The UK Supreme Court destroys 20 years of legal rights for trans people in 20 minutes...
..svg.png)
In Britain, run by a Labour government populated by duplicitous snakes, the mood music may differ, but we're about to be looking at a level of discrimination against trans people that maybe even Trump hasn't managed.
.svg.png){kind=icon}
So, it's happened. The moment I have written about here and here and in countless other places. The event that I have been trying to tell anyone who would listen - cisgender or trans (though God knows the latter haven't been short of doom laden predictions to tick off one by one like some kind of Advent calendar from Hell).
The UK Supreme Court published a ruling yesterday in what should have been an arcane case launched by some trans-hating Scottish activists (For Women Scotland - FWS), who objected to the Scottish government allowing the definition of those classed as women to include trans women when they were inviting applications for the Boards of public bodies, but which turned into a Landmark Legal Moment. A moment in which the Court gave its view of what a woman legally is.
And some moment it was. Front pages held. Shaping pieces written by hostile papers beforehand. The FWS case - which had failed in two lower courts previously but had been funded by a big injection of JK Rowling's money - was regarded by many 'civilian' Equalities lawyers as completely unarguable. Which is lawyer-speak for junk. The clever money was on The Supreme Court - the top echelon of a deeply transphobic British judiciary - having little choice but to throw out their case but likely to wrap the decision in several hundred paragraphs of regret and commentary about how the law needed changing so that next time an outfit like FWS would win. This would have given the 'Gender Criticals' the moral victory that they felt was probably the best they could expect, plus the front pages of the savagely right-wing British press and some leverage on a spineless, transphobic government to force them to legislate.
But that didn't happen. FWS won. They won 5-0. They couldn't have won bigger. They won with a judgment that said they - and all the other anti-trans groups who were asked to participate - were right about everything. The centrepiece of all this was the Court's decision to state that sex - as per the UK's Equality Act (and specifically that - this is an important detail) - is defined in biological terms. Effectively that means what's written on your original birth certificate as a result of an examination of your genitals in the first 10 seconds of your life. End of.
The UK Supreme Court published a ruling yesterday in what should have been an arcane case launched by some trans-hating Scottish activists (For Women Scotland - FWS), who objected to the Scottish government allowing the definition of those classed as women to include trans women when they were inviting applications for the Boards of public bodies, but which turned into a Landmark Legal Moment. A moment in which the Court gave its view of what a woman legally is.
And some moment it was. Front pages held. Shaping pieces written by hostile papers beforehand. The FWS case - which had failed in two lower courts previously but had been funded by a big injection of JK Rowling's money - was regarded by many 'civilian' Equalities lawyers as completely unarguable. Which is lawyer-speak for junk. The clever money was on The Supreme Court - the top echelon of a deeply transphobic British judiciary - having little choice but to throw out their case but likely to wrap the decision in several hundred paragraphs of regret and commentary about how the law needed changing so that next time an outfit like FWS would win. This would have given the 'Gender Criticals' the moral victory that they felt was probably the best they could expect, plus the front pages of the savagely right-wing British press and some leverage on a spineless, transphobic government to force them to legislate.
But that didn't happen. FWS won. They won 5-0. They couldn't have won bigger. They won with a judgment that said they - and all the other anti-trans groups who were asked to participate - were right about everything. The centrepiece of all this was the Court's decision to state that sex - as per the UK's Equality Act (and specifically that - this is an important detail) - is defined in biological terms. Effectively that means what's written on your original birth certificate as a result of an examination of your genitals in the first 10 seconds of your life. End of.
And actually, very possibly the end of trans rights in the UK. Or so every newspaper in the country would have everyone believe. The final rout of The Trans Menace. Victory laps everywhere, front pages, hate articles, jubilation, champagne outside The Supreme Court. The Equality and Human Rights Commission, a nasty little quango that was staffed up with a full complement of anti-trans hardliners by the last grotesque Tory government, was first out of the blocks with its follow up, saying that they'd be taking NHS hospitals to court from now if they tried to put a trans woman into a women's ward. A place where trans women have been treated, without incident (and there are over a hundred Freedom of Information requests not long ago to prove that), for at least 50 years - until yesterday. The odious and gleeful head of the EHRC continued that a complete ban of trans women from women's toilets and changing rooms in British society was on the way, hinting ominously also that a review of gender ID change per se was in the pipeline. To the question of where trans women are supposed to urinate now, she replied that 'maybe trans activists should campaign for a third space?' That's the head of Britain's Equality body removing a minority from society and sneering at us. It's not even that she doesn't care. She's loving it.
And seriously, who does care? Who has shown that they care? Acted to help us?
We feel completely cut adrift.
Today, as the commentariat filled column inches with endless dire predictions of the forthcoming total exclusion of trans people from aspects of society, by law, the British Transport Police (BTP) became the first body to get themselves in the papers by announcing that any trans woman they arrest will now be strip searched by a male officer. Because, you know, it's official; trans women who were, and lived as, women on Tuesday have been discovered to be lying all along. They are men. Male officers will be detailed to strip search trans women who have vaginas and breasts. Trans women who have lived as women for decades, are treated as women, who work as women, love as women, have been accepted by friends, colleagues and family as women. And this in spite of the fact that the reckless, confusing and brutal Supreme Court ruling, the actual interpretation of which has left lawyers baffled, explicitly did not speak to the definition of sex as per legislation that would cover the BTP's actions when dealing with someone they have detained. These actions are covered by The European Convention on Human Rights, The Human Rights Act, and the Police and Criminal Evidence Act (PACE). In each of these, trans women remain women - legally. The Supreme Court specifically ruled that trans women are men in the context of the Equality Act.
Yes that's what's happened. Trans women are women in some parts of the UK's legal code and men in others now it seems. Naturally, this nuance has passed the salivating haters by. It's open season on us from them; be they ideological, political or religious, they are queuing up to apply the Court's ruling to everything. And they know they'll get away with it. Court cases to try and stop them will take time, money and staggering bravery as any trans woman who tries it is guaranteed to be monstered relentlessly by newspapers and in social media only to likely find that the locked-in power of the judiciary will bend the law to hurt them. Ten years of media hate have done that to public and legal profession alike (just counting four of the major British national newspapers there were 1075 articles about trans people in the year to April 13th, the vast majority negative, often purposefully inaccurate and with almost zero participation from trans people themselves).
This ludicrous and for us stunningly dangerous legal situation has happened because The UK Supreme Court, in its enthusiasm to pander to the prejudices of those who pathologically hate trans women, has produced a legal mess. Its ruling is no more than an extended GC Greatest Hits – 88 pages of their talking points, their language, their prejudice, given a coat of legal varnish and entirely unchallenged. It contains legal inaccuracies aplenty – there’s even one that would have received a circle in red pen around it from an undergraduate law tutor on page 1 in paragraph 1 (about The Sex Discrimination Act). Critically, it contains no insight into the implications of its decision, the consequences for the tiny minority whose lives it so casually upended, nor the many, many scenarios in which its simplistic and often offensive take on our lives would not just be humiliating and cruel for us, but completely unworkable or covered by other areas of law about which it said nothing.
It could barely be anything else. The Court invited five anti-trans organisations to submit evidence while refusing permission for any trans person or trans-led group to speak. Consequently, the ruling – produced without any contribution at all from a member of the community it was about to crucify – is legal, moral and ethical garbage.
And yet, because it comes from the highest court in the land, that’s it. There are some circumstances in which a case like this might travel on to the European Court of Human Rights – a venue that right wing politicians in the UK despise and which they have worked hard to leave (joining Russia and Belarus), despite the UK having been central in its creation. But that takes years, and this particular case, for other reasons, won’t get there.
So, again. That’s it.
Twenty years of black letter law destroyed in twenty minutes. Over fifty years of public policy gone too.
For what?
Not to deal with an actual problem, because there isn’t one. Just as there wasn't a problem in the southern US when white people fought tooth and nail to stop a black five year old attending a white school, or to prevent black people using the same restroom as them. Just as there wasn't a problem when Jews were stripped of their dignity, their rights and then their lives in 1930s Germany.
The need for an actual, verifiable problem pales in the face of the opportunity for hate and for prejudice - phenomena which are just so much more durable and exploitable than a tangible, measurable, finite, problem. Prejudice can be shaped, channeled, perpetuated and extended.
Because of this, there is no reasoning with the people who have driven it all, in our country and in others. For years we have tried to be reasonable, tried to explain, without any success. For years we have tried to point out – over and over and over – that the trans community was frightened, subject to violence and abuse, just trying to live our lives in safety. We pulled out data to demonstrate that we represented a threat to wider society certainly no greater than anyone else – the only community that was constantly forced to do this. In response, the haters would find that one case. The case of the trans woman who had broken the law, perhaps committed violence, even sexual violence. And that, they would say – as they might also say (and their forebears often did say) about black people, or Jews, or Muslims – was ‘evidence’ of collective guilt. The reason that one individual had transgressed was because of an innate evil encoded into us and shared by all members of the group; our guilt is simply indelible because we are transgender. Germaine Greer years ago stated that ‘All men are rapists’. Thus also, for her and the generation of anti-trans TERFs who came after and who have furnished the contemporary hate movement with its theories, trans women are merely men who have found a new strategy to invade women’s spaces and hurt them, or even erase them altogether (the ultimate violence) – an objective, they assert, which is held in common, DNA-like, by trans women as a class of people.
The definition of trans women as men by the UK Supreme Court yesterday thus gave these people everything they wanted. Naturally, the Court ignored utterly the reality of how sex is not actually binary in any biological sense at all, or that intersex* people exist in far greater numbers than haters like to admit. The ruling claimed to be rooted in biology but was in fact based on a socially mediated version of sex – the custom in our culture of taking some observable or measurable characteristics, but not others, and grouping them together into two categories, through social convention and human choice (other cultures have made different choices in centuries past; some still do).
So, where does this leave us now? Where does it leave me now?
16 years transitioned. 13 years since I went through demeaning and expensive hoops to ‘prove’ something to the British state that cisgender people never have to prove – that I am the gender, and the sex that I say am (the topic of the complex ingredients of sex and the possibility of it actually changing is not for here, but phenotype versus genotype is important, as is the question of epigenetics). I received my Gender Recognition Certificate (GRC) from my grudging government and had my birth certificate revised. Job done I thought, never conceiving that it would one day be undone. The process of acquiring a GRC was created by an Act of Parliament into which the British government was forced by the European Court of Justice (ECJ), but the Act stated then as now that having acquired a GRC I was legally female ‘for all purposes’. Until yesterday, apparently, when, having left the European Union, and thus finally able to do it, the British establishment got its revenge on the ECJ. And us.
The ruling dropped at 9.55am. Twenty minutes later the deed was done. It felt like a physical assault. I stared shaking - it went on for some time - and feeling sick, like I had been winded by a powerful punch. My breathing seemed to stop. The fear was intense and for a while I could barely speak. As I checked in online with trans friends I found at first just stunned silence, and then read of tears, of utter despair and thoughts of suicide. We all know that people will have taken their own lives or be planning to now. As I write these words those responses are still going on. Along with real fear and real panic.
Last night my partner had a serious anxiety attack and passed out as a heart condition was fired up by surges of cortisol (my partner is ok – medication was found). The Supreme Court did it.
And then, today, the retribution on us by British society for things we have never done began.
I am very frightened.
And seriously, who does care? Who has shown that they care? Acted to help us?
We feel completely cut adrift.
Today, as the commentariat filled column inches with endless dire predictions of the forthcoming total exclusion of trans people from aspects of society, by law, the British Transport Police (BTP) became the first body to get themselves in the papers by announcing that any trans woman they arrest will now be strip searched by a male officer. Because, you know, it's official; trans women who were, and lived as, women on Tuesday have been discovered to be lying all along. They are men. Male officers will be detailed to strip search trans women who have vaginas and breasts. Trans women who have lived as women for decades, are treated as women, who work as women, love as women, have been accepted by friends, colleagues and family as women. And this in spite of the fact that the reckless, confusing and brutal Supreme Court ruling, the actual interpretation of which has left lawyers baffled, explicitly did not speak to the definition of sex as per legislation that would cover the BTP's actions when dealing with someone they have detained. These actions are covered by The European Convention on Human Rights, The Human Rights Act, and the Police and Criminal Evidence Act (PACE). In each of these, trans women remain women - legally. The Supreme Court specifically ruled that trans women are men in the context of the Equality Act.
Yes that's what's happened. Trans women are women in some parts of the UK's legal code and men in others now it seems. Naturally, this nuance has passed the salivating haters by. It's open season on us from them; be they ideological, political or religious, they are queuing up to apply the Court's ruling to everything. And they know they'll get away with it. Court cases to try and stop them will take time, money and staggering bravery as any trans woman who tries it is guaranteed to be monstered relentlessly by newspapers and in social media only to likely find that the locked-in power of the judiciary will bend the law to hurt them. Ten years of media hate have done that to public and legal profession alike (just counting four of the major British national newspapers there were 1075 articles about trans people in the year to April 13th, the vast majority negative, often purposefully inaccurate and with almost zero participation from trans people themselves).
This ludicrous and for us stunningly dangerous legal situation has happened because The UK Supreme Court, in its enthusiasm to pander to the prejudices of those who pathologically hate trans women, has produced a legal mess. Its ruling is no more than an extended GC Greatest Hits – 88 pages of their talking points, their language, their prejudice, given a coat of legal varnish and entirely unchallenged. It contains legal inaccuracies aplenty – there’s even one that would have received a circle in red pen around it from an undergraduate law tutor on page 1 in paragraph 1 (about The Sex Discrimination Act). Critically, it contains no insight into the implications of its decision, the consequences for the tiny minority whose lives it so casually upended, nor the many, many scenarios in which its simplistic and often offensive take on our lives would not just be humiliating and cruel for us, but completely unworkable or covered by other areas of law about which it said nothing.
It could barely be anything else. The Court invited five anti-trans organisations to submit evidence while refusing permission for any trans person or trans-led group to speak. Consequently, the ruling – produced without any contribution at all from a member of the community it was about to crucify – is legal, moral and ethical garbage.
And yet, because it comes from the highest court in the land, that’s it. There are some circumstances in which a case like this might travel on to the European Court of Human Rights – a venue that right wing politicians in the UK despise and which they have worked hard to leave (joining Russia and Belarus), despite the UK having been central in its creation. But that takes years, and this particular case, for other reasons, won’t get there.
So, again. That’s it.
Twenty years of black letter law destroyed in twenty minutes. Over fifty years of public policy gone too.
For what?
Not to deal with an actual problem, because there isn’t one. Just as there wasn't a problem in the southern US when white people fought tooth and nail to stop a black five year old attending a white school, or to prevent black people using the same restroom as them. Just as there wasn't a problem when Jews were stripped of their dignity, their rights and then their lives in 1930s Germany.
The need for an actual, verifiable problem pales in the face of the opportunity for hate and for prejudice - phenomena which are just so much more durable and exploitable than a tangible, measurable, finite, problem. Prejudice can be shaped, channeled, perpetuated and extended.
Because of this, there is no reasoning with the people who have driven it all, in our country and in others. For years we have tried to be reasonable, tried to explain, without any success. For years we have tried to point out – over and over and over – that the trans community was frightened, subject to violence and abuse, just trying to live our lives in safety. We pulled out data to demonstrate that we represented a threat to wider society certainly no greater than anyone else – the only community that was constantly forced to do this. In response, the haters would find that one case. The case of the trans woman who had broken the law, perhaps committed violence, even sexual violence. And that, they would say – as they might also say (and their forebears often did say) about black people, or Jews, or Muslims – was ‘evidence’ of collective guilt. The reason that one individual had transgressed was because of an innate evil encoded into us and shared by all members of the group; our guilt is simply indelible because we are transgender. Germaine Greer years ago stated that ‘All men are rapists’. Thus also, for her and the generation of anti-trans TERFs who came after and who have furnished the contemporary hate movement with its theories, trans women are merely men who have found a new strategy to invade women’s spaces and hurt them, or even erase them altogether (the ultimate violence) – an objective, they assert, which is held in common, DNA-like, by trans women as a class of people.
The definition of trans women as men by the UK Supreme Court yesterday thus gave these people everything they wanted. Naturally, the Court ignored utterly the reality of how sex is not actually binary in any biological sense at all, or that intersex* people exist in far greater numbers than haters like to admit. The ruling claimed to be rooted in biology but was in fact based on a socially mediated version of sex – the custom in our culture of taking some observable or measurable characteristics, but not others, and grouping them together into two categories, through social convention and human choice (other cultures have made different choices in centuries past; some still do).
So, where does this leave us now? Where does it leave me now?
16 years transitioned. 13 years since I went through demeaning and expensive hoops to ‘prove’ something to the British state that cisgender people never have to prove – that I am the gender, and the sex that I say am (the topic of the complex ingredients of sex and the possibility of it actually changing is not for here, but phenotype versus genotype is important, as is the question of epigenetics). I received my Gender Recognition Certificate (GRC) from my grudging government and had my birth certificate revised. Job done I thought, never conceiving that it would one day be undone. The process of acquiring a GRC was created by an Act of Parliament into which the British government was forced by the European Court of Justice (ECJ), but the Act stated then as now that having acquired a GRC I was legally female ‘for all purposes’. Until yesterday, apparently, when, having left the European Union, and thus finally able to do it, the British establishment got its revenge on the ECJ. And us.
The ruling dropped at 9.55am. Twenty minutes later the deed was done. It felt like a physical assault. I stared shaking - it went on for some time - and feeling sick, like I had been winded by a powerful punch. My breathing seemed to stop. The fear was intense and for a while I could barely speak. As I checked in online with trans friends I found at first just stunned silence, and then read of tears, of utter despair and thoughts of suicide. We all know that people will have taken their own lives or be planning to now. As I write these words those responses are still going on. Along with real fear and real panic.
Last night my partner had a serious anxiety attack and passed out as a heart condition was fired up by surges of cortisol (my partner is ok – medication was found). The Supreme Court did it.
And then, today, the retribution on us by British society for things we have never done began.
I am very frightened.
******
FOOTNOTE:
If you can get to London for Saturday April 19th, please, please come and raise your voice with us, our friends and our families:
If you can get to London for Saturday April 19th, please, please come and raise your voice with us, our friends and our families:
URGENT: Join Us in Parliament Square This Saturday 1pm– Stand for Trans Rights
Dear Friends,
We need your support now more than ever.
This Saturday at 1:00 p.m. in Parliament Square, there will be a critical protest in support of trans rights, following the recent Supreme Court decision that threatens the recognition and dignity of trans people across the UK.
Meeting Point: Boadicea and Her Daughters Statue - https://g.co/kgs/pkDwGp3
Trans women are women
Trans men are men
Non-binary people exist and deserve rights too
UNISON branches are supporting this protest, and we are calling on every member, friend, and ally to join us in solidarity. We need a huge turnout to show that we will not stand by while rights are taken from our family.
Please reach out to everyone you know- colleagues, friends, family, union members – and ask them to come along. Bring signs, bring energy, and most importantly, bring your voice.
This is very last minute, so we need everyone to shout about this protest as loudly and widely as possible. Share it with your networks, post it online, tell your friends. let’s make sure no one misses it!!!
SHARE SHARE SHARE!!!
Let’s show up and show out for trans lives.
See you in Parliament Square this Saturday.
********
********
.jpeg)
What to say? As a cis womabn, I'm so grateful for your articulate, first-hand response. My heart goes out to you and your partner (I hope she is really better now). I seems to me there has been a lot of commentary on the sishuls from well-meaning but naive people, saying "this doesn't take away the rights of trans women." But it seems to me that at BEST there is a massive contradiction now between EHRC as it currently stands and this ruling. Both cannot be put into practice in the world --So it seems inevitable that we'll get more and more rulings that blithely ignore the human rights of trans people -- banning them from all over the place, without cause -- even in law. (Already started, BTP)And yes, the law re GRCs will change (for "clarity") and all the remainiing 'rights' will go. I'm bleak. I feel for all trans people and despair.
ReplyDeletePlease correct me if I'm wrong about any of this -- it is hard to keep up sometimes.
Thanks for your support. The EHRC is essentially an anti-trans organisation - appointments were made by the Tory government from 2018 to fill it with Gender Critical voices - including the head of the organisation. And as such they've been working on producing guidance, initially non-statutory but very soon statutory guidance, to the Equality Act that limits the rights of trans women. Mostly unlawful guidance, as has been demonstrated to them - but they have been given their roles for a reason.
ReplyDeleteThere were indications that the next round of Statutory guidance they were about to issue would have tried to ban trans people without a GRC from single and separate sex spaces, thus destroying the lives of somewhere between 260,000-500,000 people (only about 8-9000 trans people in the UK have a GRC). A catastrophe, but the Supreme Court went even further, with its ruling. Even the Gender Recognition Act, which categorically says in 'Section 9 (1) Where a full gender recognition certificate is issued to a person, the person's gender becomes for all purposes the acquired gender' now seems to give no protection. At least that's what the Court has implied - as far as The Equality Act goes. As I say above, there are many situations where other laws have a bearing in which our legal sex or gender is still considered as before. You won't hear that from the media, in their insane rush to insult and bury us.
The ruling is a total mess. And if the Court had listened to ANY trans groups or individuals then it could have understood the reality of our lives - and heard of the many many massive problems that a ruling like the one they have handed down would cause. Plus the knock on effects. Plus how a ruling like this would used, immediately to steamroller the trans community and take almost everything from us. Its privilege and prejudice at it's absolute peak. They didn't invite us - this can only have been deliberate, and the ruling is thus full of GC talking points, inaccuracies, and prejudices. Nothing else. It's a complete travesty.
Thank you for the enquiry about my partner. She's not been great, and we are still trying to process all this (though failing), but hopefully that crisis won't recur.
Thanks for the extra info. Wishing you both well in the struggle to keep your heads above the shit pile.
ReplyDelete