Warwick TransSoc statement on the recent UKSC judgement

This article is the opinion of another organisation and is not affiliated with The Boar.

We, the Warwick Trans* Society, are appalled by the recent UK Supreme Court Judgement.

References in square brackets are references to that paragraph of the Judgement.

Overall, the Judgement means that “sex”, within the Equality Act 2010, means the sex that one is assigned at birth and can only be “male” or “female”. It also found that disapplication of section 9(1) of the Gender Recognition Act 2004, where Gender Recognition Certificates (GRCs) change a person’s legal sex for all purposes, need not be explicitly stated. In the specific context of the complaint at hand, this means that trans women – with or without a GRC – do not count towards a “50% women” quota.

To begin, the Justices assert: “For Women Scotland (“the appellant”) is a feminist voluntary organisation which campaigns to strengthen women’s rights and children’s rights in Scotland.” While For Women Scotland do claim to be feminists, any person or group who does not support all women is not feminist by definition. They go on to assert that “Sex [Matters’] object is to promote human rights where they relate to biological sex” at [32], which is a common transphobic dog whistle and untrue. Scottish Lesbians, the Lesbian Project, and the LGB Alliance are also mentioned at [34]; these are all transphobic hate groups. We find it pertinent to mention that the general public does not support the LGB Alliance, with nearly 45,000 signatures against their charity status. The LGB Alliance also has close ties with the Heritage Foundation – writers of Trump’s dystopian “Project 2025”.

We find it even more disgraceful that the Justices did not consult trans people or organisations before coming to their judgement.

As an aside, it’s worth mentioning that the UK refuses to recognise non-binary gender identities, most recently in the case of R (Castellucci) v Gender Recognition Panel. This goes against the instructions of the United Nations and Council of Europe. The Judgement’s conclusions rest on the decision of whether “sex” in the provisions of the Equality Act 2010 refers to one’s so-called “biological sex” or is inclusive of those with a Gender Recognition Certificate [160-161]. This also relies on their decision, at [99-104], that section 9(1) of the Gender Recognition Act 2004 does not apply to the Equality Act 2010 (more on this in a later section).

What is “biological sex”?

One would be right to ask how the Justices define “biological sex”; they state at [7]: “We also use the expression “biological sex” which is used widely […] to describe the sex of a person at birth.” They assert that this is supported by the Equality Act 2010, in that: ‘The definition of sex in the [Equality Act] 2010 makes clear that the concept of sex is binary, a person is either a woman or a man.'” This claim, of course, goes against contemporary medical science, is factually incorrect, and is commonly made with malice by transphobic people and groups. Needless to say, it has several flaws.

The clearest flaw is the idea that “the concept of sex is binary”. This completely ignores the existence of intersex conditions (also referred to as differences of sex development). It is estimated that between 0.3-1.7% of people have such conditions – a not unsubstantial figure. This raises concern, as the ignorance of such a well-documented condition calls into question the “biology” that the Justices use later to support their decisions.

The Justices’ definition of “biological sex” as “the sex of a person at birth” nullifies most of their further justifications. Primarily, they blur this definition many times throughout the Judgement. For example, the Justices assert that a “group of (biological) women and girls (or men and boys)” have “shared biology leading to shared disadvantage and discrimination faced by them” that make that group “distinct”, as compared to the “complex, heterogeneous grouping” that inclusion of trans people would result in. However, sex assigned at birth does not directly lead to “shared biology”. For the most obvious example, trans individuals who go through sex-reassignment surgeries would share much biology with cisgender people of the same gender. Hormone Replacement Therapy (HRT) for trans people also has the effect of changing secondary sex characteristics. Intersex conditions are another obvious example of why this “distinct group” is also, in fact, complex and heterogeneous.

This expands to their assertion that the Equality Act 2010 must refer to cisgender women, as provisions for women include protection from discrimination based on breastfeeding. It has already been demonstrated that trans women are able to lactate and therefore breastfeed. The Justices also state that “as a matter of biology, only biological women can become pregnant”. Going on their own definition of biological sex being that assigned at birth, the existence of intersex conditions also immediately disproves this. In one case study of an individual assigned male at birth who became pregnant, the individual decided to re-assign her gender after the pregnancy was discovered. This person was able to conceive and deliver a child, and yet under the Justices’ definition would not classify as a biological woman. To assert this statement with such confidence shows a concerning lack of awareness of progress in medicine. This is nothing to say of the disgusting reduction of cisgender women to their ability to become pregnant.

More on the Judgement…

At [172], the Justices assert: “We can identify no good reason why the legislature should have intended that sex-based rights and protections under the [Equality Act] 2010 should apply to these complex, heterogeneous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.”

Referring to GRCs at [173], they go on to claim the following, working on examples given by Sex Matters: “[…] it makes no sense for conduct under the [Equality Act] 2010 in relation to sex-based rights and protections to be regulated on a practical day-to-day basis by reference to categories that can only be ascertained by knowledge of who possesses a (confidential) certificate.” Going further, they rely on the fact that only “biological women” can become pregnant as evidence, among other examples in the Act, that “sex” refers to “biological sex” (see above).

They go on to repeat the common anti-trans argument that one’s sexual orientation relates to sex and not gender, claiming that a gender-based approach would carry an “inevitable loss of autonomy and dignity for lesbians” at [207]. They also repeat the disproven claim that recognising GRCs is “having a chilling effect on lesbians who are no longer using lesbian-only spaces because of the presence of trans women”. We should note that in the UK, only 6% of cisgender lesbians, and 4% of cis bisexual women, view trans people negatively. In essence, the Judgement relies on the assertion that “sex”, within the Equality Act 2010, cannot mean anything other than “biological sex”. This is the conclusion that the Justices come to at [266]: “A person with a GRC in the female gender does not come within the definition of “woman” for the purposes of sex discrimination in section 11 of the [Equality Act] 2010.”

Sex and Gender Reassignment

The Equality Act 2010 provides protections to people based on “protected characteristics”, including their sex and status of gender reassignment. For one, people are protected from direct discrimination based on these protected characteristics; importantly, including where the perpetrator perceives the victim to have a protected characteristic.

As previously stated, “sex” now refers solely to the sex one is assigned at birth. A person has the protected characteristic of “gender reassignment” where that person: is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

The Judgement then relies on these to show that trans people still have protections – both in being perceived as a member of a sex and under gender reassignment [253]. This is quite a weak argument for protection, though, as trans women are not inherently protected as women, trans men are not inherently protected as men, and non-binary people remain unrecognised.

The Current Landscape

We find it important to recognise the statement of the Independent Expert on protection against violence and discrimination based on sexual orientation and gender identity (herein, “the UN Expert”) regarding the “Gender Recognition Reform (Scotland) Bill”:

Within the United Nations Human Rights System, there is consensus on the imperative of legal recognition of gender identity and on the related standard of self-identification; it is my opinion that the Bill brings the Scottish system closer to conformity with those standards and, therefore, it is an act of compliance with obligations incumbent upon the State under international human rights law.

This bill would have allowed Scottish residents over 16 years old to obtain a GRC where they have lived in their “acquired” gender for 3 months and intend to continue forever. The UK government used special powers – for the first time in history – to prevent the enactment of this bill. The UN Expert goes on to expand on the current state of gender recognition under International Law, with the UN consensus being that “gender identity must be recognised by law, and implemented under a standard of self-identification”. Furthermore, in 2016 the United Nations High Commissioner for Human Rights found that states should provide legal gender recognition for transgender persons that:

• Is a straightforward administrative process – based on a simple declaration and without medical requirements,
• Recognises one’s self-defined gender identity, including non-binary identities, and
• Includes the ability for minors to gain legal recognition of their gender.

In the same vein, states should ensure that all transgender persons are protected, including those who have not gained legal gender recognition. This is all supported by the Commissioner for Human Rights of the Council of Europe.

UK Gender Recognition

Formal, legal, gender recognition in the UK is provided by the Gender Recognition Act 2004 – where people can apply for a Gender Recognition Certificate (“GRC”). Sections 2 and 3 of this Act outline the evidence required for a GRC application; simplified, these are:

• Two letters from medical practitioners,
• Evidence and details of a diagnosis of gender dysphoria,
• Evidence of living in one’s “acquired gender” for at least two years,
• Details of current/planned gender affirming care,
• A statement from the person’s partner, where they are married or in a civil partnership, and
• Any other evidence that the panel sees fit.

This lengthy and invasive process is inhumane and clearly contrary to the international advice above. Furthermore, diagnoses of gender dysphoria can only be made in the UK by specialists in Gender Identity Clinics (“GICs”). These clinics are grossly underfunded – with their scope being limited, care withdrawn, and wait times upwards of four years.The Good Law Project has also found that the NHS is withholding its report on preventing suicide among trans youth, at a time where trans kids can’t access their medical care.

Conclusion

We are in a worrying and ever worsening time. This judgement is yet another step in line with the government’s efforts to rid of trans people. This government’s actions and inaction have caused, and will continue to fuel, the hate directed towards trans people and, ultimately, their deaths. With both trans hate crimes and suicides on the rise, we are here to support members of our community, and we ask for support from allies and friends to stand with us now more than ever. To our trans siblings: stay safe, focus on the good things in life, and things will get better.

Solidarity,
Warwick University Trans* Society