The recent Supreme Court decision about the use of the word ‘woman’ in the Equality Act 2010, and its interpretation by the EHRC and other public bodies, has had an immediate and damaging impact on trans women, trans men and those who identify as non-binary.
Many trans women report being frightened by the implications of a decision which some commentators suggest may lead them to being forced into male spaces such as men’s toilets and changing rooms, where they would feel vulnerable and unsafe.
Their fear is justified: the biggest threat to all women’s safety is violent men. 92% of murders, 97% of domestic homicides, and 98% of rapes are committed by men.
Trans women are being made scapegoats when they are in fact most likely to be victims of men’s violence.
The Equality Party stands with trans women, trans men and non-binary people, and asserts the right of everyone to determine their own gender and pronouns and live free from violence and exclusion.
The Supreme Court decision has not ‘clarified’ anything but has added further confusion and conflict to the legal position of trans people.
What was the Supreme Court Decision and why is it wrong?
The Supreme Court judges ruled that when the term ‘woman’ is used in the Equality Act 2010, it means a biological woman, and ‘sex’ means biological sex. It also makes it clear that if a space or service is designated as women-only, a trans woman i.e. a person who was born male but identifies as a woman, does not have a right to use that space or service.
This is wrong on several counts.
First, the Gender Recognition Act 2004 is clear that anyone with a Gender Recognition Certificate (GRC) has legal recognition as a member of the sex appropriate to their gender identity. Those whose birth was registered in the UK are able to obtain a birth certificate showing their recognised legal sex.
In other words, a trans woman is legally a woman and a trans man is legally a man, according to the GRA. The GRA is still in force, and the Equality Act 2010 did not repeal or amend it.
Therefore to interpret the word ‘woman’ in the EA as meaning ‘biological’ or ‘born’ woman and exclude trans women, is manifestly incorrect and contradicts the GRA.
Second, biological sex is not binary, it is a spectrum. The resident doctors’ wing of the BMA said that a binary divide between sex and gender ‘has no basis in science or medicine while being actively harmful to transgender and gender-diverse people’, and called the ruling ‘scientifically illiterate’.
One of the principal authors of the EA2010, ex-civil servant Melanie Field, has pointed out that the definition of ‘woman’ in the Act conforms to the legal definition of a woman, which includes trans women:
“Having led the development and passage of the Equality Act 2010 (EA), I know that the policy and legal instructions underlying its drafting were based on the clear premise that, for a person with a Gender Recognition Certificate (GRC), their “sex” for the purposes of the EA is that recorded on their GRC. This position, as it relates to sex discrimination law, was set out clearly in the explanatory notes to the Gender Recognition Act 2004 (GRA) – the Equality Act did not seek or purport to change that approach.”
So according to the author of the EA2010, the Supreme Court has got it wrong.
How could the Supreme Court judges have got it so wrong?
The British public is becoming more anti-trans people, not as a result of any evidence, but due to a powerful and well-funded anti-trans lobby.
The only way to remove our human bias is to include diverse viewpoints when making judgements such as this. Yet the Supreme Court excluded trans people from their deliberations.
Trans groups and individuals (including judges) offered to take part and were not permitted to. Instead, the principal voices that were heard were those of gender critical groups like For Women Scotland.
What are the implications?
The Equality and Human Rights Commission (EHRC) is Chaired by Baroness Falkner of Margravine, who has been associated with the gender-critical lobby group Sex Matters.
Lady Falkner has now promised new statutory guidance that “will be the law of the land, it will be interpreted by courts as the law of the land.” She said on BBC Radio 4 Today that the court’s judgement meant that only biological women could use single-sex changing rooms and women’s toilets or participate in women-only sporting events and teams, or be placed in women’s wards in hospitals.
This ruling and the EHRC response does not clarify or simplify, it causes confusion and raises many distressing and disturbing questions:
- Will people who have lived as women for decades now have to ‘out’ themselves as trans women and use men’s facilities, placing themselves at risk of men’s violence?
- How will such things be enforced?
- Some cis people may have atypical gender characteristics – will ‘feminine’ men be challenged in the gents, or ‘masculine’ women in the ladies? Who will challenge them?
- Are we going to look at people genitals to decide what facilities they use?
- Will employers, educational establishments and health settings now start ‘outing’ trans people?
This decision has implications beyond forcing trans people into the ‘wrong’ spaces. Does it mean, for example, that a lesbian married to a trans woman is now heterosexual, and therefore not protected from hate crime by the Equality Act?
This ruling opens the way for more discrimination and erosion of rights, furthermore it risks contradictions within the Equality Act itself.
Why is this happening?
The Equality Party believes that these anti-trans actions are straight from the playbook of the far-right. They are funded and supported by far-right patriarchal organisations and structures, supported by right-wing transphobic media.
We believe this is therefore the thin edge of an alarming wedge, the beginning of the roll-back of human rights on a much bigger scale.
If women are defined based on reproductive organs alone, then it is only a short step to viewing them just as child bearers and removing abortion rights, reproductive choice and employment rights.
Some people have been quoting the famous anti-Holocaust poem ‘First They Came’, and we can see why – once we permit the removal of rights from one group, even if they are less than 0.5% of the population, everyone’s rights are at risk.
What is the Solution?
The Equality Party calls for the law to be updated. As a result of this ruling, some provisions of the GRA (that a GRC changes legal sex for all purposes) is in conflict with the Equality Act (that sex is only ‘biological sex’). Only new legislation can resolve this.
The law must be written to make it clear that trans people are protected and entitled to live 100% in their acquired gender, protected by both trans and sex discrimination.
Other protections based on sex, pregnancy, race, disability and other characteristics must remain, and the law must make clear that the rights of trans people do not affect or conflict with other rights, removing all ambiguity.
There should be no exceptions. Providers of ‘safe spaces’ must run a risk assessment on every individual that enters in any case, and have the right to exclude anyone they believe to be a risk to others.
In addition, the law must recognise intersex, genderfluid and non-binary people. At the moment they do not exist in law, and this must be corrected. It is simply not true that people only have XX or XY chromosomes, and that these chromosomes are always expressed by physical characteristics. People with a Y chromosome have been pregnant. Studies show up to 1% of people have ‘intersex’ characteristics (physical signs of ‘both’ sexes). The numbers affected are small, but it is a fact that biologically, sex is not binary, and the law must reflect that, if it is to include all people.
The Equality Party calls on lawmakers to engage with and listen to stakeholders with all characteristics, including trans and non-binary people, so that the debate and resulting new law are fully inclusive.
Leader’s Comment
Kay Wesley spoke about the ruling and the EHRC’s proposed guidance on BBC Radio – listen here:
References:
British public getting more transphobic:
Melanie Field Post on LinkedIn:
Sex Redefined: The Idea of 2 Sexes Is Overly Simplistic (Biologists now think there is a larger spectrum than just binary female and male):
Baroness Falkner defends gender-critical views:
EHRC ‘overreaching’ after judgement:
Baroness Falkner on BBC Radio 4 Today speaking of new guidance: https://youtu.be/jaR0tbIGe0E
The Equality Party 