‘The Supreme Court Trans Verdict Is a Victory for Uncertainty, Division and Harassment’

Last week the UK Supreme Court decided that I was legally male. It no longer matters what papers I have, what medical interventions I’d had, or how I live my life. It was important to strip me of recognition to bring “clarity” to the law.

What the Court also tried to say was that the impact of their ruling was extremely limited, as trans people would still be protected by provisions in the Equality Act. Lawyers have tried to give support to emotionally devasted trans communities by parroting these statements.

But all of it, the ruling and the attempts to limit its impact, is fundamentally untrue. The highest court in the land can’t lay out detailed arguments supporting their view that some women are legally male, and then say but it only has impact on one specific law in Scotland.

Sure enough, the following morning, the Chair of the Equality and Human Rights Commission was on national radio saying the ruling clearly meant that trans women should not use any women’s single-sex spaces or facilities. Because trans women were legally male, if they used such spaces, the spaces would cease to be single-sex.

‘The Sullivan Review Treats Trans People as an Inconvenience Whose Experiences Can Be Dismissed as Invalid’

The Government has accepted a skewed report authored by people with ‘no skin in the game’, argues Helen Belcher

Helen Belcher

And later on Thursday the British Transport Police announced that, when strip searches of trans women were required, they’d now be carried out by male officers. Well, that happened a lot quicker than I thought it would. It doesn’t matter how we look, what paperwork we have or what medical procedures we’ve undergone, it’s men’s hands around our privates now.

Other women, the ones who the Supreme Court still recognised as legally female, started to ask questions. How would the BTP know who was trans and who wasn’t? Some trans women are physically indistinguishable from other women. What would happen if a woman who wasn’t trans couldn’t prove they weren’t trans? After all, weren’t all trans women simply going to deny the fact?

Legal clarity – apparently.

The UK has moved into a space where all women, trans or not, will now be legally judged on their appearance. You can’t rely on paperwork. The Gender Recognition Act allowed trans women to obtain a birth certificate marked with an F sex marker, so birth certificates aren’t proof. Some trans women will have vaginas, so that’s no use either. Nope. And what happens if a woman discovers she was born without a womb? How does she prove she isn’t trans? Don’t think people are arrested without due cause? Think again. Men’s hands around women’s privates – legally, just following procedure. Just hope they don’t share the videos, again.

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Helen Belcher

Remember that ten years ago, some papers were still using the “Trans or Woman” “game”. It’s pretty much impossible to identify trans women as trans all the time, despite what the haters say. Heck, they even think Michelle Obama and Brigitte Macron are trans, so they clearly can’t always tell.

Instead people are going to base decisions on how someone looks, moves and sounds. It won’t catch some it’s supposed to, and it will catch some it’s not. But a small price to pay, according to the trans abolitionists who have pushed and pushed and pushed for this outcome.

And that’s why I don’t buy the arguments that this ruling is not a huge backwards step for all women. Where BTP tread, others will inevitably follow. Because the trick these campaigners use is to sue cash-strapped organisations. Women of the UK, you are advised not to stand out. You must only express yourself within gendered norms (which trans women will also follow and which are likely to start tightening). Don’t witness or be a victim of any crime. Don’t travel. Don’t fall ill. Probably best if you stay at home.

A massive victory for women’s rights – apparently.

And that’s not taking into account that, by essentially gutting the Gender Recognition Act where it matters, the UK has gone back over 20 years, back to the point where the European Court of Human Rights ruled that the UK breached trans people’s fundamental right of privacy. In the intervening 20+ years, if anything, the European Court has strengthened its views regarding the privacy of trans people. The UK can’t reasonably hope for any leniency from that Court. Trans people have a long established right to have meaningful legal recognition in the gender we live in. The Supreme Court has just disagreed.

Justice Without Us

For a ruling that was always going to be all about trans people and was motivated by – let’s be generous – “concerns” about trans people, it is astounding that the Supreme Court decided it would not hear from trans people. It did, however, agree to hear from groups whose stated intentions include removing trans people from public spaces and gutting the Gender Recognition Act. “Justice” about us but without us. So it’s not surprising that the ruling contains huge swathes of the contorted logic and evidence-free language used by these groups.

As an example of that logic the court inferred from the Equality Act that only “biological women” could breast feed, ignoring that just a year ago there was an almighty row in the UK press about trans women who were breast feeding their children. Using the Court’s logic, this group of trans women are also “biological women”, despite being biologically no different from many other trans women. So not as clear-cut as the Court assumed. Trans people could have told them that, but they didn’t want to hear us.

Nowhere did the Court give a definition of “biological” so let me save you the bother. Don’t concern yourself with actual biology, medicine and science. It always boils down to what’s on your original birth certificate. I give my apologies to the little girl who was recorded erroneously as male on her birth certificate just a few months ago. And in pursuing a legal binary identifiable at birth, the Supreme Court persists with the legal fiction that intersex people simply don’t really exist – everyone is apparently and undeniably male or female. Intersex people could have told them that was problematic, but the Court didn’t want to hear them.

I, and every other trans woman I know, will continue to use women’s facilities. I’ve done it without any problems for over 20 years. I’m not going to stop now. The risk I now run, which wasn’t the case before Wednesday, is that I now fear harassment and worse should I do so. The EHRC’s suggestion that I fight for a separate space for trans people isn’t going to happen. That wouldn’t make it any safer. Who is going to police entrance to these facilities? What would stop a man with rape on his mind declaring he’s a trans man just so he can enter the same space as me? In any case, the organisations who I’d need to rely on to provide these facilities are already strapped for cash. It just isn’t going to happen.

And, like the USA, I’m now seeing trans women cancel their plans to visit the UK, for the same reasons I won’t now travel to the USA, joining the Middle East and Russia as no-go destinations. Why would they place themselves in danger? And it might be small at the moment, but as it becomes known that this interpretation of the law actually impacts all women, it will only grow.

We had a system that worked. Right wing agitators then tried to create fear, uncertainty and doubt. They used occasional crimes to frame all trans people as threats. They distorted statistics and used simplistic sound bites. The mainstream press unquestioningly amplified their message. Those who didn’t agree were shamed then silenced, removed or simply not asked for comment from the press. This was always the agitators’ plan, whatever they said. The establishment fell for it. And now we are back to a system that will only work for men.

As Michael Rosen wrote, “fascism arrives as your friend. It will … remove anything you feel is unlike you.” Welcome to Gilead, if it’s not in fact the 1930s.