Trans politics: Using UK law to further trans rights
One of the remarkable aspects of trans legal protection in the UK is that most of the rights trans folk have were obtained through court action and framed through judicial decisions rather than anything explicitly laid out in enacted legislation. The Gender Recognition Act 2004 allowed trans folk to legally change their birth certificates, and the Equality Act 2010 made gender reassignment a protected characteristic. Yet, it took the actions of trans activists and everyday trans folk bringing court cases to provide the texture to those laws and force the UK government to even bring the legislation in the first place. Conversely, much of the internet discourse has centred on dissatisfaction at the slow pace of change, of pushing back against the retreating tide of perceived rights, and radically agitating against exclusionary feminism. For all the radical activism on both sides of the conversation, it is the courts who have often decided what rights are upheld and what ground new rights move forward on.
The main caveat to all of this is that the UK has a unique legal framing of sex and gender reassignment in law. Most countries who enact trans rights do so through the concept of gender identity, which the UK chose not to protect when it enacted the ES2010. Instead, at law only non-cisnormative gender identities have protected status, meaning that cisgender folk have to fall back on belief and sex, rather than their gender identity, before the law. This tension between the rights of those who go through some form of gender reassignment and those who rely on their assigned sex at birth has led to the current UK furore over sex-based rights opposing gender reassignment based rights. It is a semantic nuance of UK law, and one which only makes sense in the context of the UK’s common law approach to sex due to the decision in Corbett v Corbett [1970] which laid out a four-step approach to legal sex that includes chromosomes, assigned sex at birth, and social understanding of an individual.
This judicial approach to gender and sex-based problem solving is at the heart of many of the issues surrounding sex and gender in 2023 Britain. The courts have consistently based their understanding of sex on Corbett, while Haldane 2022 reiterated that sex in UK law is not based on biological sex because the EA2010 only lists sex, not biological sex, as a protected characteristic. Even terms like motherhood have become unanchored for sex due to Freddie McConnell’s failed legal attempt to be recognised as the legal father of the child he birthed, meaning that under UK law motherhood is assigned to the birthing parent, not just ascribed to a woman who gives birth. McConnell is just one of the most recent activist cases to come before the UK courts, with the usual caveat given by the judges that it is up to the UK government to change the law, not the court to make law out of fresh cloth.
Which leads in the Maya Forstater case, where gender critical views were held to be protected beliefs. What is often left out of that narrative is that the appeal tribunal upheld the EA2010’s protection of gender reassignment, meaning that while gender critical belief is protected speech, those who hold those views can still be held legally accountable if they cause offence. In a way, Forstater’s own gender critical activism has upheld the basic rights of trans folk in the UK in ways that other caselaw had not done previously. Indeed, her views are on the same level as anti-abortionists, Brexiters, and any other fringe belief that is borderline discriminatory in the wrong context.
Due to this, exclusionary feminists and their gender critical allies have sought to spin Forstater as a win, yet they appear to have fundamentally misunderstood why Forstater won. It was not her views that were validated, but the actions against her that were at fault. Her beliefs, much like those of many over gender critical believers, are not grounded in any hard conceptual science, rather their attempts to rationalise sex as the sole means of legal protection in the UK. Their attempts at protecting women are beliefs, which are there to be tested before the law.
And the law at court does not follow the caprices of either trans inclusive or gender critical advocates. UK judges since Corbett have been bound by the strictures of that decision, and until the UK Supreme Court or the UK government decides otherwise in either a judgement or enacted law UK trans folk are left in a shadow zone of gender reassignment and patchwork decisions. Sex only matters when exclusionary activists wish it to, and they ignore the fact that any tightening of sex-based laws in the UK will harm all women because exclusions will be in the eye of the beholder.
There is also the issue of how data is collected in relation to protected characteristics and how far you can compel someone to state either their sex or their gender identity. Due to the GDPR and civil service guidelines UK organisations must tread carefully in how they both collect data and what data they are collecting. In the UK you can put down whichever sex you like on a form, and you are not compelled to state your gender identity, meaning that any data collected relies on the willingness of the person completing the form to provide the data. This side of UK law means that while sex rights advocates may wish for a sex-based world, good luck enforcing it with out mandatory compulsion. Indeed, if anyone were to be impelled to divulge sex or gender, then it would likely get struck down by the courts due to EA2010 and/or the GDPR commissioner under current UK law.
Yes, this is all technical and semantics. This is how the law usually operates, along with the fiscal constraints of police and court resources. If you are a sex rights advocate your primary recourse is the law because UK society has moved on considerably since Section 28. The UK has a complex tangle of gender and sex-based laws and case law precisely because there has never been one single narrative around sex and gender in this country. There has never been the political to impose a standard legal definition of sex, other than to acknowledge that sex exists, meaning that the courts have had to scope out the boundaries in law. No number of cries from either side changes this fact, and ever the current UK government’s attempts at bringing in more sex-based guidance is playing at the edges. Only primary legislation will change the current legal paradigm.
So, this means that to further trans rights in the UK requires a two-pronged approach. One is working with MPs to shape future legislation that bulwarks trans rights. The second is ensuring that any trans rights brought before the courts enhance those rights in their judgements rather than walking them back. Both require time and money, with the second requiring a fair amount of skill as well. Even if a case, such as Forstater, appears to walk back trans rights, it is imperative that full judgements are read and considered because UK judges rarely indulge in the kind of judgements laid out in Corbett. If trans folk are to escape the tyranny of ordinary meaning of sex it will likely take dedication, hard work, and the misfortune of one or two trans folk to bring a successful case before the courts. Until then, trans rights in the UK are reliant on the courts and UK Parliament to ensure there is no further backsliding of rights.
