Victoria McLoud’s appeal is based on article 6 of the European Convention of Human Rights (Fair Trial) Apparently others will be associated. The key factor appears to be that the UK Supreme Court refused to hear from any trans individuals or representative groups. The facts of the refusal are not in dispute.
That is a different issue to any appeal against the EHRC interim guidelines which are the Good Law target.
@pease the Equality Act joes part way there in protecting people from discrimination on the grounds of gender reassignment.
The Equality Act 2010 only recognises gender reassignment - "a process which is undertaken under medical supervision". I conclude that any process that doesn't involve medical supervision (eg self-determination) isn't recognised.
What struck me today is that what had appeared to be gradual progress in the UK towards some kind of formal recognition of self-determination of gender, has gone into reverse.
Furthermore, the Equality and Human Rights Commission is the statutory body that enforces the Equality Act 2010. Overnight, its interpretation of the Supreme Court's judgment has increased the amount of discrimination that even people *with* the protected characteristic of gender reassignment expect to experience.
pease
I’m asking you this question noting your insight and also any Shipmates with a legal background. I’d be interested in your take.
Is the EHRC interim guidance is in conflict with the Human Rights Act? The Good Law project clearly believes it is and since the European Convention on Human Rights is an international treaty the UK is signed up to, it remains in force despite our withdrawal from the European Union. Under that convention, all public authorities have a duty to act in accordance with its principles.
It seems very strange to me that a public authority entitled the Equality and Human Rights Commission should issue guidelines which go against the provisions of the European Convention on Human Rights. They must have lawyers (or access to lawyers) available to vet those interim guidelines. Am I missing something? On the face of it the guidelines conflict with Article 8 (Privacy), Article 10 (Freedom of Expression), Article 11 (Freedom of Association) and Article 14 (Discrimination).
Has the UK, while remaining a signatory to the European Convention, also legislated in some way to deny its effect?
It’s been a long time since I’ve cracked open the HRA, and of course I don’t practice in the UK. But I did actually do some serious research around the HRA in its early days. So a few thoughts with the caveat that this is really spitballing about possibilities from across the pond.
My recollection of the Act is that while it incorporates the ECHR into domestic UK law, it does not give courts the power to invalidate legislation based on conflict with the ECHR. Domestic courts can issue a Declaration of Incompatibility (declaring legislation incompatible with provisions of the ECHR) and they can also use the ECHR as an interpretive tool.
Also, as I recall, the European Court of Human Rights (ECtHR) won’t hear a case until after it’s been through the domestic court system and gives member states a degree of leeway (“margin of appreciation”) in applying the ECHR within their own jurisdictions. And the ECtHR cannot directly invalidate domestic legislation either. So challenging legislation is a long and involved process that will not be guaranteed to change the law at the end of the day.
I don’t really know what the practical effect of that has been over the years - others may be in a much better position to answer that question - but for all these reasons it may well be that compliance with ECHR may not be top of mind in cases where the UK government finds the ECtHR’s jurisprudence not to its liking. As a practical matter the ECHR is applied to government action through the domestic courts applying the HRA and the domestic courts follow their own jurisprudence in applying the HRA.
As I understand the Good Law Project’s website they propose to go to High Court (i.e., back to the trial level) and ask for Declaration of Incompatibility. They don’t say what they’re asking for the Declaration in relation to but I infer that what they’re asking the Court to say is that the EA as just interpreted by the UKSC is incompatible with the ECHR. Whatever happens in High Court there will be appeals.
The obvious issue of course is that the UKSC has just interpreted the EA precisely in the way that the GLP says is incompatible with the ECHR. Now interpreting a statutory provision is a different task from assessing its compliance with human rights standards. I can think of cases in Canada where appellate courts have interpreted statutory provisions in a certain way and then later gone on to say that the provision as they just interpreted it a few years ago is invalid because incompatible with the Canadian Charter of Rights. That said, I doubt the UKSC was doing that in this case. They seem to think that their interpretation of the EA makes sense on a normative human rights level and so I would be surprised if they then turned around in a few years to say it violates the ECHR. But of course they might, especially if the factual record on the new challenge as it works its way through the courts is better than the record on the last case seems to have been.
On a personal note it is very discouraging to see this happening in the UK. When I started looking UK-ward on these issues 20 years ago it seemed that the UK was well ahead of Canada on these issues and that competent people were quietly getting stuff done. Now we are seeing apparently intelligent people in the UK on all sides of the political spectrum apparently losing their minds on the issue and veering into frank transphobia. There seems to be cautionary tale here though what it is I am not sure.
My last post was a cross post with B62. I see from his post that the GLP challenge is to the new guidelines. My gut says it probably has a better chance of success than a challenge to the EA itself, since one might doubt whether the UKSC thought these would follow from its decision.
This is a bit chicken-and-egg in that the noise made by TERFs have meant that transwomen feel unsafe, and therefore there may have been more transwomen on these shortlists if there hadn't been the noise.
There just aren't that many trans women. Out of roughly 17,000 local councillors in the UK, less than a dozen are trans. If public life was less hostile to trans people, perhaps that number would be a little larger, but we're still talking about a rather small number of people.
To my knowledge, one elected MP has said they are trans, ever (that was Conservative MP Jamie Wallis, who served one term as an MP from 2019 to 2024).
The idea that there's an army of trans women poised to exclude cis women from politics is obvious nonsense.
I'm not arguing with you, I'm trying to understand the hysterical TERF position. Which appears to be around the idea that men exist who "fake" being women in order to get into spaces that are designated for women. It doesn't matter if there are 1 or a million of these "fake women", the thinking goes, it is unfair that they are taking away the precious female places and eventually all the "real women" will be pushed out by the "fake women"
Of course there are many logical problems with this, but they're not really countered by pointing to the low numbers of transwomen in politics.
And Kate Barker, of the campaign group LGB Alliance, said: "The needs and wishes of a tiny number of trans women like Victoria McCloud cannot supersede the rights of 34 million women in the UK who need and deserve the privacy, dignity and safety of single-sex spaces."
They have their own numbers. The assertion that 34 million women (note trans women are excluded) “need and deserve” seems to assume that all women see this in the same way. That’s just not true.
And since when did did the human rights of any group supersede the rights of any other group?
LGB Alliance is a hate-filled organisation that IME is disowned by practically all LGB people (ie: everyone I know says they don't speak in their name - the vast majority of LGB people are also trans-affirming).
In my reply to you yesterday, I was alluding to the way that this imagery feeds into the preferred framing of the reactionary, anti-progressive coalitions - that an adversarial contest, with a winner and a loser, plays into their agendas. (In which scapegoats are losers, and losers become scapegoats.)
There are alternative win-win framings - such as the whole of society benefitting from not stuffing people into one of two normative boxes. Or both boxes at the same time, as Victoria McCloud pointed out when she announced her legal action:
[This judgment] has left me two sexes at once, which is a nonsense and ironic, because the Supreme Court said that sex was binary.
I am a woman for all purposes in law, but [now under this judgment] I’m a man for the Equality Act 2010. So I have to probably guess on any given occasion which sex I am.
...
They seem to think that their interpretation of the EA makes sense on a normative human rights level and so I would be surprised if they then turned around in a few years to say it violates the ECHR. But of course they might, especially if the factual record on the new challenge as it works its way through the courts is better than the record on the last case seems to have been.
On a personal note it is very discouraging to see this happening in the UK. When I started looking UK-ward on these issues 20 years ago it seemed that the UK was well ahead of Canada on these issues and that competent people were quietly getting stuff done. Now we are seeing apparently intelligent people in the UK on all sides of the political spectrum apparently losing their minds on the issue and veering into frank transphobia. There seems to be cautionary tale here though what it is I am not sure.
The danger of wishful thinking? Maybe it was all just a dream.
UK law does not recognise non-binary genders. (For example, the ruling and recent appeal in the case of Ryan Castellucci.)
It seems to me that the Supreme Court's ruling in effect confirms that UK legislation has never accepted anything other than a dimorphic definition of sex. And no definition of gender other than relating to this definition of sex.
Note that this isn't the same as saying there are no protections under UK law for non-binary people. In Taylor v Jaguar Land Rover in 2020, an employment tribunal ruled that non-binary gender and genderfluid identities fall under the protected characteristic of gender reassignment in the Equality Act 2010:
It was very clear that Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum... it was beyond any doubt that somebody in the situation of the Claimant was (and is) protected by the legislation because they are on that spectrum and they are on a journey which will not be the same in any two cases.
It appears that the judge in the tribunal was drawing on the following parts of the EHRC's own Statutory Code of Practice on Employment:
2.23 Under the Act ‘gender reassignment’ is a personal process, that is, moving away from one’s birth sex to the preferred gender, rather than a medical process.
2.24 The reassignment of a person’s sex may be proposed but never gone through; the person may be in the process of reassigning their sex; or the process may have happened previously. It may include undergoing the medical gender reassignment treatments, but it does not require someone to undergo medical treatment in order to be protected.
Note that the EHRC's Statutory Code of practice on Services, public functions and associations additionally has:
This broad, non-medical definition is particularly important for gender variant children: although some children do reassign their gender while at school, there are others who are too young to make such a decision. Nevertheless they may have begun a personal process of changing their gender identity and be moving away from their birth sex. Manifestations of that personal process, such as mode of dress, indicate that a process is in place and they will be protected by the Act.
But it appears that employment tribunals don't carry the weight of case law. I don't know if Jaguar Land Rover appealed, but it looks like the Supreme Court's ruling might have moved the goalposts.
LBG alliance are a 55 Tufton Street based anti-trans hate group. They have no right to talk for anyone at all but their own tiny bigoted membership and unaccountable donors with deep pockets
It's poor journalism that they were quoted at all without making clear that this is what they are. Propaganda think tanks fuelled by rich donors work by getting journalists to take them seriously when they are actually astroturfed groups. It's a widespread problem - outlets many people would think of as reputable news sources use and quote contributors from these murky sources.
Again one of the problems of this backwards court ruling is that in discussing it there's a danger of it getting us to repeat its false framing.
The rights of women and trans people (many of whom are women!) are not in conflict.
The whole way this propaganda campaign is set up is to get folk to repeat and take seriously the lie that there's a conflict of rights. There isn't.
I'm sure you know that Barney, but I'm just adding a bit of background.
It seems to me that the Supreme Court's ruling in effect confirms that UK legislation has never accepted anything other than a dimorphic definition of sex. And no definition of gender other than relating to this definition of sex.
It's occurred to me that if Statutory Codes of practice are secondary legislation, that there's an important and relevant distinction between primary legislation (Acts of Parliament plus a couple of other categories) and secondary legislation.
Since ChastMastr's question (about descriptors), I've been thinking about the wider question of gender categories, and the ways in which they are defined, assigned, experienced and lived.
Before there is a law, in Judith Butler’s words, ‘there must be a body trembling before the law, a body whose fear can be compelled by the law.” The law “marks the body first with fear only then to mark it again with the symbolic stamp of sex.” (Bodies that Matter, 101)
Before there is a law, there are people, embodied people, yes, but it is only through the operation of the law that the person becomes a body and the body acquires a sex. Sex, putatively ‘biological,’ is assigned depending on the point of view of an observer at birth in accordance with culturally determined categories of bodily configuration. Gender, as ‘the cultural meanings that the sex body assumes’ (Butler, Gender Trouble, 6), is presumed to follow. Sex/gendering happens within a system of cultural norms which render bodies intelligible or otherwise. To be rendered unintelligible in relation to the norm is to enter a state of abjection – being illegible, unwanted, castaway. How much worse, then, when the norm assumes the force of law?
And from the unredacted part of Judith Butler's Guardian interview by Jules Gleeson in 2021:
It’s been 31 years since the release of Gender Trouble. What were you aiming to achieve with the book?
It was meant to be a critique of heterosexual assumptions within feminism, but it turned out to be more about gender categories. For instance, what it means to be a woman does not remain the same from decade to decade. The category of woman can and does change, and we need it to be that way. Politically, securing greater freedoms for women requires that we rethink the category of “women” to include those new possibilities. The historical meaning of gender can change as its norms are re-enacted, refused or recreated.
So we should not be surprised or opposed when the category of women expands to include trans women. And since we are also in the business of imagining alternate futures of masculinity, we should be prepared and even joyous to see what trans men are doing with the category of “men.”
How does [Gender Trouble's central idea of ‘Performativity’] relate to gender?
I suggested more than 30 years ago that people are, consciously or not, citing conventions of gender when they claim to be expressing their own interior reality or even when they say they are creating themselves anew. It seemed to me that none of us totally escape cultural norms.
At the same time, none of us are totally determined by cultural norms. Gender then becomes a negotiation, a struggle, a way of dealing with historical constraints and making new realities. When we are “girled,” we are entered into a realm of girldom that has been built up over a long time — a series of conventions, sometimes conflicting, that establish girlness within society. We don’t just choose it. And it is not just imposed on us. But that social reality can, and does, change.
Today’s queers often talk about gender being ‘assigned at birth.’ But your meaning here seems pretty different?
Gender is an assignment that does not just happen once: it is ongoing. We are assigned a sex at birth and then a slew of expectations follow which continue to “assign” gender to us. The powers that do that are part of an apparatus of gender that assigns and reassigns norms to bodies, organizes them socially, but also animates them in directions contrary to those norms.
Perhaps we should think of gender as something that is imposed at birth, through sex assignment and all the cultural assumptions that usually go along with that. Yet gender is also what is made along the way — we can take over the power of assignment, make it into self-assignment, which can include sex reassignment at a legal and medical level.
This is a bit chicken-and-egg in that the noise made by TERFs have meant that transwomen feel unsafe, and therefore there may have been more transwomen on these shortlists if there hadn't been the noise.
There just aren't that many trans women. Out of roughly 17,000 local councillors in the UK, less than a dozen are trans. If public life was less hostile to trans people, perhaps that number would be a little larger, but we're still talking about a rather small number of people.
To my knowledge, one elected MP has said they are trans, ever (that was Conservative MP Jamie Wallis, who served one term as an MP from 2019 to 2024).
The idea that there's an army of trans women poised to exclude cis women from politics is obvious nonsense.
I'm not arguing with you, I'm trying to understand the hysterical TERF position. Which appears to be around the idea that men exist who "fake" being women in order to get into spaces that are designated for women. It doesn't matter if there are 1 or a million of these "fake women", the thinking goes, it is unfair that they are taking away the precious female places and eventually all the "real women" will be pushed out by the "fake women"
Of course there are many logical problems with this, but they're not really countered by pointing to the low numbers of transwomen in politics.
I think they have been watching too many Carry On films, basically. I wish they'd get their minds out of the gutter.
It is however interesting to note that the principle 'garbage in, garbage out' applies to legal systems as well as to computer programming.
I really hope there will, eventually, be a win-win. But as things stand, there seems no option other than to pursue what adversarial legal avenues that may be available.
And in general, in response to your previous question, I am thinking what you are thinking!
Louise
I agree entirely about the BBC error in quoting from the spokesperson for the the LGB alliance. Actually the quote shows them up for what they are, but it’s a very strange interpretation of balance to include it. Or a very ignorant one.
I agree entirely about the BBC error in quoting from the spokesperson for the the LGB alliance. Actually the quote shows them up for what they are, but it’s a very strange interpretation of balance to include it. Or a very ignorant one.
Yes, I tear my hair. If I hadn't lived through watching this moral panic take off in the media I wouldn't believe the things I have to say to people now about how once reputable sources will feed their audiences absolutely toxic and distorted stuff on this without being clear about what they're doing.
Fears of litigation and terrible takes about how to do 'impartiality' play a role in it as well as the obvious bad actors.
@Barnabas62 : they did it with Brexit too. They're doing it with climate change. Never mind how many people hold the opposing view or how rational it is, just get some nutter who wants 15 seconds of fame to spout it.
I believe that English law in particular has a long history of treating the weaker party as chattel of the stronger party. Alongside this is the philosophy that essentially people don't and can't change at all. As things have changed since the 18th century these ideas have been challenged, but the memory within the law is long.
In contrast I think culturally we all accept that people are constantly changing. Arguably I've had about 6 different lives within my life and many people have had major life changes such as divorce, bereavement, accepting their sexuality, changing religion etc.
Insisting that people are just one thing and can never change to be another thing is seen as nonsense. As my granddaughter would say, this is just a social construct. And society has changed so the construct needs to catch up.
And since when did did the human rights of any group supersede the rights of any other group?
All the "interesting" cases involve the places where people's rights meet. They inevitably involve weighing the rights of one person or group of people against the rights of another person or group of people, and deciding which ones take priority.
And since when did did the human rights of any group supersede the rights of any other group?
All the "interesting" cases involve the places where people's rights meet. They inevitably involve weighing the rights of one person or group of people against the rights of another person or group of people, and deciding which ones take priority.
Absolutely. The more one thinks about, the more one realises how many places there are where rights will abut and challenge each other.
The savage irony is that for the most part, the clash between trans rights and women's rights is a myth.
I really hope there will, eventually, be a win-win. But as things stand, there seems no option other than to pursue what adversarial legal avenues that may be available.
And in general, in response to your previous question, I am thinking what you are thinking!
Thanks, B62.
It's not clear to me that the European Court of Human Rights is inherently adversarial (in the way that it hears representations from both parties).
In any case, I'm not suggesting that legal avenues should not be pursued, I'm suggesting that using an adversarial metaphor isn't appropriate. As you note, this is not a case in which for one group of people to gain human rights, another group of people must lose them. It is part of the struggle for equality for all - it is not an inherently win-lose scenario. But portraying it as such is an established tactic of reactionaries and anti-progressives, who seek to set different disadvantaged groups against each other, as though there were only so much "rights" to go round.
I'm also suggesting that it might not be appropriate to use an analogy of one person inflicting physical violence on another, in the context of (legislation for protection against) discrimination, harassment and victimisation. The lived experience of transgender and non-binary people often includes actual physical bullying and violence, as is the case for many of the issues addressed in Epiphanies. But fighting for freedom from the threat and reality of physical violence is still a fight.
Apart from that...
I think it highly unlikely that either of us thought what Michael Howard was thinking.
But it is a situation where there is perceived scarcity. Every transwoman who sits on a quango is a cis woman who could/should be sitting there, the thinking goes.
I thought I'd made this point here earlier but I might have thought about it and not written it down. Several times in my life I have experienced people who could be in a position to help increase diversity for underrepresented groups but don't. And there reasoning has been a variation of "why should I help other people from other groups access when that would mean less jobs for people like me and specifically me."
It's a small minded zero-sum view perpetuated by people who are aware that they lack the talent to do something that they've only achieved by privilege. But it isn't unusual.
Quite right! Trouble is that my daughter, understandably, now feels she’s at war. So pugilistic metaphors, which I agree rationally are not appropriate, are on my mind. There are people who I’d like to punch. My emotions may sometimes get the better of me.
My daughter in her letter to her MP signed off “in anger and fear”. I feel that too. Seeing someone I love, who has been very patient and courageous throughout her transition, become a target of prejudice, is really very hard to bear.
Sending you and your daughter a hug, @Barnabas62. Your daughter's signoff on that latter really does sum up how the trans community are feeling, and my heart is aching for you both.
I wish I knew what to do to make it nontheoretical for others. My dear friends are leaving the country or have already left. I'm again feeling really glad that I never told the government I'm NB. How do so many cis people think this is still safe and okay. And what the fuck can we do to wake them up?
I’m not sure. The history of those dehumanised because they are somehow seen as both different and threatening is not encouraging.
Some get martyred. Some hide on the catacombs. Not everyone is called to be a martyr. Keeping your head down and waiting for a better, more understanding, day is also a calling too.
But given that I’m cis, I’m going to make a lot of dissenting noise. And see what that does.
I'm again feeling really glad that I never told the government I'm NB.
Yeah. We had a request last year from a school to take part in a UK gov survey which, among other things, would have asked kids about their gender identity. I may have seemed a little paranoid saying that it was a really bad idea to give the UK gov a list of our trans and non-binary pupils but I'm glad I said it and the survey was never mentioned again.
Quite right! Trouble is that my daughter, understandably, now feels she’s at war. So pugilistic metaphors, which I agree rationally are not appropriate, are on my mind. There are people who I’d like to punch. My emotions may sometimes get the better of me.
My daughter in her letter to her MP signed off “in anger and fear”. I feel that too. Seeing someone I love, who has been very patient and courageous throughout her transition, become a target of prejudice, is really very hard to bear.
None of this is theoretical for me.
Thanks Barnabas62. You're right - I can't tell you or anyone else how to feel.
Anger and fear are what have been driving this whole process. It hasn't been about a group of people fighting for their rights, it's been the stoking up of anger and playing on fears and pointing the finger at a different group of people, as if finding someone else to blame for their own fear and anger will solve the complexity of causes that bring it about. This isn't to say that the fear and anger aren't real, but the origins of that fear and anger are rather more deep-seated than can be addressed by identifying a threatening concept - gender - and making judgments against a group of people who are just trying to live their lives with identities and expressions of being that are illuminated and enabled by that concept.
Just as an illustration of how this affects cis women too: I was helping Mrs Feet plan how to respond (as a near 6ft cis woman with a deep voice and features that read even more masculine than before due to medical issues) if challenged by transphobes when trying to use public toilets. She's scared that queues at toilets are likely to present opportunities for transphobes to gang up; she's already had glares and dirty looks and the latest nonsense will only embolden the genitalstapo. She wants to cut her hair short again but fears appearing less "feminine" in the eyes of bigots.
And since when did did the human rights of any group supersede the rights of any other group?
All the "interesting" cases involve the places where people's rights meet. They inevitably involve weighing the rights of one person or group of people against the rights of another person or group of people, and deciding which ones take priority.
Absolutely. The more one thinks about, the more one realises how many places there are where rights will abut and challenge each other.
The savage irony is that for the most part, the clash between trans rights and women's rights is a myth.
AFZ
I agree about the irony!
But the general point is fair. However carefully the UK Supreme Court may have considered the comparative human rights claims in its judgment, the absence of trans testimony in its hearing does cast doubt on the fairness of its processes. And the subsequent actions of the EHRC cast further doubts on the fairness of its processes in considering comparative human rights.
These doubts have a legal basis and deserve a further test in law.
I was thinking about this with respect to banks (and other private institutions) unilaterally deciding that the law applies to them.
I doesn't seem impossible to imagine a bank colleague who is unaware that their colleague is trans. This ruling has now apparently insisted that they out themselves to their colleagues due to the toilet door they go through. Which could easily lead to workplace bullying and discrimination.
If there is a TERF on staff who is determined to be a witch-hunter general, both cis and trans women could become a target depending on their appearance.
There's a workplace I know and occasionally visit which has a block of toilet cubicles. Whether they are "rooms" or "cubicles" is a bit debatable as they are fully contained with no gaps at the bottom of the doors or dividers and include sinks.
The employer originally had these as unisex facilities. After some pressure the bizarre compromise was that some were labelled as male, some female and some unisex.
Just as an illustration of how this affects cis women too: I was helping Mrs Feet plan how to respond (as a near 6ft cis woman with a deep voice and features that read even more masculine than before due to medical issues) if challenged by transphobes when trying to use public toilets. She's scared that queues at toilets are likely to present opportunities for transphobes to gang up; she's already had glares and dirty looks and the latest nonsense will only embolden the genitalstapo. She wants to cut her hair short again but fears appearing less "feminine" in the eyes of bigots.
I'm in a different situation but I've decided I'm taking them on. I wrote to my MP. I've got my selection of trans pride and progress pride flag badges to wear when out and about and they can come at me if they clock them and I'll chum any trans woman who needs it to the loos and help her find safety or stand between her and them if I can, and help her get away if need be. And the same for any woman policed for her appearance.
I'm short and disabled and long haired and tend to wear dresses ( but the walking stick can come in handy) so I have some advantages - and I'm happy to do what I can for others.
It's a small thing we all can do - get pride pins and wear them - let the bigots see they don't speak for everyone. Back in the 1990s I used to wear my red AIDS ribbon to work and got some run ins over it - but it makes it visible that they don't speak for everyone.
Over the past few years, there's been a very big push for inclusivity. By which I mean, primarily as an employer. Trusts I know have adopted rainbow branding across lots of corporate ID, have embraced national and local events like Pride. I've even been asked about it in consultant interviews. The Trust I currently work in has made most toilets unisex.
I continue to think the EHRC interim guidelines both obscene and ridiculous but I also imagine most NHS organisations will feel significant pressure to conform.
AFZ
*"Interesting" obviously has multiple meanings here.
Just as an illustration of how this affects cis women too: I was helping Mrs Feet plan how to respond (as a near 6ft cis woman with a deep voice and features that read even more masculine than before due to medical issues) if challenged by transphobes when trying to use public toilets. She's scared that queues at toilets are likely to present opportunities for transphobes to gang up; she's already had glares and dirty looks and the latest nonsense will only embolden the genitalstapo. She wants to cut her hair short again but fears appearing less "feminine" in the eyes of bigots.
I deeply hate that she can't fit into her comfort/convenience/view of self as easily because of those jerks.
The FA has banned transwomen from playing women's football, this applies at any level. Sure, why not poison the minds of younger generations.
Radio 1 just had an interview with a spokeswoman for ‘campaigners’ saying how great this was and they hoped men’s football would welcome the trans players (28 IIRC the FA saying would be affected).
I was waiting for the challenge to her about the women’s teams ‘welcoming’ those trans male players born female, but Radio 1 missed that fairly obvious point.
I don't know how this works but I doubt that the FA can tell teams playing in a 5-a-side knockabout that they've got to consent to this change.
Personally I can't see that there are many sports where the participants are essentially equally matched where the sex matters.
I heard someone mention Park Run. Which I thought was a leisure activity where people with a range of abilities run around a park. Why does it matter what your sex is? An olympic athlete is going to knock the hair off anyone who competes in a leisure run so the notion that there is or can be a "record" is utter nonsense.
They FA can't dictate how anyone plays football. They can however gatekeep the leagues, teams and matches affiliated to them however.
Although I wouldn't be surprised if people on the ground use the FA's ruling to put pressure on non-FA football events.
I had a horrible thought that there may well be pressure on the council-run leisure centres to ensure that those using the facilities (tennis courts, all-weather football pitches etc) meet the purity standard.
I've played squash and badminton etc loads of times in mixed spaces. Not in any formal club or competition, where I think there might be busybodies from outside telling teams what they should do.
What this shows, I think, is that there's a concerted effort by biogots which is being enabled by others to erase trans people from public view by making spaces unfriendly for them.
I think it's been happening with parkrun, which is not competitive, that is, bigots demanding that transwomen cannot compete as women.
I know that Transphobes are not known for their consistency but how can you demand this when by-definition, it is not competitive???
Competitive sport actually is a complex question and that is true of athletes with Differences in Sex Differentiation diagnoses as well.
But in ParkRun, what we see is people whose lives are in no way affected by the presence of Trans people finding an excuse to make the lives of Trans people worse...
I get thanked a lot for standing up for the trans community. In fact, the thanks run the other way. I wrote, in ‘Bringing Down Goliath’ (Penguin, 2024), about how advocacy for trans people has opened my eyes to how the world is for people without my privilege. The work has given me “a skeleton key to a whole new moral universe”.
I’ve already spoken favourably about the Green Party. The Liberal Party seems to me to be keeping a low profile. Which other organisations are sticking up for trans human rights?
The Good Law project has received mixed comments here. Understandably so I guess. But I find little to argue with in that link above. I wish more people were seeing it and saying it.
Mrs Feet's worries got me thinking too. I am not as tall as she is and have never been challenged, but if I were, how would I prove I was female? Carry my birth certificate around with me? Anyone can request a birth certificate, it might not be mine. Passport? But people with GRCs are allowed to use their trans gender rather than their birth gender on that, aren't they*? For the moment, at least.
Perhaps we should all be issuing counter-challenges to the challengers, on the grounds that a Real Woman would be far too busy worrying about the length of the queue and whether there was any toilet paper left to wonder how many of the people standing next to her were born female.
*apologies if this is the wrong terminology, no offence is intended
I doubt that I would ever get challenged - even when I'm wearing a man's suit and tie I still look feminine - but if I were, I've decided to go with: "You prove that you're a woman first."
The problem is that it's hard to prepare oneself for that level of sudden confrontation, especially as it's not implausible that it's going to come from a group (which may also be mixed or entirely male)
The problem is that it's hard to prepare oneself for that level of sudden confrontation, especially as it's not implausible that it's going to come from a group (which may also be mixed or entirely male)
Entirely true.
Moreover a man or group of men harassing a woman to 'prove she's a real woman' is orders of magnitude more likely than a woman being harassed by a trans woman.
It makes trans people less safe and makes us all less safe as it's a gift to aggressive intolerant ignoramuses and bullies and encourages them to behave that way in public to other people.
Comments
That is a different issue to any appeal against the EHRC interim guidelines which are the Good Law target.
Left hook followed by right cross?
It’s been a long time since I’ve cracked open the HRA, and of course I don’t practice in the UK. But I did actually do some serious research around the HRA in its early days. So a few thoughts with the caveat that this is really spitballing about possibilities from across the pond.
My recollection of the Act is that while it incorporates the ECHR into domestic UK law, it does not give courts the power to invalidate legislation based on conflict with the ECHR. Domestic courts can issue a Declaration of Incompatibility (declaring legislation incompatible with provisions of the ECHR) and they can also use the ECHR as an interpretive tool.
Also, as I recall, the European Court of Human Rights (ECtHR) won’t hear a case until after it’s been through the domestic court system and gives member states a degree of leeway (“margin of appreciation”) in applying the ECHR within their own jurisdictions. And the ECtHR cannot directly invalidate domestic legislation either. So challenging legislation is a long and involved process that will not be guaranteed to change the law at the end of the day.
I don’t really know what the practical effect of that has been over the years - others may be in a much better position to answer that question - but for all these reasons it may well be that compliance with ECHR may not be top of mind in cases where the UK government finds the ECtHR’s jurisprudence not to its liking. As a practical matter the ECHR is applied to government action through the domestic courts applying the HRA and the domestic courts follow their own jurisprudence in applying the HRA.
As I understand the Good Law Project’s website they propose to go to High Court (i.e., back to the trial level) and ask for Declaration of Incompatibility. They don’t say what they’re asking for the Declaration in relation to but I infer that what they’re asking the Court to say is that the EA as just interpreted by the UKSC is incompatible with the ECHR. Whatever happens in High Court there will be appeals.
The obvious issue of course is that the UKSC has just interpreted the EA precisely in the way that the GLP says is incompatible with the ECHR. Now interpreting a statutory provision is a different task from assessing its compliance with human rights standards. I can think of cases in Canada where appellate courts have interpreted statutory provisions in a certain way and then later gone on to say that the provision as they just interpreted it a few years ago is invalid because incompatible with the Canadian Charter of Rights. That said, I doubt the UKSC was doing that in this case. They seem to think that their interpretation of the EA makes sense on a normative human rights level and so I would be surprised if they then turned around in a few years to say it violates the ECHR. But of course they might, especially if the factual record on the new challenge as it works its way through the courts is better than the record on the last case seems to have been.
On a personal note it is very discouraging to see this happening in the UK. When I started looking UK-ward on these issues 20 years ago it seemed that the UK was well ahead of Canada on these issues and that competent people were quietly getting stuff done. Now we are seeing apparently intelligent people in the UK on all sides of the political spectrum apparently losing their minds on the issue and veering into frank transphobia. There seems to be cautionary tale here though what it is I am not sure.
I'm not arguing with you, I'm trying to understand the hysterical TERF position. Which appears to be around the idea that men exist who "fake" being women in order to get into spaces that are designated for women. It doesn't matter if there are 1 or a million of these "fake women", the thinking goes, it is unfair that they are taking away the precious female places and eventually all the "real women" will be pushed out by the "fake women"
Of course there are many logical problems with this, but they're not really countered by pointing to the low numbers of transwomen in politics.
This excerpt is worth noting.
They have their own numbers. The assertion that 34 million women (note trans women are excluded) “need and deserve” seems to assume that all women see this in the same way. That’s just not true.
And since when did did the human rights of any group supersede the rights of any other group?
There are alternative win-win framings - such as the whole of society benefitting from not stuffing people into one of two normative boxes. Or both boxes at the same time, as Victoria McCloud pointed out when she announced her legal action:
Also, The danger of wishful thinking? Maybe it was all just a dream.
UK law does not recognise non-binary genders. (For example, the ruling and recent appeal in the case of Ryan Castellucci.)
It seems to me that the Supreme Court's ruling in effect confirms that UK legislation has never accepted anything other than a dimorphic definition of sex. And no definition of gender other than relating to this definition of sex.
Note that this isn't the same as saying there are no protections under UK law for non-binary people. In Taylor v Jaguar Land Rover in 2020, an employment tribunal ruled that non-binary gender and genderfluid identities fall under the protected characteristic of gender reassignment in the Equality Act 2010: It appears that the judge in the tribunal was drawing on the following parts of the EHRC's own Statutory Code of Practice on Employment: Note that the EHRC's Statutory Code of practice on Services, public functions and associations additionally has: But it appears that employment tribunals don't carry the weight of case law. I don't know if Jaguar Land Rover appealed, but it looks like the Supreme Court's ruling might have moved the goalposts.
https://www.opendemocracy.net/en/5050/lgb-alliance-55-tufton-street-think-tanks/
https://transsafety.network/posts/profiled-lgb-alliance/
It's poor journalism that they were quoted at all without making clear that this is what they are. Propaganda think tanks fuelled by rich donors work by getting journalists to take them seriously when they are actually astroturfed groups. It's a widespread problem - outlets many people would think of as reputable news sources use and quote contributors from these murky sources.
Again one of the problems of this backwards court ruling is that in discussing it there's a danger of it getting us to repeat its false framing.
The rights of women and trans people (many of whom are women!) are not in conflict.
The whole way this propaganda campaign is set up is to get folk to repeat and take seriously the lie that there's a conflict of rights. There isn't.
I'm sure you know that Barney, but I'm just adding a bit of background.
From Critical Legal Thinking:
And from the unredacted part of Judith Butler's Guardian interview by Jules Gleeson in 2021:
I think they have been watching too many Carry On films, basically. I wish they'd get their minds out of the gutter.
It is however interesting to note that the principle 'garbage in, garbage out' applies to legal systems as well as to computer programming.
I really hope there will, eventually, be a win-win. But as things stand, there seems no option other than to pursue what adversarial legal avenues that may be available.
And in general, in response to your previous question, I am thinking what you are thinking!
Louise
I agree entirely about the BBC error in quoting from the spokesperson for the the LGB alliance. Actually the quote shows them up for what they are, but it’s a very strange interpretation of balance to include it. Or a very ignorant one.
Yes, I tear my hair. If I hadn't lived through watching this moral panic take off in the media I wouldn't believe the things I have to say to people now about how once reputable sources will feed their audiences absolutely toxic and distorted stuff on this without being clear about what they're doing.
Fears of litigation and terrible takes about how to do 'impartiality' play a role in it as well as the obvious bad actors.
In contrast I think culturally we all accept that people are constantly changing. Arguably I've had about 6 different lives within my life and many people have had major life changes such as divorce, bereavement, accepting their sexuality, changing religion etc.
Insisting that people are just one thing and can never change to be another thing is seen as nonsense. As my granddaughter would say, this is just a social construct. And society has changed so the construct needs to catch up.
“To ensure it complies with the law” they say.
All the "interesting" cases involve the places where people's rights meet. They inevitably involve weighing the rights of one person or group of people against the rights of another person or group of people, and deciding which ones take priority.
Absolutely. The more one thinks about, the more one realises how many places there are where rights will abut and challenge each other.
The savage irony is that for the most part, the clash between trans rights and women's rights is a myth.
AFZ
It's not clear to me that the European Court of Human Rights is inherently adversarial (in the way that it hears representations from both parties).
In any case, I'm not suggesting that legal avenues should not be pursued, I'm suggesting that using an adversarial metaphor isn't appropriate. As you note, this is not a case in which for one group of people to gain human rights, another group of people must lose them. It is part of the struggle for equality for all - it is not an inherently win-lose scenario. But portraying it as such is an established tactic of reactionaries and anti-progressives, who seek to set different disadvantaged groups against each other, as though there were only so much "rights" to go round.
I'm also suggesting that it might not be appropriate to use an analogy of one person inflicting physical violence on another, in the context of (legislation for protection against) discrimination, harassment and victimisation. The lived experience of transgender and non-binary people often includes actual physical bullying and violence, as is the case for many of the issues addressed in Epiphanies. But fighting for freedom from the threat and reality of physical violence is still a fight.
Apart from that...
I think it highly unlikely that either of us thought what Michael Howard was thinking.
I thought I'd made this point here earlier but I might have thought about it and not written it down. Several times in my life I have experienced people who could be in a position to help increase diversity for underrepresented groups but don't. And there reasoning has been a variation of "why should I help other people from other groups access when that would mean less jobs for people like me and specifically me."
It's a small minded zero-sum view perpetuated by people who are aware that they lack the talent to do something that they've only achieved by privilege. But it isn't unusual.
Quite right! Trouble is that my daughter, understandably, now feels she’s at war. So pugilistic metaphors, which I agree rationally are not appropriate, are on my mind. There are people who I’d like to punch. My emotions may sometimes get the better of me.
My daughter in her letter to her MP signed off “in anger and fear”. I feel that too. Seeing someone I love, who has been very patient and courageous throughout her transition, become a target of prejudice, is really very hard to bear.
None of this is theoretical for me.
I wish I knew what to do to make it nontheoretical for others. My dear friends are leaving the country or have already left. I'm again feeling really glad that I never told the government I'm NB. How do so many cis people think this is still safe and okay. And what the fuck can we do to wake them up?
Many thanks. It’s a hard time for you too.
Gwai
I’m not sure. The history of those dehumanised because they are somehow seen as both different and threatening is not encouraging.
Some get martyred. Some hide on the catacombs. Not everyone is called to be a martyr. Keeping your head down and waiting for a better, more understanding, day is also a calling too.
But given that I’m cis, I’m going to make a lot of dissenting noise. And see what that does.
Yeah. We had a request last year from a school to take part in a UK gov survey which, among other things, would have asked kids about their gender identity. I may have seemed a little paranoid saying that it was a really bad idea to give the UK gov a list of our trans and non-binary pupils but I'm glad I said it and the survey was never mentioned again.
Anger and fear are what have been driving this whole process. It hasn't been about a group of people fighting for their rights, it's been the stoking up of anger and playing on fears and pointing the finger at a different group of people, as if finding someone else to blame for their own fear and anger will solve the complexity of causes that bring it about. This isn't to say that the fear and anger aren't real, but the origins of that fear and anger are rather more deep-seated than can be addressed by identifying a threatening concept - gender - and making judgments against a group of people who are just trying to live their lives with identities and expressions of being that are illuminated and enabled by that concept.
I agree about the irony!
But the general point is fair. However carefully the UK Supreme Court may have considered the comparative human rights claims in its judgment, the absence of trans testimony in its hearing does cast doubt on the fairness of its processes. And the subsequent actions of the EHRC cast further doubts on the fairness of its processes in considering comparative human rights.
These doubts have a legal basis and deserve a further test in law.
I doesn't seem impossible to imagine a bank colleague who is unaware that their colleague is trans. This ruling has now apparently insisted that they out themselves to their colleagues due to the toilet door they go through. Which could easily lead to workplace bullying and discrimination.
If there is a TERF on staff who is determined to be a witch-hunter general, both cis and trans women could become a target depending on their appearance.
There's a workplace I know and occasionally visit which has a block of toilet cubicles. Whether they are "rooms" or "cubicles" is a bit debatable as they are fully contained with no gaps at the bottom of the doors or dividers and include sinks.
The employer originally had these as unisex facilities. After some pressure the bizarre compromise was that some were labelled as male, some female and some unisex.
They're all exactly the same.
I'm in a different situation but I've decided I'm taking them on. I wrote to my MP. I've got my selection of trans pride and progress pride flag badges to wear when out and about and they can come at me if they clock them and I'll chum any trans woman who needs it to the loos and help her find safety or stand between her and them if I can, and help her get away if need be. And the same for any woman policed for her appearance.
I'm short and disabled and long haired and tend to wear dresses ( but the walking stick can come in handy) so I have some advantages - and I'm happy to do what I can for others.
It's a small thing we all can do - get pride pins and wear them - let the bigots see they don't speak for everyone. Back in the 1990s I used to wear my red AIDS ribbon to work and got some run ins over it - but it makes it visible that they don't speak for everyone.
I’m seeing my MP in just over a week. I agree with Louise about visible support. It’s definitely a Civil Rights issue.
Over the past few years, there's been a very big push for inclusivity. By which I mean, primarily as an employer. Trusts I know have adopted rainbow branding across lots of corporate ID, have embraced national and local events like Pride. I've even been asked about it in consultant interviews. The Trust I currently work in has made most toilets unisex.
I continue to think the EHRC interim guidelines both obscene and ridiculous but I also imagine most NHS organisations will feel significant pressure to conform.
AFZ
*"Interesting" obviously has multiple meanings here.
I deeply hate that she can't fit into her comfort/convenience/view of self as easily because of those jerks.
Radio 1 just had an interview with a spokeswoman for ‘campaigners’ saying how great this was and they hoped men’s football would welcome the trans players (28 IIRC the FA saying would be affected).
I was waiting for the challenge to her about the women’s teams ‘welcoming’ those trans male players born female, but Radio 1 missed that fairly obvious point.
Personally I can't see that there are many sports where the participants are essentially equally matched where the sex matters.
I heard someone mention Park Run. Which I thought was a leisure activity where people with a range of abilities run around a park. Why does it matter what your sex is? An olympic athlete is going to knock the hair off anyone who competes in a leisure run so the notion that there is or can be a "record" is utter nonsense.
Although I wouldn't be surprised if people on the ground use the FA's ruling to put pressure on non-FA football events.
I had a horrible thought that there may well be pressure on the council-run leisure centres to ensure that those using the facilities (tennis courts, all-weather football pitches etc) meet the purity standard.
I've played squash and badminton etc loads of times in mixed spaces. Not in any formal club or competition, where I think there might be busybodies from outside telling teams what they should do.
I know that Transphobes are not known for their consistency but how can you demand this when by-definition, it is not competitive???
Competitive sport actually is a complex question and that is true of athletes with Differences in Sex Differentiation diagnoses as well.
But in ParkRun, what we see is people whose lives are in no way affected by the presence of Trans people finding an excuse to make the lives of Trans people worse...
It's a perfect epitome of where we are, isn't it?
AFZ
I was particularly struck by this
I’ve already spoken favourably about the Green Party. The Liberal Party seems to me to be keeping a low profile. Which other organisations are sticking up for trans human rights?
The Good Law project has received mixed comments here. Understandably so I guess. But I find little to argue with in that link above. I wish more people were seeing it and saying it.
Perhaps we should all be issuing counter-challenges to the challengers, on the grounds that a Real Woman would be far too busy worrying about the length of the queue and whether there was any toilet paper left to wonder how many of the people standing next to her were born female.
*apologies if this is the wrong terminology, no offence is intended
Entirely true.
Moreover a man or group of men harassing a woman to 'prove she's a real woman' is orders of magnitude more likely than a woman being harassed by a trans woman.
Irony of the most savage kind.
It's perfectly good terminology - but thank you for thinking about it!