The British Supreme Court decision on gender and sex: When law becomes the means of oppression
First published at RS21.
If all you saw was Lord Hodge with his grey hair and blue tie, if all you heard was his voice with its weary, commercial lawyer’s tones, you could convince yourself that this was a court composed of reactionaries. But it wasn’t. The judges who knifed the cause of trans people in the heart were liberals. Of the three who wrote the decision, two were women. One became a barrister in the aftermath of the miners’ strike, was an anti-discrimination specialist because that was the way for her to postpone as long as she could the choice between her former left-wing opinions and the class which now paid her fees. As she was promoted up the judicial hierarchy, she became tougher. She found a way to make sure the employer always won, but until this decision she always gave her judgments with regret, pretending the law left her no choice.
For years, there have been voices within the trans community arguing that rights were winnable on a quick timescale — that, at the moment of choice, the mainstream would choose self-identification, just as it has previously chosen equal marriage rights for same sex couples and the decriminalisation of gay sex. That strategy of moderation was tested on Thursday — it has failed.
Enshrining ignorance and hostility in law
The recent support of trans exclusionary celebrities for Donald Trump is not some new phenomenon. Remember Allison Bailey recycling far-right myths of a worldwide conspiracy of gender theorists all working together in a secret global alliance to defeat the old nuclear family of the 1950s: ‘I believe that everything that has followed around the conflict between sex and gender arises from [Judith] Butler’s work’. Then, boasting that the beliefs she hated, she had made no effort to understand: ‘I have not read Butler’s books.’ The ignorance and hostility of anti-trans campaigners has been all-too visible for many years — the Judges knew what they were doing when they chose to back it.
It is hard to convey to non-lawyers just how bad the decision is as law. The Supreme Court were invited to analyse one sentence of the Gender Recognition Act, which reads as follows: ‘Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).’ By the admittedly low standards of British legislation, this is the one of the easiest to understand statutes that Parliament has passed in 30 years. For all purposes a trans person with a gender recognition certificate acquires their new sex. When the case came to the Court of Session the judges gave a short judgment upholding the Scottish Government’s position that the Gender Recognition meant what it obviously does. The statute was clear, any challenge to it hopeless — why then were the lawyers wasting everyone’s time?
But now we know that ‘all purposes’ doesn’t mean what it says. Now, on acquiring a GRC, a trans person acquires their “acquired sex” in law unless there is a liberal in the judge’s seat and that liberal judge is willing to do anything to defeat them.
The exclusion of trans voices
The decision is opposed not just to trans people, but to logic — and to the role of judges as the interpreters not the authors of the law. It rejects the most minimum standard of a fair hearing. Anti-trans voices were invited to file skeletons, based on witness evidence which no previous court had heard. Trans people were excluded, precisely so that the court would have before it no inconvenient facts — no opportunity for the judges to be distracted from the side which they had already chosen. We haven’t had courts in three centuries which followed a procedure as obviously susceptible to bias.
Struggle and reaction
Think of the judges as reactionaries and you misunderstand them. Liberals seek to negotiate between capitalism’s tendency to make the richest ever wealthier and the vague, equitable, notion that things would be nicer if more people could get on. Theirs is always a philosophy of cowardice. For them to do anything good, they must be disciplined by the threat that other more egalitarian philosophies might go further and be more popular. In Britain, such reforms of the 1960s and 1970s as the granting of abortion rights or the abolition of capital punishment could not have been won without rising struggle: the women’s movement, strikes, the British campaigns for Black power and gay liberation.
The malign genius of the anti-trans campaigners was that they persuaded the Supreme Court that the judges had to choose between women and trans people. Putting the decision in that way was a lie. It required the Supreme Court to rule that there exists such a thing as a biological woman; a concept which would collapse if the judges had done GCSE biology. It needed the Justices to find that women, as a group, are opposed to trans people as a group — when every poll shows most women support trans rights. Reality had to be stood on its head for liberalism to find a way out of its own political confusion.
Years ago, the left learned to go deeper and distinguish between those advocates of women’s rights who were, in practice, champions of empire or of genocide. Historians such as Sophie Lewis, Alex Charnley and Michael Richmond have helped in that task by showing how, in previous moments of defeat, a minority of feminists went from supporting the suffragettes for example to shilling for Oswald Mosley. Mainstream, political, liberalism has never gone through a similar process of learning. Anti-discrimination law (drafted, as it was by liberals) always misses the reality of social injustice, always privileges the individuals, never pays proper attention to the social situation of the group.
The role of the Equality and Human Rights Commission
Other processes, too, made Thursday’s defeat possible: the far right capture of the EHRC, who lobbied for it and has now issued guidance, written by a small caste of promoted lobbyists who were given their jobs by a Conservative government to fight the culture wars, and published in secret at 10pm on a Friday, to bury what even the drafters knew was bad news. Pro-trans organisations have explained that there are no criminal laws which prohibit anyone, trans or cis, from using the toilet of their choice. In reality, cis men have always used women’s toilets when they need to (imagine being the father of a small child, when there are changing facilities in the women’s only), just as women have always used men’s toilets (when the men’s are empty and the women face a long queue). For years, people have just got on with their lives, muddled through — and it’s that process of plain getting on with other people which the EHRC is determined to stop.
The EHRC has the power to make guidance because of its role in interpreting workplace law and because of Part 3 of the Equality Act which covers the provision of goods and services (in for example a museum, an LGBT cafe, a university). Its new non-statutory guidance does not target people using the “wrong” toilets, or not immediately. It targets rather the employer and the service-provider who has not published a sufficiently militant and anti-trans toilet policy. The guidance says three things: first, that employers and providers of public services must provide single sex toilets. Think of an LGBT cafe, small enough for just two cubicles. Applying the guidance, it must make one of them a men’s and one a women’s toilet. Second, that employers and services should exclude trans people from any single-sex toilet except the one to which their birth certificate entitles them. (This part, although obviously hostile to trans people, is consistent with the Supreme Court decision). Third, that employers and services can exclude trans people from any toilet, even the one to which they are in theory entitled by their birth certificate. In the EHRC’s words: “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 women) not to be permitted to use the women’s facilities”.
Notably, the guidance suggests that service-providers must provide some toilets which trans people can use; but makes no similar concession when speaking of employers. That absence is — in effect — support for any employer who operates a complete trans employment ban. For if an employer refuses to let trans people use any of its toilets, making them all single-sex, and excluding trans women from both the women’s and the men’s toilets, how could any trans person remain in that workplace?
(During an epidemic of trans youth suicide, the guidance for schools is no less hostile: ‘Pupils who identify as trans girls should not be permitted to use the girls’ toilet or changing facilities, and pupils who identify as trans boys should not be permitted to use the boys’ toilet or changing facilities.’).
It may seem extraordinary that our Equality and Human Rights Commission is encouraging employers effectively to ban trans people from the workplace. But it was the Supreme Court which led us to this place, with its weird insistence that women’s and lesbian organisations cannot any longer permit trans women into membership, even when that organisation wants to.
If challenged, the Commission could explain the steps which lead it to its proposed trans employment ban. There has long been a rule that employers can apply positive action in the vanishingly few workplaces where a recruitment ban on some trans employees might be rational: think, for example, of a women’s DV refuge which declines to employ trans people in the first year of their social transition. No advocate of trans equality would welcome such a rule, all of us would grasp its discriminatory effect, but you could at least understand its logic. It makes a compromise between the needs of trans employees and the women who use the service. You can close your eyes and imagine a tiny class of situations where such a nuanced bargain might be proportionate under the Act. The EHRC has, without saying this is what is doing, extended this weak prohibition to an unexplained category of some or many or most workplaces. It has done so because it, like the group of anti-trans bigots to which it is affiliated, is always exaggerating how far the law goes. But when the EHRC produces guidance which encourages discrimination, the social effect is so much greater than the bigots on Twitter. The Commission’s guidance is usually (if admittedly not this in case) statutory — employers are expected to follow it. Many businesses won’t wait for the explanation or the challenges, but will simply refuse to recruit trans employees.
The bigots will do what they have always done. Working with lists of LGBT and women’s campaigns, they will look for places which have introduced unisex toilets. They will start with women’s centres and LGBT spaces. They will be saying that, unless those buildings now convert trans-friendly toilets to single space ones, the transphobes will sue them. Backed up by the Supreme Court decision and the EHRC guidance, the pressure to concede will be powerful — but it must be resisted.
The social function of the law
Among the reasons why the law is always rejecting gender self-determination is the social function of the law in sorting, organising and insisting on the boundaries which states need but which people themselves are always ignoring. In living memory, trans people were once a part of everyday life. In our working-class-majority society, they were accepted as what they were. As Felix Moore has written, the first turning point came in 1970 when Mr Justice Ormrod, sitting in the High Court, decided what should be done about April Ashley’s marriage to the Honourable Arthur Cameron Corbett. Ormrod was aware how little interest the state had taken until then in trans rights and how permissive society had been, declaring that the case was, ‘the first occasion on which a court in England has been called on to decide the sex of an individual.’ Labour wrote the Gender Recognition Act to restore the law to what it had been before 1970. It was a wonderfully clear, simple, piece of legislation — understood by everyone — but despised by the bigots. Until now, theirs was a hopeless cause. But now the judges have backed them
Ormrod was a grade A reactionary. Our present Supreme Court Justices are liberals. But, in refusing to accept Ashley’s womanhood, his justification was a biological definition of womanhood; Ashley, he said, despite her vaginoplasty, “was physically incapable of consummating a marriage.” By which he meant not that Ashley and Corbett were incapable of penetrative sex but that, in law, the time they spent beneath the sheets did not count since it could not cause her to give birth. He was echoed by the Supreme Court judges in their recent decision when they said that the origins of the meaning of the term ‘sex’ in the Equality Act must depend on what the Act said about pregnancy. He, and they, reverted to the ideological fiction that a woman is only a woman if she can give birth.
The Supreme Court ruling is a defeat for all women
The judges’ anti-trans ruling is ‘a defeat for all women,’ the feminist writer Sophie Lewis has written. The judgment relies on the idea that women are a class of innocents whose public movements require protection in the hospital, in the streets, at work. It takes a lead from the anti-trans activists, and their pretence that violence is unimaginable within the home. It begins the process of mobilising a large group of men (the police, immigration authorities, prison guards) whose task will be to scrutinise women’s bodies as the prelude to protecting them from trans contagion. Remember Sarah Everard, and how the police and prison guards are so often abusers. Give the bigots an authority over all our lives, and they have nothing to go on but people’s looks. Any feminist or Communist should see how hostile this way of thinking is also to those many millions of other women whose lives take them away from what the state expects of them — to give birth — because they are not straight, or because they’ve been through the menopause. Where does a biological conception leave the woman who chooses an abortion?
People in society accept trans people, then the state intervenes to present self-identification, then campaigns have to emerge outside and against the state. We are at that same, familiar, point as the movement was in 1970 — the victories we need cannot be won through the judges but only against them.
Building the fightback
The protests against the decision were notable for their size and their militancy. The one in London was probably the largest pro-trans protests we’ve had save for pride marches. Since the judgment, trans people have marched in 26 cities with another nine protests planned. Unions including CWU, UCU, PCS, Equity, and branches of UNISON and UNITE backed the protests. Starting with the L with the T protesters, we have seen a deeper feminist solidarity emerge — one that liberates rather than constricts, and which could see a generation renewal of the left. Those who have taken part were right in their assessment of the threats trans people face but also the opportunity this moment brings for the emergence of new forms of revolutionary activism. This whole Trump-Farage-Starmer cycle of growing authoritarianism will need to be turned into one of popular victory before trans people can claim victory. The acceptance of trans people among the young, and the growing identification of people themselves as trans, non-binary, gender non-conforming, etc — those too are forces so strong that not even repression can tame them. What we need, trans person and cis ally and everyone who stands with us, is a revolutionary struggle.
There is a history of working class support for trans people which means the necessary majority to win this fight exists. Watch out Judges, you don’t understand the fury that’s raging at you.