transponderings

I dust down my long-neglected blog to release some of my pent-up rage over recent events, in particular the UK Supreme Court’s ruling last week (PDF document) in favour of anti-trans group For Women Scotland, in which some cis people decreed (without hearing any representation from trans people) that ‘sex’ in the Equality Act 2010 means ‘biological sex’ (by which they mean sex assigned at birth), and that trans women are therefore men, and trans men, women (and non-binary people, who knows?).

Kishwer Falkner, House of Lords cross-bencher and chair of the Equality and Human Rights Commission, has latched onto the court’s ruling with unseemly glee and promised some new guidelines on compliance with the law by the summer of 2025. But she couldn’t actually wait that long to put the boot in. The EHRC have just, in the closing hours of Friday 25 April (!), sneaked out an interim update on the practical implications of the ruling.

Perhaps unsurprisingly, but nonetheless horrifically, the update entrenches the most unenlightened reading of the Supreme Court’s so-called ‘clarification’ of the law:

The Supreme Court ruled that in the Equality Act 2010 (the Act), ‘sex’ means biological sex.

This means that, under the Act:

• A ‘woman’ is a biological woman or girl (a person born female)
• A ‘man’ is a biological man or boy (a person born male) 

So far, so awful – this appears to be what the Supreme Court decided. But it remains an affront to the dignity of trans men and women, as well as completely overlooking non-binary people and the million or more people in the UK who are intersex, the vast majority of whom will have been coercively assigned male or female at birth.

If somebody identifies as trans, they do not change sex for the purposes of the Act, even if they have a Gender Recognition Certificate (GRC).

• A trans woman is a biological man
• A trans man is a biological woman

For the avoidance of doubt, regardless of what the court says: trans women are women, trans men are men, non-binary people are valid, and intersex people are whatever they say they are. Don’t let anyone else tell you otherwise!

Now we come to the Victorian prudery of gender-critical ‘feminists’ when it comes to toilets and changing rooms. (The patriarchy thanks you for your support!)

In workplaces and services that are open to the public:

• trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities, as this will mean that they are no longer single-sex facilities and must be open to all users of the opposite sex
• in some circumstances the law also allows trans women (biological men) not to be permitted to use the men’s facilities, and trans men (biological woman) not to be permitted to use the women’s facilities
• however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use
• where possible, mixed-sex toilet, washing or changing facilities in addition to sufficient single-sex facilities should be provided
• where toilet, washing or changing facilities are in lockable rooms (not cubicles) which are intended for the use of one person at a time, they can be used by either women or men

So the EHRC say women like me should no longer be permitted to use women’s toilets and changing rooms. Moreover, in some circumstances, we may not be permitted to use men’s toilets and changing rooms either (not that I’d ever want to). In such cases, however, an additional mixed-sex facility should also be offered. I really can’t understand how people can get so worked up about this!

The EHRC also stipulates who should use which toilets and changing rooms in schools. I can’t imagine that this would cause any problems for already vulnerable trans kids (/s):

Pupils who identify as trans girls (biological boys) should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys (biological girls) should not be permitted to use the boys’ toilet or changing facilities. Suitable alternative provisions may be required.

They don’t ‘identify as’ trans, by the way. They are trans! And needless to say, but it’s worth reiterating: trans girls are girls, and trans boys are boys! This guidance is unbelievably concerning. I dread to think what it must be like to be trans at school right now.

Finally, moving from toilet policing – which is obviously fraught with practical difficulties – to the equally problematic policing of sexual orientations (why?):

Membership of an association of 25 or more people can be limited to men only or women only and can be limited to people who each have two protected characteristics. It can be, for example, for gay men only or lesbian women only. A women-only or lesbian-only association should not admit trans women (biological men), and a men-only or gay men-only association should not admit trans men (biological women).

I have never considered becoming a member of a women-only or lesbian-only association, despite being both a woman and a lesbian. From now on, though, the EHRC say that I should not be admitted to such an association. They don’t say whether I would be permitted to join a men-only association – though again I wouldn’t ever want to!

I have been to lesbian-only gatherings in the past – and I’m quite sure Kishwer and co would love to exclude me from them. I also wonder what they think of an organisation like SWAN – the Scottish Women’s Autistic Network – whose events I regularly frequent. (Their events are open to all women and non-binary people!)

Needless to say, I will be continuing to use the same single-sex facilities I’ve used for the past eight years. And I hope that most trans people will do likewise rather than being hounded out of public spaces altogether. If enough of us resist, and most cis people see the idiocy of the guidance, it will be unenforceable, and For Women Scotland’s victory will be seen to be hollow.

For more commentary on the Supreme Court ruling itself, I strongly recommend Katherine Alejandra Cross’s article, The Potemkin feminism of ‘sex-based rights’.