Intended Consequences

The Supreme Court ruling on Wednesday that, for the purposes of the Equality Act 2010, "woman" means "biological woman" quickly led to the common recognition that this is merely the opening salvo in what is likely to be a long and vicious conflict over trans rights. It was therefore both bizarre and yet laughably predictable that the politics desk at the Guardian should greet the decision as good news for the government, on the grounds that Keir Starmer and his ministers could now avoid the wider issue altogether. According to Peter Walker and Severin Carrell, "No 10 officials believe there will be no need to tweak the Equality Act, leaving their role as little more than a neutral voice in helping organisations adjust to the new reality.". This was immediately countered in the same edition of the newspaper by a legal expert, the barrister Sam Fowles, noting that the ruling shows "that parliament urgently needs to look again at the Equality Act." In short, the law is now a mess: "The court’s decision means there are now multiple legal classes of “woman” and “man”, each of which invites a different interpretation of the act: cis women, trans women with a GRC [gender recognition certificate], trans women without a GRC, cis men, trans men with a GRC, trans men without a GRC."

The appeal to the Supreme Court came about as a result of the Scottish Parliament passing a law in 2018 to require public boards to have 50% representation for women. The For Women Scotland advocacy group asked for the law to be struck down on the grounds that this provision included trans women, which the Scottish government said was consistent with the Equality Act 2010. As Fowles notes, there were reportedly no trans women on public boards in Scotland at the time, and this week's judgement does not in any way change the rights of cis women. In short, this was an appeal made deliberately to force the law to restrict trans rights in principle, regardless of the absence of any disadvantage in practice. The noise around the case has been heightened by the usual propaganda about assaults in prison, the potential for rapes in toilets and the "advantages" of trans women in sport. One consequence of this background hum, together with the increasingly prominent claims made by gender critical (GC) activists, has been the alacrity with which some official bodies have insisted that the ruling means trans women and trans men should be treated exceptionally. 

For example, the British Transport Police have proposed that suspects be searched based on their biological sex, which would mean male officers strip-searching trans women. The opportunity for cruelty and abuse in such a scenario should be obvious, just as the likely reluctance of female police officers to strip-search trans men should be. This eagerness to stretch the meaning of the narrow judgement has been reinforced by the prompt intervention of the Equalities and Human Rights Commission, a body that is no stranger to politicised activism after its weaponisation of antisemitism against the Labour Party under Jeremy Corbyn. When asked about the media's favourite topic of going to the loo, the EHRC Chair, Baroness Falkner, suggested  that trans people should use their "power of advocacy" to ask for facilities including a "third space" for toilets. This is revealing in its assumption that the EHRC has no role in advocating for trans rights, and in the way that it echoes the wilder GC claims about a nefarious "trans lobby", but it is also revealing in its belief that a singular third option would suffice, as if trans women and trans men should share the same facilities. 

I said on Thursday that it would be interesting to see how the Guardian handled the fallout given the well-known divisions among it staff, and guessed that the editors would give the main comment gig to Gaby Hinsliff while indulging Susanna Rustin and Sonia Sodha. We'll have to wait for the Observer on Sunday to read the last of these, but with all the weary predictability that is the hallmark of the paper's commentary, Hinsliff and Rustin have both been published already. The latter's contribution was typically triumphant, demanding plaudits for the GC activists who have risked precisely nothing and suffered precisely zero harm. Her conclusion is that the campaign against trans rights has "galvanised an extraordinary renaissance of the women’s movement in Britain", which suggests that in her view it is impossible to be both a feminist and pro-trans. But her most outrageous claim is that "the absorption of these ideas into western progressive orthodoxy has been a grave error. By re-energising socially conservative opposition to shifting gender norms, roles and behaviours, this uncritical adoption of a contested belief ... has fuelled a broader backlash against human rights." This is what is known as projection. The idea that Judith Butler has contributed more to the rise of the far-right than Marine Le Pen or Georgia Meloni, or Joanne Rowling for that matter, is ridiculous.

Hinsliff has long been an exemplar of the paper's centrist equivocation on trans rights, which has led to her being excoriated by more intemperate GC voices such as Julie Bindel, but this in turn makes her a useful bellwether to indicate the stance that the paper will now take. 7 years ago she was against the exclusion of trans women from Labour Party candidate shortlists. Now she talks of the Supreme Court ruling as something to be accepted but implemented sensitively: "But though it inevitably puts a degree of separation between trans and biological women, how far that separation goes is not yet set in stone. It will be for parliament to decide in principle and for people to decide in practice how exactly we all live alongside one another, what social norms we set and how far the clock goes back." Though she suggests that this may simply be a temporary setback for the arc of progress (turning the clock back to 2010), she is quite clear that this is not a matter for civil society: we should leave it to parliament to resolve and otherwise play nice. In other words, the paper's chief concern is about the tone of the debate. This is obviously naive at best and simply craven at worst. The reactionary right see this ruling as the first step in rolling back "gender ideology". As that spectre doesn't actually exist, it is clear that many other rights are going to be trampled on instead. 

Pro-trans articles in the Guardian have mostly been by legal experts, such as the trans woman barrister Robin Moira White. This choice doesn't reflect a subtle bias towards trans rights as evidence-based and rational, or even an indirect criticism of the Supreme Court's decision not to have any trans participants making presentations at the hearing. Instead it reflects the paper's desire that the trans rights case be constrained by expertise, civility and decorum. In contrast, GC contributions, such as Rustin's, are emotional and polemical. As many have pointed out over the last few days, the rage and vitriol of GC supporters has in no way been tempered by victory in the court. If anything, it has been further inflamed. For all the glib talk by the EHRC about respect, it is clear that a maximalist interpretation of "woman means biological woman" is going to be adopted. While lawyers may warn of the unintended consequences of the judgement, it is clear that for many GC activists the intended consequence has always been the practical erasure of trans people. If you wanted a legitimate example of a "chilling effect", the reluctance of politicians and public figures to use the phrase "trans women are women" in future would fit the bill perfectly.

In her comment piece for the Guardian, White makes the key point that gender recognition certificates are now "valueless for the purposes of the Equality Act", which clearly wasn't the intention in 2010, something that has been confirmed by Melanie Field, the civil servant who led the drafting process for the Equality Act. She also notes that the origins of the 2004 Gender Recognition Act lay in the UK losing a case at the European Court of Human Rights. Everything points to the need for parliament to intervene, yet as the well-connected Guardian political desk's immediate response suggests, the government has no intention of revisiting the issue. The question now is whether that reluctance will extend to finally withdrawing from the European Convention on Human Rights, as many on the political right have been urging for years now. It would be fittingly emblematic if the human rights lawyer propelled into Number 10 by a centrist consensus that imagined eventual reaccession to the EU should oversee the UK becoming a human rights pariah and an even more craven lackey of the USA.