Victoria Hewson is a solicitor and co-founder of Radical, a campaign for truth and freedom in the gender recognition debate. She and Rebecca Lowe, her co-founder, alternate authorship of this column on trans, sex and gender issues.
The culture wars over sex and gender are increasingly being played out in the courts. The judge in Maya Forstater’s recent employment tribunal found her belief that sex is immutable to be unworthy of protection in a democratic society. Harry Miller won a judicial review against the College of Policing over action taken against him for sharing ‘gender critical’ material on social media. Kate Scottow was found guilty of an offence for “caus[ing] annoyance, inconvenience and anxiety” during a sustained Twitter squabble with a serial litigant transwoman. And another judicial review has just begun, into the treatment of children by the NHS Gender Identity Development Service (GIDs) — brought by a nurse, a parent, and a former patient.
This growing legal focus stems from developments in UK legislation and case law, alongside the impact of activist judgments by the European Court of Justice (ECJ) and the European Court of Human Rights (ECHR).
The 2004 Gender Recognition Act (GRA) allows trans people (on having proven they have gender dysphoria, and having lived as their ‘acquired sex’ for two years) to obtain certificates entitling them to be treated as belonging to that sex for (almost) all legal purposes.
This Act was passed after the ECHR found in the 2002 case of Goodwin v UK (‘Goodwin’) that the UK was violating the rights of transsexuals (the then-standard term for trans people) to a private life, under Article 8 of the European Convention on Human Rights.
This violation was manifested by the UK’s failure to afford full legal recognition of these people’s new gender (or sex, or even sexual identity — as the judgment uses all three terms, pretty much interchangeably). The ECHR acknowledged that its decision went against its own recent case law, but decided it should proceed with a “dynamic and evolutive approach”.
In the 1996 case, P v S and Cornwall County Council (‘Cornwall’), the ECJ decided that discrimination against a person on the grounds of gender reassignment was already prohibited, thanks to a directive covering discrimination on the grounds of sex.
The UK government was therefore required to introduce a regulation providing protection along these lines — despite the fact that the relevant directive actually referred to sex, rather than gender reassignment or gender identity. (Indeed, it was then considered necessary to update the directive itself!). In his influential advice to the court, the Advocate General acknowledged the potential controversy ahead:
“I am well aware that I am asking the Court to make a `courageous’ decision [but] what is at stake is a universal fundamental value, indelibly etched in modern legal traditions and in the constitutions of the more advanced countries: the irrelevance of a person’s sex with regard to the rules regulating relations in society.” *
The consequences of both these cases have been far-reaching. The law is now confused and confusing — and the interaction between the GRA and the Equality Act (2010) is particularly complicated. Try working out this explanation from the UK Equality and Human Rights Commission (EHRC):
‘Under the [Equality ] Act, the protection from gender reassignment discrimination applies to all trans people who are proposing to go, are undergoing or have undergone (part of) a process of gender reassignment. At the same time, a trans person is protected from sex discrimination on the basis of their legal sex. This means that a trans woman who does not hold a GRC and is therefore legally male would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female. The sex discrimination exceptions in the Equality Act therefore apply differently to a trans person with a GRC or without a GRC.’
Moreover, there are circumstances in which it’s permitted to discriminate between (natal) women and transwomen (including those holding GRCs) — when deemed necessary and proportionate to achieving a legitimate aim (regarding safety or welfare, for instance). Confusion over this has been exploited by activists, who sometimes misstate the law to suggest that excluding trans people from single-sex spaces is already illegal.
In Goodwin, the ECHR uncritically used expressions like ‘brain sex’, which would surely provoke derision — not least from feminists and medical professionals — today. And, surely, the drafters of the legal instruments the judges interpreted in these cases could not have expected the outcomes that arose.
We can certainly see that the judges themselves didn’t — and weren’t really in a position to — undertake analyses of their decisions’ policy implications. But such is the elevated and entrenched position of both human rights and EU law that Parliament could do little but introduce, and maintain, legislation bringing the UK into compliance with the findings of the European courts.
Now, amidst widespread confusion, and following variation across recent judgments in the UK courts, it’s time our Government stepped up. Trans rights activists had a head start with judgments like Goodwin and Cornwall; conservatives, feminists, and society at large have much ground to make up. The GRA’s obscure wording, and the complex and all-encompassing provisions of the Equality Act, together with public authorities’ uncritical acceptance of trans activists’ claims, have led to worrying developments.
These include current English and Scottish proposals to remove the need for medical diagnosis and proof of living in one’s “acquired gender” when obtaining legal recognition of having changed sex. This would result in so-called ‘self-ID’, and the effective loss of single-sex spaces, amongst other consequences. We have also seen startling increases in life-changing medical interventions on young people.
But recent case law has shown that this movement is now starting to collapse under its own contradictions. Perhaps the UK government was right in 2002, when it disputed that scientific research and societal change had led to “wide acceptance and consensus on transsexual issues”. And perhaps the judges were wrong when they pronounced that there were “no significant factors of public interest to weigh against the interests of [Christine Goodwin] in obtaining legal recognition of her gender reassignment”.
In light of large sections of the Labour Party demanding that anyone denying that TWAW (‘transwomen are women’) must be censured, it should also be remembered that it was the perceived movement of other countries that gave the ECHR the grounds to override the UK’s ‘margin of appreciation’ to determine the matter ourselves. We must not be swept along again without open debate and widespread understanding of the possible implications of further legal changes.
All of this also demonstrates the need to consider carefully both the role of judges, and the boundaries of human rights laws. In the cases outlined here, activist judges were able to make laws that have had serious societal consequences. In seeking to protect the rights of trans people, judges have set in train a series of legal and cultural developments that threaten the privacy and the safety of women and children. As the current government looks into taking back control from judges, these cases provide a stark illustration of what can happen when judges’ decisions have profound political impact on highly contestable issues.
*This ‘irrelevance’ may come as news to ConservativeHome readers.