Author: Naomi Cunningham

Troubling with Butler

I hadn’t read any Judith Butler until a couple of days ago – partly I think on the back of an unexamined assumption that I wasn’t clever enough.

But then a friend with whom I was trying to pick an amiable fight about women’s rights and trans rights told me that Butler’s interview in last Tuesday’s New Statesman encapsulated their views, and sent me a link. So I took a deep breath and read it.  This blog post is a slightly edited version of the comments I sent in response. (Sam Leith has done a more erudite job over at Unherd.) 

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I’m going to quote bits from the interview, followed in each case by my comments, and focusing on the passages that I find most questionable.  To some extent I’m cherry-picking, but I think I quote enough of the article to give a fair representation of what she is saying.

I want to first question whether trans-exclusionary feminists are really the same as mainstream feminists. If you are right to identify the one with the other, then a feminist position opposing transphobia is a marginal position.

She sets up an opposition here between “trans-exclusionary feminists” and “a feminist position opposing transphobia.” But that assumes – without troubling to prove – a proposition that neither I nor any other GC feminist I’ve ever spoken to would accept: that not accepting that trans women are literally women is necessarily transphobic.  All the GC feminists I know oppose transphobia.

I think this may be wrong. My wager is that most feminists support trans rights…

Yes – including me and all the GC feminists I know (which is quite a lot).

… and oppose all forms of transphobia. 

Yes to this too, so long as you give “transphobia” its common sense meaning of fear of and/or hostility to trans people. But I detect an expanded meaning in her “all forms” to take any factual disagreement about the nature or best treatment of gender dysphoria, or the variety of phenomena that fall under the ‘trans umbrella.’ If it’s transphobic not to believe that trans women are literally women, then yes – guilty as charged. I don’t believe that.

So I find it worrisome that suddenly the trans-exclusionary radical feminist position is understood as commonly accepted or even mainstream. I think it is actually a fringe movement that is seeking to speak in the name of the mainstream, and that our responsibility is to refuse to let that happen. 

What is this ‘trans exclusionary radical feminist position’? She seems to have added transphobia into the mix without defining it. This is a straw man. I’m sure there are some  feminists who are properly transphobic, but they are indeed fringe. I don’t know one.

…[W]e can see that a domain of fantasy is at work, one which reflects more about the feminist who has such a fear than any actually existing situation in trans life. The feminist who holds such a view presumes that the penis does define the person, and that anyone with a penis would identify as a woman for the purposes of entering such changing rooms and posing a threat to the women inside. It assumes that the penis is the threat, or that any person who has a penis who identifies as a woman is engaging in a base, deceitful, and harmful form of disguise. This is a rich fantasy, and one that comes from powerful fears, but it does not describe a social reality…

In other words, anyone who thinks that it is dangerous to let male-bodied people self-identify into women-only spaces is guilty of a transphobic assumption that all trans women are sex-offending ‘cis’ males in disguise, and their only purpose in entering women’s spaces is to offend. This is a familiar move in the debate: “If you won’t let me into the ladies’ it means you think that because I’m trans I must be a perv! Transphobe!”

But that misses the point.   Sorry, I’m going to rant a bit here.

The point is male violence, especially but not exclusively male sexual violence. We don’t want to exclude trans women from the spaces where we are undressed and vulnerable because they are trans, but because they are biologically male. They are members of the half of humanity that poses a far greater threat to women than the other half.

We want to exclude males because we are afraid of them. And we are right to be afraid of them. We don’t want to exclude trans women because we think they are more likely than any other male-bodied person to be violent offenders; but because there is no reason to think they are any less likely to be violent offenders. Men are unwelcome in women-only spaces not because we think all men are sex offenders, but because we know that almost all sex offenders are men.  

And remember that we are not just spontaneously afraid! We are taught from early childhood that men are a source of danger. We are told it is our responsibility to keep ourselves safe from the ever-present risk of male violence; with the barely-concealed message that it’s our fault if we fail. We learn to limit our freedoms. We try not to be out alone late at night. We learn to be alert to the possibility of being followed; not to make eye contact; to shut down drunken attempts to chat us up without provoking male rage; to walk in the middle of the road so that it’s harder to ambush us from the shadows; to conduct a lightning risk assessment of every other passenger on the night bus; to clutch our keys in one hand in case we need a weapon; to carry a pepper spray, or a personal alarm. And we learn the hard way that these fears that have been deliberately inculcated in us are justified. We are followed, leered at, flashed, groped, cat-called; and that’s those of us who get off lightly. Every woman has stories of male abuse.

We are systematically trained in fear.

And then we are told that we must lay aside, at a moment’s notice, the fears we have so obediently learned as soon as a person with a male body asserts a female identity.

Does this give you any insight into why we are so angry?

Let me make it even plainer. There is an attempt to force male bodies into female spaces where they are not welcome; and when we say “no,” that is met with rage, entitlement, abuse and threats of violence  – attempts to overbear our consent by force. There are unmistakable echoes of rape. When it comes to attempts to force women who have asked for a female health care provider to accept a trans woman to undertake an intimate procedure, the echoes become deafening. 

I am not aware that terf is used as a slur.

I find it difficult to forgive this. Is JB really unaware of the prevalence of abuse like “die in a fire, TERF scum,” “punch a TERF,” and (much) worse?    

I wonder what name self-declared feminists who wish to exclude trans women from women’s spaces would be called? If they do favour exclusion, why not call them exclusionary? If they understand themselves as belonging to that strain of radical feminism that opposes gender reassignment, why not call them radical feminists? 

That strain of radical feminism that does what? Caution about the ‘only affirm’ approach, especially in relation to children, for sure; and, speaking for myself, vehement and anguished opposition to treating unhappy children with puberty blockers. But opposition to gender reassignment per se? I’m not aware that that’s a thing at all.

My only regret is that there was a movement of radical sexual freedom that once travelled under the name of radical feminism, but it has sadly morphed into a campaign to pathologise trans and gender non-conforming peoples. My sense is that we have to renew the feminist commitment to gender equality and gender freedom in order to affirm the complexity of gendered lives as they are currently being lived.

Sweeping up “trans and gender non-conforming people” together like this is odd. I was gender non-conforming as a child, and in many ways I still am (as are many GC feminists). I don’t do cosmetics, or heels; I don’t own a hair-dryer; I’ve barely worn a skirt this millennium; I’ve always worn my hair short. I think femininity is a tedious time-consuming performance, and honestly I can’t be bothered.

And where anyway is the campaign to pathologise trans people? Every GC feminist I know wants trans people to live lives free of discrimination.

But I’d go further. Isn’t this projection? Who is really doing the “pathologising” here? Those of us who say “Dress how you like, follow your interests, you don’t have to fit into any set of stereotypes that are uncomfortable for you”? Or the people who want to treat gender non-conformity in children with powerful cancer drugs? The clinicians who would try to understand and ease the psychological distress of gender dysphoria and help the sufferer to live at peace in the body they have – or those who proceed direct to the conclusion that the body is wrong and must be fixed (“converted,” you might reasonably say) with surgery and hormone treatment?  

… Feminism has always been committed to the proposition that the social meanings of what it is to be a man or a woman are not yet settled.  

Well – in the sense that we don’t accept that being female (or male) should be allowed to limit anyone’s choices of career, interests, dress etc.  We tend not to think that sex should have much in the way of “social meanings” (i.e. gender) at all.

… It would be a disaster for feminism to return either to a strictly biological understanding of gender or to reduce social conduct to a body part ….

This is very confused. Gender, as I understand the word – and as I thought most educated people understood it – is the social performance. So no, I don’t have a biological understanding of gender; that would be a contradiction in terms. And who wants to reduce social conduct to a body part? No feminist I know. We don’t advocate a strictly biological understanding of gender. We want to abolish gender! We think it’s a set of regressive stereotypes.

… or to impose fearful fantasies, their own anxieties, on trans women…   

I’ve already ranted about this. “Fearful fantasies” is infuriating, though: those very fears that have been drummed into us all our lives.   

Their abiding and very real sense of gender ought to be recognised socially and publicly as a relatively simple matter of according another human dignity.

Well, up to a point: we can acknowledge and respect trans people’s desire to be treated for most purposes as if they were the sex they identify into. But there are limits to that, rightly enshrined in existing law, which are necessary for the privacy, dignity and safety of women and girls. 

The trans-exclusionary radical feminist position attacks the dignity of trans people. 

I can’t help noticing that she doesn’t explain how. Is it an attack on the dignity of a trans woman not to believe that she is literally a woman? If so, then I must plead guilty – because I do not believe that.  But do I need to share people’s beliefs in order to treat them with respect?  Is it an attack on the dignity of Catholics that I don’t believe that the consecrated host is literally the body of Christ? If not, why is this different?

As I remember the argument in Gender Trouble (written more than 30 years ago), the point was rather different. First, one does not have to be a woman to be a feminist…

I agree, though I accept that not all feminists do.

… and we should not confuse the categories.

I can get behind this. Let’s not confuse the categories.

Men who are feminists, non-binary and trans people who are feminists, are part of the movement if they hold to the basic propositions of freedom and equality that are part of any feminist political struggle. When laws and social policies represent women, they make tacit decisions about who counts as a woman, and very often make presuppositions about what a woman is. We have seen this in the domain of reproductive rights. So the question I was asking then is: do we need to have a settled idea of women, or of any gender, in order to advance feminist goals?  

Do we have to have a settled idea of what a fish is to set up a fish and chip shop? I would say yes. If a fish and chip shop sells nothing but Hello Kitty pencil cases, its customers will be confused, and disappointed.

Q: What do you have to say about violent or abusive language used online against people like JK Rowling?

I am against online abuse of all kinds. I confess to being perplexed by the fact that you point out the abuse levelled against JK Rowling, but you do not cite the abuse against trans people and their allies that happens online and in person. 

I’m not aware of any significant level of abuse against trans people and their allies by feminists – certainly nothing remotely approaching the abuse that was directed at JKR. Are you? Or is she talking about abuse of trans women by men? Because if so, to suggest by that means there is “abuse on both sides” in this way is fancy footwork, to put it mildly.

I disagree with JK Rowling’s view on trans people, but I do not think she should suffer harassment and threats. Let us also remember, though, the threats against trans people in places like Brazil, the harassment of trans people in the streets and on the job in places like Poland and Romania – or indeed right here in the US. 

She does indeed seem to be speaking of harassment of trans women by violent men!

So if we are going to object to harassment and threats, as we surely should, we should also make sure we have a large picture of where that is happening, who is most profoundly affected, and whether it is tolerated by those who should be opposing it. It won’t do to say that threats against some people are tolerable but against others are intolerable.

I don’t think anyone has said that. Have they? No, scratch that – plenty of people have said threats (and violence) against ‘TERFs’ are tolerable, because TERFs are as bad as Nazis (etc.) I can provide examples if need be, but I’m sure you know this is true. Can you think of any examples of GC feminists saying that threats against trans people are ok?

JB: … If trans-exclusionary radical feminists understood themselves as sharing a world with trans people, in a common struggle for equality, freedom from violence, and for social recognition, there would be no more trans-exclusionary radical feminists. But feminism would surely survive as a coalitional practice and vision of solidarity. 

If Hello Kitty exclusionary fish and chip shops understood themselves to be sharing a world with Hello Kitty enthusiasts, in a common struggle for equality, freedom from violence, and for social recognition, there would be no more Hello Kitty exclusionary fish and chip shops. But this would be awkward, because if you actually wanted fish and chips, all you’d be able to get would be Hello Kitty pencil cases. Back in the real world, fish and chip shops sell fish and chips, and feminists campaign for the rights of women.

It is painful to see that Trump’s position that gender should be defined by biological sex, and that the evangelical and right-wing Catholic effort to purge “gender” from education and public policy accords with the trans-exclusionary radical feminists’ return to biological essentialism. It is a sad day when some feminists promote the anti-gender ideology position of the most reactionary forces in our society.

This is just “nasty people agree with you so you must be wrong.” I don’t think it merits a reply, do you?

JB: I suppose a debate, were it possible, would have to reconsider the ways in which the medical determination of sex functions in relation to the lived and historical reality of gender. 

Eh? The “medical determination of sex”?

Biological sex is a binary like life/death is a binary. There are very, very rare cases (of both) that may on some measures be said to be borderline, and where you might actually need a medical determination – and even where medics might disagree. But in the vast majority of cases, the biological sex of a human being is very readily determined.Try this thought-experiment: imagine you took a ward of newborn babies, and gave the task of sexing them to a doctor and a five year old child.  In how many cases do you think their conclusions would differ? (Geese, in my experience, are more difficult: I can’t tell with certainty until they either start laying eggs or shagging their sisters, but to be honest at that point it’s pretty clear even with geese.)

I had gathered a daunting impression of Judith Butler as an intellectual heavyweight. That was before I read this interview; I won’t trouble with her again.

‘Trans customers: A guide for door supervisors’

This guidance document produced by the Security Industry Authority and published on the Home Office website in October 2018 has recently been publicised by @ripx4nutmeg.

There’s already an excellent thread taking it apart here, so I’m mainly adding my voice to points already well made elsewhere. I’m going to do that in the form of a series of quotes from the document, followed by my comment.

It has been written in consultation with trans people and groups as well as security industry operatives.

Comment There is no mention of consultation with any group representing the interests of women.

Take at face value what a reasonable person is telling you about what they need and who they are.

Comment How do you tell whether a particular person is reasonable? If someone who is obviously a man tells you he is a woman, does that give you any clue?

Don’t expect a trans person to look or sound a particular way.

Comment Ah, apparently not. This seems to mean – and certainly may be read as meaning – that trans people need not make any concessions to dressing as or looking like members of the opposite sex in order to claim, irrefutably, to be trans. So if a large muscular man dressed in masculine clothing and wearing a beard tells you that he is in fact a woman, the previous quote tells you that you should take what he tells you at face value.

Allow the customer to choose whether they want to be searched by a male or female member of staff.

Comment Think a bit about what this means. There are no rights without corresponding duties, so if your customers have a right to be searched by a male or female member of staff, then your staff must have a duty to perform those searches. If you’re a business owner, you’d do well to take employment law advice before complying with this guidance. You may risk indirect discrimination, sexual harassment or constructive dismissal claims from your female employees if you require them to search any male customer who states a preference to be searched by female staff.

If a trans person says that a particular toilet is appropriate for them, then that is the appropriate toilet for them.

Comment Business owners should take legal advice before complying with this guidance, too. If your signage indicates separate male and female toilets, you are representing to your female customers that the female toilets will only be used by other women. That may be essential to their feeling safe and/or comfortable using those toilets. Women being in general substantially  more vulnerable to male violence than vice versa, a woman who is upset – or made to feel that she can’t use your services at all – because you have ceased to provide female-only toilets may have an indirect discrimination claim against you. If she has suffered harm – e.g. voyeurism or an assault – because of your policy, she may have other claims against you.

It is unlawful to refuse a service, or provide a worse standard of service, because a person is intending to undergo, are undergoing, or have undergone gender reassignment.

Comment This is true in general (subject to exceptions), but not relevant to the guidance above. Excluding a trans woman from the women’s toilets isn’t discrimination on grounds of gender reassignment: it’s not because of their gender reassigment that they’re not welcome in the ladies, but because of their physically male sex. Schedule 3 to the Equality Act exempts justifiably sex-segregated services from the general prohibition on direct sex discrimination; and the indirect discrimination provisions of the same Act make it legally risky, at least, not to make use of the Schedule 3 exemptions where they are needed.

For example, this means that stopping a trans person from using the toilet they feel is appropriate to them may create a risk of legal action being taken against the pub, club or venue you work at.

Comment This is unfortunately true, because trans people have been told over and over by those who should know better (including, shockingly, the EHRC ) that they have stronger claims to female-only services and spaces than they do.

There are two points to note here. The first is that ‘a risk of legal action’ is not the same thing as ‘a credible risk of successful legal action.’ The second is that stopping a trans person from using the toilet they feel is appropriate to them may create a risk of legal action against your pub, club or venue – but so too may exposing your female customers to the risks associated with letting male-bodied people use your women’s toilets.

Consult a discrimination lawyer for guidance on which risk is the greater. Consult your conscience on whether to prioritise the safety and dignity of your female customers, or the feelings of your male customers. 

My body, my choice: privacy, consent and compulsion in personal care

Fortnum v Suffolk County Council is a first instance decision of an employment tribunal sitting in Bury St Edmunds that is often mentioned⁠1 in support of a claim that trans women trans-identifying males already have a right to be treated in all respects as women, even where that impinges on the privacy and dignity of natal women. So far as I can discover, the decision has so far escaped the attention of legal commentators. That’s not surprising, because decisions of the employment tribunal have no weight as precedents, so commentators rarely bother analysing them.⁠2 This one is being treated in some quarters as if it were binding, though, so let’s take a look at it. 

What did the employment tribunal decide? 

Ms Fortnum was a trans-identifying male woman employed by the Council as an assistant Day Care officer. Among her his duties she he was required to provide intimate personal care to male and female service users. One of those service users was a girl or woman (it’s not clear from the judgment whether she was an adult or not) with learning difficulties, referred to as DL. The judgment records that she he had done so satisfactorily and effectively, and that “Neither DL nor her mother knew that the applicant was a transsexual female.” That is ambiguous, but presumably the tribunal meant that DL and her mother believed Ms Fortnum to be a natal woman. 

On 25 May 1999, about a month before she he underwent gender reassignment surgery, Ms Fortnum was told that she he was no longer to provide intimate personal care for DL, because DL’s mother had expressed a wish that only female members of staff should attend to her daughter’s intimate care.

Ms Fortnum was upset and offended, and sued the Council for discrimination, apparently limiting herself himself to a complaint of discrimination on grounds of gender reassignment.  The Council argued that there was a genuine occupational qualification for the job (a “GOQ”); and also that Ms Fortnum had not suffered any detriment in being directed not to provide intimate personal care for DL. 

The tribunal dealt with the latter point shortly: 

We find that submission too sanguine. The applicant took offence and, rightly, at being treated differently by reason of gender reassignment from a natural born woman; she [sic] was treated differently.

So far as the defence of a GOQ was concerned, the tribunal appears to have thought that the direction to Ms Fortnum to stop providing intimate personal care for DL was direct discrimination on grounds of gender reassignment; and that that discrimination was not excused on the basis of a GOQ, because Ms Fortnum had previously been providing those services satisfactorily.

Did the employment tribunal get it right? 

I don’t think it did. From the point of view of employment law, there were three questions the tribunal needed to address: first,  was the Council’s decision made on the grounds of Ms Fortnum’s sex, or her his gender reassignment?  Secondly, was the Council’s decision to her his detriment? Thirdly, if so, could the Council make out a GOQ defence? But in the background to the employment law questions there were also issues – apparently wholly overlooked by the tribunal – about DL’s right to bodily autonomy, and the serious nature of any decision to override her choices about who should provide her intimate care.

Sex discrimination, or gender reassignment discrimination? 

DL’s mother had said only female members of staff should attend to her daughter, and it was in order to respect that wish that the Council had removed Ms Fortnum from theses duties. The established manner of finding out whether someone has suffered discrimination on the basis of a particular protected characteristic is to ask “What would have happened if she he hadn’t had that protected characteristic?” So to find out whether Ms Fortnum had suffered discrimination on grounds of her his gender reassignment, we ask how the Council would have treated someone the same as her him in every respect, except that they weren’t going through gender reassignment; that is to say, a man without the protected characteristic of gender reassignment.  

But once you identify that as the question, it’s obvious what the answer is: the hypothetical Mr Fortnum would have been stood down from those duties just the same as the real-world “Ms” Fortnum was. So the tribunal was wrong about this: there was no gender reassignment discrimination. The true reason the Council removed these duties from Ms Fortnum was that she he was male:⁠3 it was discrimination on grounds of sex. 

If the same facts occurred now, so that they were governed by the interplay of the Gender Recognition Act 2004 and the Equality Act 2010, the question whether the discrimination was on grounds of sex or gender reassignment would depend on whether the claimant had a gender recognition certificate or not. If not, then the discrimination would be sex discrimination for the reasons given, because she he would still be legally male. If she he did have a GRC, she he would be deemed female for the purposes of the EqA, and the discrimination would be on grounds of gender reassignment.⁠4

Was there a detriment?

There is no finding in the judgment that Ms Fortnum’s hours or pay were reduced as a result of the decision to remove her him from the particular duties in question: her his complaint was founded solely on the affront and upset that she he suffered because of that decision. The tribunal thought it was obvious that there was a detriment. 

This, to my mind, is at the heart of the case. The test for a detriment is stated by the Court of Appeal in Shamoon v Chief Constable of the RUC [2003] ICR 337: 

This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to “detriment”: Barclays Bank pic v Kapur (No z) [1995] IRLR 87.

I think the tribunal was wrong on this question, too, and clearly so. Who provides intimate care is a matter of individual consent to actions that would, in the absence of consent, be criminal assaults. A woman is entitled to withhold consent for intimate care to be provided by male people, however they identify, and for the employer of carers to respect that. It is unreasonable for a man to be offended because a woman declines to receive intimate personal care from him, and it is equally unreasonable for a person with a male body who identifies as a woman to be offended for the same reason. Ms Fortnum’s affront seems to have arisen out of her employer’s refusal to instruct or permit her him to commit a criminal assault on a disabled service-user. An “unjustified sense of grievance” seems a precisely apt description for what she he felt. 

Was there a valid GOQ defence? 

If I am right about detriment, this doesn’t arise: there was no detriment, so no discrimination; so the Council didn’t need to prove a GOQ defence. 

But it doesn’t arise for another reason, too. It appears from the judgment that Ms Fortnum complained of gender reassignment discrimination only, and not sex discrimination. So even if I’m wrong about detriment, her his claim should have been doomed to failure: she he hadn’t suffered gender reassignment discrimination, which she he did complain about; and she he made no complaint of sex discrimination, which (assuming the detriment point in her his favour) she he had suffered.  

But for completeness, let’s suppose both that I’m wrong about detriment, and that Ms Fortnum had complained of sex discrimination, too. Would the Council’s GOQ defence have succeeded?  

On this point, I think the tribunal was right, but for the wrong reason. A GOQ defence was available under the SDA where the job needed to be held by a woman to preserve decency or privacy; but GOQs relate to the whole job, not specific tasks. If the whole job had been caring for DL, the job might have acquired a GOQ when DL, or her mother on her behalf, withdrew consent to have intimate care provided by someone who was biologically male. But given that Ms Fortnum could simply be reassigned to other duties, there could not be said to be a GOQ for her job. So if there had been a real detriment, and if Ms Fortnum had complained of the correct kind of discrimination, I don’t think a GOQ defence would have been available to the Council.

The fact – relied on by the tribunal – that Ms Fortnum had performed these particular tasks satisfactorily for some time had no bearing: consent to intimate care is not irrevocable once given. It was open to DL to withdraw her consent to having the services provided by someone who was biologically male, and she had done so.

Conclusion

Fortnum is a muddled and erroneous first instance decision that was (perhaps surprisingly) not appealed by the Council. It doesn’t really tell us anything useful at all, nor is it legal authority for anything. Specifically, it doesn’t provide authority for the proposition that trans women are entitled to override the demands of natal women for bodily privacy from the opposite sex.

Finally, a practical note. Cases like this are liable to cause women anxiety about the extent to which they are entitled to have their bodily privacy respected, so it is worth spelling this out. A woman is  entitled to insist on any intimate treatment or service – from bra fitting to catheterisation – being provided by another woman, and to decline care (etc.) offered by a trans woman. A woman receiving treatment as a patient or services as a client or consumer is not doing anything that is controlled by the Equality Act 2010, so no question arises whether in insisting on being attended to by a woman she is “discriminating,” or whether there is a valid exemption that excuses her conduct: this is simply a matter of her boundaries, her dignity, her preference, and her consent.⁠5 No means no. 

1 Sometimes under the name “DA v Suffolk County Council”; in any event, case number 2000 ET/1501602/99.

2 There doesn’t even seem to be an official transcript of the judgment in existence: I have been working from a transcript prepared by the claimant and her legal adviser, and published by Press for Change:  http://www.pfc.org.uk/caselaw/DA-v-Suffolk%20County%20Council.pdf

3 The Gender Recognition Act 2004 had not yet been passed, and at the time of the act complained of, Ms Fortnum had not undergone surgical transition, so there was no basis on which she could credibly have argued that as a matter of law she was female.

4 Against this, on parallel facts arising now, Chief Constable of the West Yorkshire Police v A [2005] AC 51 might be relied on for an argument that the trans woman should be treated by the law as female. My view in short is that that argument should fail. The claimant in West Yorkshire Police was a “post-operative transsexual,” and there is significant reliance placed in the House of Lords on how complete her physical transition had been. It is also relevant that West Yorkshire Police was decided before the Gender Recognition Act had come into force: there is now a statutory scheme in place that tells us whether, and for what purposes, a trans woman is to be treated as legally female.

5 Whether if the service provider refuses to provide an alternative, a woman would have a discrimination claim of her own is a question for another day; but what is beyond any possible doubt is that she is entitled to decline.

Does the law say that trans women are women?

There’s a comment on Audrey Ludwig’s “Blog about Boxes” that seems to me to need a short post of its own. The full comment is

Can I ask a question about something I’ve seen claimed many times (including by senior politicians) – “the law states that transwomen are women.” Does the law actually say this?

The short answer is no: the law doesn’t define the terms “transwoman” or “trans woman” at all. 

The Gender Recognition Act 2004 does change some people’s legal sex. Obviously the law can’t change anyone’s biological sex. The fact that the law can’t mess with material reality is the point Canute was making when he forbade the tide to come in. But section 9 of the Gender Recognition Act 2004 has the effect that some trans women (i.e. the very small number who hold a GRC – only a few thousand to date) are deemed for most legal purposes to be women, although exceptions apply.

The Equality Act 2010 forbids discrimination (in various different contexts) on grounds of gender reassignment. That means that in those contexts where the Act has effect (employment, provision of public services, education etc.), it’s mostly unlawful to treat a person less favourably than you’d treat other people because they are proposing to undergo, are undergoing or have 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.”  If a person is somewhere on that path, it doesn’t matter whether they’ve got a GRC or not: they’re entitled anyway not to suffer discrimination on grounds of gender reassignment. There are some necessary exceptions, but in general it’s obviously right that there should be a legal prohibition against discrimination on this ground.

But it’s important to note that that doesn’t mean that trans women are entitled to be treated for all purposes as if they were biological women. If a trans woman who doesn’t have a GRC wants to access a female-only space, and is refused access, that’s not discrimination on grounds of gender reassignment, but discrimination on grounds of sex. She’s refused access not because she’s trans, but because she’s both legally and biologically male. That means she can lawfully be refused access any time it’s lawful at all to have a female-only space. In my view, it also means she almost certainly should be refused access in those circumstances. That’s because it’s only lawful at all to provide a single-sex space or service if there’s a good reason for sex segregation; but if trans women are admitted, it will cease to be a single-sex space.

If a trans woman who does have a GRC wants to access a female-only space or service, it’s still likely to be lawful to refuse, because of the exceptions that apply to prohibitions on discrimination on grounds of gender reassignment.

In short, the Equality Act does recognise that although sex is usually a bad and arbitrary reason for treating people differently, there are contexts in which biological sex matters.

Sex, gender and fair competition in sport

When is it lawful to exclude trans women from women’s sport?  And will it ever be unlawful – or legally risky – not to? I argue that the answers are “usually,” and “yes,” respectively.

Most competitive sports are segregated by sex: as a rule, there will be a women’s event, and a men’s event. Sportswomen and men have to compete in the event specific to their sex, and will generally be refused admission to the opposite sex’s team or event. 

Not being allowed to take part in something you want to take part in because of your sex is sex discrimination, which the Equality Act 2010 prohibits in various contexts – including many of the contexts in which people do amateur or professional sport. So how come it’s lawful to have separate men’s and women’s events at all? 

The answer is in Part 14 of the Act, the Part headed “General Exceptions.” Section 195 is headed “Sport.” 

The main work of section 195 is done by its first two subsections, supported by a definition at s.195(3).  I’ll take the definition first. 

The definition: “gender-affected activity” 

Section 195(3) defines the expression “gender-affected activity.”  If the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage compared to average persons of the other, it’s a gender-affected activity.  

That will easy to apply in the vast majority of cases. The physical strength, stamina or physique of the average woman will put her at a disadvantage compared to the average man in almost all sports where muscular strength, speed, body size, reach etc. are significant. No doubt there are some borderline cases, and the odd exception; and it may even be that in some extreme endurance events women start to pull ahead[1]. But in general, if men and women compete in the same sports, relatively ordinary men will outperform even elite women. That’s why we have segregated sports: if we didn’t, in most events women would scarcely get a look in.  

Deciding whether average persons of one sex have an advantage over average persons of the other doesn’t require us to tangle with controversy about who exactly should be included when we calculate the qualities of “average persons of one sex.” Even if you include trans women in the total population of women from which you draw your average, that may shift the average a bit,[2] but it won’t make the male advantage disappear. So the great majority of sports will be gender-affected activities, and self-evidently so. (See Dr Emma Hilton’s paper here https://www.preprints.org/manuscript/202005.0226/v1 if you’re not with me on “self-evidently.”) Exceptions will be sports where the differences between competitors are all about skill, built on a base level of athleticism that either sex can attain. Equestrian events are the obvious example; and sure enough, they tend not to be segregated by sex.

Subsection (1): sex discrimination 

Subsection (1) takes participation in any gender-affected sport right out of scope for all relevant prohibitions of discrimination on grounds of the  protected characteristic of sex. Nothing anyone does to anyone on grounds of sex in relation to their participation as a competitor will be unlawful sex discrimination, provided only the sport is a gender-affected activity.

Subsection (2): gender reassignment discrimination  

Subsection (2) provides a more qualified defence to gender reassignment discrimination where the sport is a “gender-affected activity” and the discrimination is necessary to fair competition or safety. 

So to decide whether it’s lawful to exclude a person with a male body from a women’s sporting event, you need to work out whether the circumstances fall under subsection (1) or (2). That means you need to know whether excluding them would be discrimination on grounds of sex, or discrimination on grounds of gender reassignment.

Which kind of discrimination is it? 

I’m going to discuss three imaginary individuals, Chris, Viv and Hilary, all of whom would like to compete in a women’s rugby match, and all of whom are turned away by the body organising the match because they have male bodies. Chris is a man, and doesn’t identify as anything else. Viv is a trans woman without a GRC. Hilary is a trans woman with a GRC. 

Chris is excluded from the match because he’s a man: it’s a straightforward case of direct sex discrimination, but rugby is a gender-affected activity, so s.195(1) makes it lawful to exclude him from the women’s match. 

Viv doesn’t have a GRC, so although she self-identifies as female, so far as the EqA is concerned she’s of the male sex. A person of the opposite sex would have been allowed to compete, so this too is direct sex discrimination, and lawful by virtue of s.195(1). No ifs or buts,[3] and no need for justification in the individual case. 

Hilary, although biologically male, is legally female, so a person of the opposite sex – a man – would have been excluded from the match just the same. So Hilary hasn’t suffered sex discrimination. But she has suffered gender reassignment discrimination, because a comparator of the same (legal) sex but not having the protected characteristic of gender reassignment – that is, a woman who was a woman by biology rather than by a process of legal deeming – wouldn’t have been excluded. So Hilary’s exclusion is lawful under s.195 only if it is necessary in order to secure fair competition or the safety of other competitors.[4]

Bearing in mind that rugby is a contact sport which even among physically well-matched opponents frequently causes injury, it seems likely that including Hilary – unless she has an unusual physique for someone who has been through male puberty – will increase the risks to her biologically female opponents. The same goes for fairness: Hilary’s male puberty will have given her an advantage that no certificate or legal status can erase. This is likely to be true in almost any case where a trans woman with a GRC wishes to compete with women in a gender-affected activity: even where safety isn’t engaged, the fact that the sport is a gender-affected activity will normally be sufficient to indicate that fairness will be undermined if a biological male is allowed to compete. 

So although conditions for the operation of the exemption look different under subsections (1) and (2), the reality is that it will normally be lawful to exclude trans women from women’s events (anyway so long as those events amount to the provision of services within section 29) whether or not they have a GRC. 

Will it ever be unlawful not to exclude trans women from women’s sport? 

Section 195 provides exceptions to general rules in various contexts prohibiting discrimination on grounds of sex and gender reassignment. On their face, they are merely permissive: they say you may discriminate, but they don’t say that you must. So some sporting bodies may take the view that they’d rather not be sued for discrimination, even if they might have a good defence under s.195, so they might as well err on the side of safety by welcoming all comers on the basis of self-identification. 

But it’s not as simple as that. I can foresee two distinct ways in which sporting clubs or bodies may lay themselves open to claims if they permit male-bodied people to compete in women’s events, and there may be others I haven’t thought of.[5] The most obvious one is negligence: in contact sports (and potentially others, like cycling, where there is a risk of accidental contact), permitting trans women to compete may make the contest not merely unfair, but also more dangerous than it ought to be. 

But in many cases even where safety isn’t engaged, there is the possibility of indirect discrimination to contend with. Indirect sex discrimination occurs where a “provision, criterion or practice” puts women at a particular disadvantage compared to men. Opening participation in sex-segregated sports to trans men and trans women (whether on the basis of self-identification, or limited to those with a GRC) will put women at a striking disadvantage compared to men: men in general have nothing to fear from trans men competing in their sports, but if trans women are allowed to compete in women’s sports, natal women are bound to lose out on team places, prize money, sponsorship, medals, and  – perhaps most importantly – participation.

An indirect discrimination claim on this basis isn’t straightforward, because of the extraordinarily broad terms in which section 195(1) is expressed: read literally, it abolishes the whole of sex discrimination law at a stroke in relation to participation in gender-affected activities. That is a result so peculiar that one feels there must be a way around it[6] – but that’s a puzzle for another day. 

[1] In truth, this caveat is only there as an excuse  for a footnote about Jasmin Paris’s outright triumph, beating all previous male and female records, in the 2019 268-mile Montane Spine Race along the Pennine Way while breast-feeding.

[2] In fact, it undoubtedly will.

[3] I am confident that this analysis is correct, but it is fair to note that the contrary view does appear to be implicit in Alex Sharpe’s article ‘Will Gender Self-Declaration Undermine Women’s Rights and Lead to an Increase in Harms?’ (Sharpe (2020) 83 (3) MLR 539-557).

[4] There’s a weirdness in the drafting of s.195. Subsection (1) obliterates the whole of sex discrimination law so far as it relates to participation in gender-affected activities. Subsection (2), in contrast, just excludes four specific sections: s.29, which prohibits discrimination in relation to the provision of services; plus sections 33-35, which relate to the disposal and management of premises. The disparity of coverage isn’t mentioned in either the EHRC Code of Practice or the explanatory note to the Act, and I’m currently baffled by it: I find it difficult to to understand why, for example, the exemption shouldn’t extend to discrimination by associations or educational institutions. If anyone can explain that to me in a comment, I shall be grateful.

[5] Again – please comment if you can think of others.

[6] At the very least, in relation to professional sport, it can’t be compatible with the Equal Treatment Directive 2006/54/EC.