Why I worry this Supreme Court ruling will be used to delegitimise trans people

And why Parliament ducked its responsibilities

I am loath to write anything about the tension which has built up between trans and women’s rights, for both a noble and more ignoble reason. On the more virtuous of the ledger, I mainly feel I have relatively little to add. As a man, who lives as a man, who has never so even begun to question my own gender identity, and who has only vicarious experience of the problems women face, I have no direct experience or wisdom to offer of the discrimination and struggles faced by either group. That is not in itself prohibitive from my saying or writing about anything- I write a lot about Ukraine and I’m not directly affected by that, but it is something of an encumbrance in a debate which is so charged, and where one’s status as an outsider can be used as a means of delegitimisation. That adverts to the less noble impulse: the sheer toxicity of the debate overall, and the ease which comes with ducking out.

This, however, is not an impulse I much admire in myself. Moreover, it is probably part of the problem with the tenor of the debate overall. It is dominated by profound ideological extremes, people who have made offence into a mode of being, and attempt to ostracise and silence others. Therefore, here goes nothing.

The ruling handed down by the Supreme Court today is already being described as “landmark”, even though in judicial terms, its scope is relatively narrow. Simply put, the Court has unanimously adjudged that trans men and trans women are not included in the sex based protections of the Equality Act 2010. They say that the Act only makes sense if one concludes that Parliament meant to say that when it talks about “sex” and the protections against sex based discrimination, it meant only women who were born biologically female. I won’t go into the details of the reasoning of the judgment here, nor its immediate effects, which will be covered comprehensively elsewhere. Suffice to say that the judgment, in a legal sense, settles the question that trans women will not be given access to women’s only spaces, including hospital wards, prisons, refuges and so on. For the record, I don’t believe this is an absurd outcome. It is probably simply a matter of practicality to recognise that trans women and men will in some circumstances have to be treated differently to biological women and men. That is not to say that trans men and women’s status in everyday life should not be protected, respected and observed.

And this is where my concerns come in: they are political, not judicial. In terms of the process of what has happened, it is an absurdity that the Supreme Court had to rule on this at all. Parliament and politicians at any point, since the beginning of this judicial process, could have made clear what it meant, using its statutory powers. Three parliaments, for political reasons, decided to duck it. This was pusillanimous. Allowing these things to be decided by the courts is problematic. First, it creates the impression of constitutional permanence which does not exist in our system. Too many believe we have the same model as the United States, where their Supreme Court has the last word. In our system, that privilege is Parliament’s. Parliament should not be following the Court and relying on it to determine what it meant: it should have done that for itself, one way or the other. I note that the usual critics of so-called “judicial activism”, are curiously quiet today.

This is not just damaging for Parliament’s authority, it is damaging for the public discourse. Lord Hodge, who delivered the judgment, was at pains to stress that this was not a victory for one side or the other. But the words had barely escaped his lips before the champagne corks were popped and the jubilant chorus of ‘Auld Lang Syne’ began to waft in from outside the court. The nature of a judicial ruling, the way we think about it in our popular culture- a guilty or not guilty verdict, one side triumphing over the other, is always, if you’ll forgive the use of the word here: binary. It was instantly perceived and portrayed as a victory for women over that of trans people, even though some of the former insisted it was not.

If Parliament had debated and decided, opinions could have been heard, a consensus might have been reached- that is what the Parliamentary process is for, and one which can by definition be revisited by a future parliament. Instead a court judgement has been issued, which has an air of finality to it, and where the risk is that its meaning is twisted and goes far beyond the relatively narrow issue of jurisprudence which was being contested. I suspect that the most fevered anti-trans voices and media groups will use the judgment as a battering ram for their own prejudices- that they implicitly and sometimes explicitly claim that the court has proved them right: that trans men are not really men and trans men are not really women, that they should not be treated as such in any circumstances, and they’ll hint that they have the seal of the Supreme Court to prove it. This is especially risky given that our media culture on this issue is so toxic. Trans people are often othered and portrayed as a far bigger part of our society than they are, as being responsible for a far greater share of women’s ills than is the case and occupy an outsized role in our media debate. These last years have seen an elite moral panic settled on British (and American) discourse, which is entirely discordant with public opinion, which actually remains measured.

Again, this is certainly not what the Court has said nor what it intended. But it is undeniable that the ruling does effectively create a two-tier system: even if a trans person has gone through the process of obtaining a Gender Recognition Certificate- it still does not fully count in one of the UK’s most important anti-discrimination laws. We have embedded in law that these people on some level, cannot escape their biological sex. Yes, as Lord Hodge said, there are legal protections for trans people in the Equality Act: you can’t discriminate against a trans person because they’re trans, but being trans does not legally give you the right to be treated as a woman born biologically female. The state is treating you as a sub-category of person.

That will be traumatic to many, and the media would do well to remember that, which they won’t. There were no easy answers here: it is true that women and lesbian's groups’ right to association would have been undermined had the judgment gone the other way. But the complexity makes a political process more important. If our national discourse been more measured on this subject in recent years, I might have been more hopeful that the judgment might have acted as a starting point for some consensus and outreach. Instead, I fear this will be the beginning of a maximalist agenda to further undermine and often insult trans people, and their status in society. With Trump’s victory, the ideological winds are finely attuned to this purpose. There are many well-meaning people who welcomed today’s judgment who do not wish trans people ill. There are many more who are at best indifferent to them and more still who have little more than thinly veiled bigotry. Someone once said that “Prejudice, not being founded on reason, cannot be removed by argument.” We might be about to find that it can be made legitimate by a Supreme Court judgment.