lesbians”. The vast majority of lesbians disagree, but that didn’t trouble the Court.
The judgement does not appear compatible with the European Convention on Human Rights
Some worry that the Supreme Court ruling isn’t compatible with existing European Court of Human Rights rulings. The European Court ruled that placing trans people in an “intermediate zone as not quite one gender or the other”, was a violation of their Article 8 right to “establish details of their identity” and to have such identity respected. This ruling made the British Government, begrudgingly, recognise the gender of trans people through the Gender Recognition Act.
The Supreme Court’s ruling brings back this issue by viewing trans people as having different sexes for different purposes. For example, a trans woman can now be kept out of a woman’s book club because she's a man, and from a men’s book club because she's trans.
This double bind was applauded by the “gender critical” campaign group Sex Matters. Their founder said:
Not being allowed into the mens by rule does not mean you have the right to go into the ladies (and vice versa).
That may seem unfair, but these are life choices people make. If you make extreme efforts to look like a man don't be surprised if you are denied entrance to ladies.
The reason I’m giving column inches to Sex Matters, a transphobic hate group who promote harmful conversion therapies, is that the Supreme Court’s ruling expresses “particular gratitude” to them. The court stated they “gave focus and structure to the argument that “sex”, “man” and “woman” should be given a biological meaning.”
What happens now?
We fight back
The Good Law Project has set up a “fighting fund.” They aim to challenge the Supreme Court’s ruling. Unfortunately it’ll be a long time until we know the outcome. They must exhaust all domestic remedies prior to appealing to the European Court. The wheels of justice turn slowly.
The far-right march on
The wheels of injustice on the other hand? They’re spinning. Transphobes are already using the ruling as a rallying point for further attacks, and the government is supporting them.
The right-wing group Women’s Safety Initiative, for example, have changed their focus from trans people to immigrants:
We’ve won the battle against trans ideology. Now, it’s essential that the gender critical community speaks up about the dangers of mass immigration for women.
They’re wrong. Research show that immigrants are less likely to commit crime than natives. Despite this, the government is backing them by promising to publish a “league table of foreign criminals”.
Elsewhere, Sex Matters are using the ruling as a pretext to curtail trans healthcare.
The entire premise of treatment with puberty blockers for gender dysphoria has fallen away … Passing as the opposite sex ceases to be a desirable goal to present to children when they will never be permitted to use spaces or services for the opposite sex.
They’re wrong as well. Trans people transition for reasons of health and wellbeing, not just recognition. Gender-affirming care is known to improves outcomes and saves lives. Trans people won’t stop being trans because Sex Matters has decided to make their lives difficult.
Their shocking statement admits that, although they claim to “protect everybody’s rights,” their true aim is to push trans people out of public life. Despite this, the government is backing them by curtailing trans healthcare.
Even the Prime Minister himself is getting in on the action, declaring that trans women are not women. This is simply wrong in law. The Supreme Court ruled that, for the Equality Act, sex should be defined “biologically.” However, the Gender Recognition Act still applies in most situations. Barrister Oscar Davies called Starmer’s remarks “disappointing from a former human rights lawyer”. My description of Starmer’s remarks is not fit to print in a family newspaper.
Trans people wait to see how much their rights have been reduced
Supreme Court rulings don’t change things immediately. First, we need to turn them into guidance for stakeholders, such as employers, service providers, and business owners. Stakeholders then modify their policies in response.
The Equality and Human Rights Commission (EHRC) handles issuing this guidance. But it’s seriously undermined by the fact that its commissioners are political appointees. Liz Truss, for example, bragged that her appointees would counteract “groupthink” and “virtue signalling” – both familiar right-wing talking points.
What this means is that trans people don’t just suffer a psychological blow on the day of the Supreme Court ruling. They suffer blow after blow, day in, day out, as the public realm is remade into an even more hostile environment. They wake, exhausted, to face headlines like:
Many questions remain unanswered
Outside of the impact on the trans community, there are other practical concerns. Simple questions linger: Can a father still take his daughter to the women’s toilet? Or a mother take her son in with her?
Increased policing of bathrooms to check “biological sex” has a big impact. It disproportionately affects people like butch lesbians, whose looks are seen as not feminine enough.
Stakeholders reckon with unworkable and unsafe guidance
Confusion reigns among politicians and policymakers, while service providers adopt conflicting approaches.
For example, the EHRC says that:
Where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided.
However, this advice goes against government policy. They recently introduced building regulations to:
Halt the march of gender-neutral toilets in buildings
It’s a mess. Both parties seem determined to drive trans people out of public life, but they can’t agree on how.
Business owners are frustrated by the mixed messages. They are also upset about being asked to spend millions to change their premises for what they see as a “political issue that came out of nowhere.”
What can we do to support the trans community?
We can — and must — protect the rights of all vulnerable groups without turning them against one another. Here’s how:
Make clear that no one is required to exclude trans people. The law now says that you can, but there’s no obligation to do so.
Support the Good Law Project’s “fighting fund”. They are committed to appealing this ruling at the European Court of Human Rights.
Write to your MP. Ask that they give careful thought to how they want the Equality Act to operate in practice. This means:
Properly scrutinising the EHRC’s guidance, which is due this summer.
Asking why we allow political appointees to the EHRC in the first place.
Pressuring the government to keep their manifesto promise to:
Modernise, simplify, and reform the intrusive and outdated gender recognition law to a new process. Remove indignities for trans people who deserve recognition and acceptance.
Consulting with the trans community.
Drafting a public statement to reassure the many scared trans people in our country.
The Labour Party has a huge majority in Parliament. So, what happens to trans people will be up to them. We won’t allow them to hide behind court rulings. They are the ones who make the laws that the courts interpret. The buck stops with them.
Some Labour MPs are sticking up for their trans constituents. Others are mocking them and demanding that we pull out of the European Convention on Human Rights. Most are silent on the issue. Find out where your MP stands and if it’s not with you, withhold your vote.
Acknowledgments
If you are trans and are reading this, I want you to know that I love you and so do all my friends. The people who brought this case to the Supreme Court do not want you to exist, but the joke’s on them. Trans people have always existed and they have survived far worse than this.
This article would not exist without trans people. It’s particularly indebted to Jess O'Thomson, whose tireless reporting on this subject is a triumph of reality over mystification.
If you’ve been clicking through the citations in this article then you’ve already read their work. If you want more from Jess on this topic, you can catch the on The Take podcast or on the TRASHFUTURE podcast. You can buy Jess a coffee here.