Hello I am a non-binary person from terf island. I’ve seen a few misconceptions about how the decision concerning the Equality Act came about. I think it’s important in the wake of this devastating decision to point our activism in a useful direction and make sure people are aware of the protections they still have. So I’ve written this.
How the decision came about:
The UK Supreme Court (UKSC) does not work like the Supreme Court of other nations like America. It cannot overrule a direct act of Parliament. Instead, it interprets the meaning of legislation to resolve legal issues. This is under the logic that judges arent elected, MP’s are, so are better placed to make policy decisions. They are also democratically accountable, unlike judges, so they can be voted out if they do something the public doesn’t like (this comes up later.)
To make a long story short, the decision is a result of this interpretive role. The Equality Act does not define sex or gender. Therefore the court had to decide a definition for what Parliament intended to be the outcome for cases like this using the legislation. They found (due to things like the use of ‘sex’ in the section granting protection on pregnancy status, makes more sense in the judgement) that the Equality Act could not be read as certified sex, instead it could only be read coherently by using biological sex.
Why does this matter? Well, it means that the decision is limited to the meaning of who is protected under ‘discrimination based on sex’ in the Equality Act for protection against things like sexism. Don’t get me wrong, still dire, but it is not removing the recognition of trans peoples genders entirely.
It is stated in the judgment that ‘gender reassignment’ is not limited to those with a gender recognition certificate. In this way, while still awful, the decision is not as bad as first seems. Trans people still have protection via the category of ‘sexual reassignment.’ This is important to reiterate. You are not completely without protection, if you face transphobic discrimination, you still have some legal protection. This needs to be said so people continue to bring action for transphobia they face and so transphobes don’t think they can get away with transphobia. Not knowing what protections remain helps bigots because they will go without consequence.*
*(Keep in mind that obviously bigoted people still get away with their actions when legal action is brought. However, the point of deterrence and the ability to bring a case under public scrutiny by bringing it, regardless of outcome, is important)
First of all we cannot remove the court of all blame. Yes, they were interpreting legislation however the process of doing that was REALLY flawed. They refused to take evidence from trans people. This should have been considered because of the UKSC’s power to make a Declaration of Incompatibility. Basically, this says ‘Parliament this Act violates ECHR, fix it.’ Because of the impact this decision is going to have on trans people when it comes to things like sex segregated spaces (see below), I think making one should have been considered at the very least. Really, I think here one should have been made.
The court also stated that the Act recognised a conflict between the interests of different protected characteristics. This reveals that the Act is written in a manner that pits the interests of trans people and interests of cis people against each other. This is an issue. Trans people and cis people (particularly cis women because that’s what this case arose about) are not enemies. Blaming trans people is obviously scapegoating to protect other forces that harm both groups. Really, having sex and ‘gender reassignment’ as two categories rather than ‘identified gender’ in an Equality Act was bound to cause this conflict. We need a better Equality Act that doesn’t pit trans people and ‘women’s interests’ against each other.
This judgement just highlights how poor the Equality Act is in terms of protecting trans people. Although only being from 2010, the Equality Act has bases in the Sex Discrimination Act from 1975. This means there are far older perceptions of trans people at play here. These flaws have been revealed by this case.
There are provisions in it relating to sex segregated spaces with no consideration about how this would impact the ‘gender reassignment’ category, despite sex also being used in defining eligibility under that categories’ protection. We’ve been acting on an unstable presumption that trans people were included. This has collapsed in this case because of how rules of interpretation function. This shows we need a new Equality Act, one that doesn’t leave space for interpretation that trans people are any less of a man or a woman and thus don’t deserve equal protection.
This has been ceased upon by transphobes to be a ‘victory for women’ and authorising same sex spaces. People can explain far better than me why the former isn’t true. However, sadly, the latter is true. We can only wonder what the UKSC will decide when a case gets brought concerning the ‘gender reassignment’ categories and these spaces. I can only hope a declaration would have to be made then, or ECtHR would rule against the UK. However, these future events do not impact the harrowing impact this is going to have before any case like that is brought. This court case, despite the above, is still undeniably tragic.
There is a point to make that the process doesn’t matter, the outcome is still the same. However, it is important to remember that democratic accountability element. My fear is that the way this has been reported is allowing politicians to hide behind the court for their own failures. Failing to not consider how trans people are protected by the Equality Act. Failing to pass further trans rights legislation like self recognition. Increasing restrictions on gender affirming care. They can point their fingers at the courts and say ‘look they‘ve okayed this!’ In reality, all the court has done is highlighted Parliaments sloppy work in protecting trans people because of the way they had to interpret the legislation.
It is important to point out the flaws are within the Equality Act. Minority groups rely on this legislation, including trans people. This case has highlighted it does not represent trans people or suit our needs. We need an Equality Act that is capable of protecting us. Not one as flawed as the current one so we are able of relying on it, without the semantics of ‘oh what does sex mean.’
Obviously, the court is not blameless. I’ve mentioned why. However, we cannot do anything about who’s on the court. We CAN do things about what legislation Parliament makes. We cannot let them hide behind the UKSC. Doing so means they avoid the democratic accountability that is the whole reason why the court has to follow the meaning of Parliament.
We need to channel our anger to places where we can make an impact. Write to your MP demanding a better, comprehensive Equality Act that protects trans people. Legislation that doesn’t view a persons biological sex as determining whether they are a man or woman. Legislation that doesn’t pit cis women and trans people against each other.
Sign petitions. Look up and attend local protests. When the time comes, even at council elections, vote for trans friendly candidates. Call out transphobia. Donate to charities which have platforms to give better resources so they can try and petition legislators.
This situation is dire. Trans people need a hell of a lot of comfort after this. But we need to know what protection we still have so we can use them. We also need to know where the problem lies so we can work for change as effectively as we can.
Know that you are valid. And that you can fight.
yousharknotpass
vaporwave
baratheonpilled
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