Law

Legal Shenanagins

~ Cheryl

One of the things that has protected trans rights in the UK over the past couple of years is that the Tories are too busy, and too cowardly, to actually repeal the Gender Recognition Act, even though many of their MPs very much want to get that done. The anti-trans lobby is unhappy about this, and is therefore taking matters into its own hands by taking legal action. Very soon, their case will reach the Supreme Court. Should they win, the consequences for trans people in the UK (and equality law more generally) will be catastrophic.

The Gender Recognition Act says, unambiguously:

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

However, as I understand it, the argument that will be put before the Supreme Court is that allowing a trans woman to be treated as a woman is, de facto, discrimination against cisgender women, and therefore illegal under the Equality Act. As the Equality Act is a more recent piece of legislation, its provisions should supercede those of the GRA.

Hopefully it is obvious that, should this claim succeed, it will open the doors to equivalent claims such as, “letting Black people into my whites-only pub is discrimination against white people,” and “building a wheelchair ramp is discrimination against able-bodied people.” Thankfully such claims are less likely to pass the Supreme Court.

But the chances of this getting through are very high. And if it does, not only will the GRA be rendered useless, it will create a climate of fear in businesses all around the country. Because it will be possible for a business (or school, local authority, etc.) to be sued for discrimination if they inadvertently allow a trans woman to be treated as a woman. This will lead to a lot of proactive bans being issued at places like public toilets, gyms, clothing stores and so on. Most of the people caught by this will be gender-nonconforming cisgender women, because despite what the anti-trans lobby claims, they can’t always tell, and neither can anyone else.

I say the chances of it getting through are high, because at the moment no trans people or allies will be allowed to give evidence. The anti-trans lobby is being bankrolled by She Who Must Not Be Named (to the tune of £70,000). In contrast, a crowdfunder by The Good Law Project to allow them to intervene in the case stands at just over £10,000. Britain’s only senior trans judge has asked for leave to intervene on the case, but that request may be denied.

My guess is that both Sunak and Starmer will be having messages sent to the Supreme Court judges encouraging them to find in favour of the case, because both main political parties would be delighted if the GRA could be made to vanish without them having to do anything. And of course the judges know that they will be pilloried in the media if they don’t find in favour of the case.

It would not surprise me if, by the end of this year, the UK had become one of the most transphobic countries in the world (rather than just one with the most transphobic media in the world).

Thank You, Good Law Project

~ Cheryl

Here’s something else to be thankful for. The Good Law Project is a legal initiative that seeks to provide legal redress for the disadvantaged and voiceless in the UK. It is a non-profit organisation funded largely by donations. It is currently suing the government over various apparent breaches of public procurement law in which contracts for things like PPE have apparently been handed to companies run by friends of Cabinet ministers without competitive tender, or even proper scrutiny. But that’s not what I want to talk to you about today.

For a year or so now, well-funded anti-trans organisations have been bringing malicious law suits against anyone who dares to stand up for trans rights. The objective appears to be to scare the likes of local councils, the NHS and so on into withdrawing trans inclusion policies. Faced with a threatened law suit, management of such organisations will often cave in to demands rather than face the expense and guaranteed negative press coverage that would result from fighting a case they should win.

The trans community, of course, cannot fight back. Despite the constant allegations on social media that we are somehow funded by George Soros and an International Jewish Conspiracy, we have no money. Nor do we have the expertise.

However, the lovely people at the Good Law Project have decided to lend a hand. They have set up a fighting fund for taking cases on behalf of the trans community. There’s a public appeal here, which aims to raise £20,000. That’s a small amount compared to what anti-trans groups regularly raise in their campaigns, but it is a start. If you have a few quid to spare, please consider sending it in their direction.

Today on Ujima – PapayaFest, Discrimination at Work, Fungi & Ellen Datlow

~ Cheryl

I did a radio show today. Here’s what went down.

I started out with a visit from my good friend Tamsin Clarke. We kept our clothes on this time. As you may recall, Tamsin is from Venezuela. She has been putting together a festival of Latinx culture called PapayaFest. It will feature Tamsin’s theatre productions and a great line-up of bands and DJs. Because Tamsin has such great topics for her plays we ended up talking about Simón Bolívar, matriarchal families and the current state of feminism in Latin America.

Next up I was joined by Karen and Erin from Bristol Law Centre. They have come up with an interesting new way of funding employment discrimination cases and they wanted to get the word out there. I was pleased to be able to point out what good work they do, and how necessary they have become because of the current government’s actions designed to make recourse to the law something that is only available to the very rich.

Guest three was my friend Esme who has got involved with mushrooms. They really are fascinating life forms, and most people have no idea how many types of fungi there are, or how crucial they are both to the ecosystem and to many modern industries. There will be a Fungus Day at Arnos Vale Cemetery on Saturday, which I’d be very tempeted to go along to if I wasn’t booked elsewhere.

And finally I ran part of the interview I did with Ellen Datlow at TitanCon. This extract includes how she got her job at Omni, what “best of the year” means, who is the only writer ever to have scared her, and why she once turned down a story by Margaret Atwood. The full interview will run in Salon Futura at the end of the month.

You can hear the whole show via Ujima’s Listen Again service here.

The playlist for this month’s show is as follows:

  • Simón Díaz – Caballo Viejo
  • WARA – Leave to Remain
  • Rodrigo y Gabriela – Hanuman
  • Elsa J – 9 to 5
  • Carlos Santana – Flor d’Luna
  • Janelle Monáe – Mushrooms & Roses
  • Sade – Nothing can come between us
  • Michael Jackson – Thriller

Gendered Voices – Day 2

~ Cheryl

Following on from yesterday’s post, here’s what we got up to on the second day of the Gendered Voices conference.

Session one was all about representation and began with Rosie talking about her research into coming out experiences. This is very valuable work, and the sort of thing that Berkeley and I will keep a close eye on as it can be used as evidence to encourage action by local and national government.

Next up an emergency fill-in from Louise (always a brave thing to do) about the 19th Century gothic writer, Lucas Malet, noted for her particularly morbid imagination. Malet was the daughter of novelist Charles Kingsley who wrote The Water Babies, an exceptionally unpleasant piece of Christian allegory aimed at kids. It is no wonder the poor woman grew up warped. There are a lot of people doing research on 20th century women Gothic writers, but Louise is the only one I know who is working on the 19th Century. I’m sure she’d welcome some company.

The final paper was from Jenn and was about trans and non-binary representation in literature, in particular the literary fiction market. Jenn says that they know of only nine literary novels featuring trans characters. I’m pretty sure I could name nine from the past year in SF, and a similar number in realist YA, but thus far Jenn is resisting all of my attempts to lure them to the Dark Side.

Session two was all about violence and was very intense. It began with Jassi, a lawyer, talking about girl soldiers. When we hear about child soldiers in the media it is always about boys, but in fact between 30% and 40% of child soldiers are female. Not only are they erased by the Western media, but if the war they are fighting in is halted then they will be forced back into subservient social roles by their supposed rescuers.

Elena talked about group counseling for victims of sexual violence. Apparently this is quite effective, whereas one-to-one counseling can often further isolate the victim. Elena says that it is very rarely used in the UK. That’s interesting, because this sort of counseling is specifically mentioned in the Equality Act as a circumstance in which trans women can be excluded from women-only spaces. I had assumed that it would therefore be common, but no, the government made all that fuss about trans women not being women over a situation that was very unlikely to arise.

Encouragingly, Elena said that the rape crisis center she is working with is trans-inclusive.

The final speaker was Patrick who talked about women volunteers in the IRA. There were apparently a lot of them, and the way that they worked reminded me a lot of the French Resistance. Interestingly the IRA, despite being Catholic, were (and presumably still are) pro-abortion. I gather from social media that one of these IRA women is now a Conservative parliamentary candidate.

The keynote speaker for the conference was Thangam Debbonaire, the current MP for Bristol East. It was really good of her to keep the commitment despite there being an election on and her seat being very much at risk. She also gave a great speech. She’d make a brilliant WEP MP, but I can’t blame her for going with a party that can get her elected, even if its policies on women’s issues are not as good as ours.

Session three was on masculinities and opened up with Katherine talking about Priapus and modern masculinity. Priapus, you may remember, is the Roman god with the massive dick. The Romans used pictures of him to demonstrate how supposedly virile they were. Katherine compared Roman poetry and graffiti to modern social media posts and came to the brilliant conclusion that dick pics are modern day Priapus images. If cameras had been around in Roman times, they would have sent people pictures of their own dicks too. And they would have sent them to men that they wanted to dominate as well as to women.

Charlotte talked about the contrasting portrayals of King Richard and Henry Bolingbroke in Shakespeare’s Richard II. It bemused me as to why Shakespeare, writing during the reign of Elizabeth, would have written about an effeminate king being replaced by a manly usurper. So I asked, and discovered that the play had been sponsored by Essex, who was in the process of plotting a coup at the time. I have no idea how Will talked his way out of that one. I’m sure that Elizabeth must have been tempted to do the “Off with his head!” thing.

The paper that generated most social media chatter was one by Henry on the gender of mediaeval clergy. Some historians hold that the clergy were seen as a third gender by the rest of society. Henry, by examining the writings of late mediaeval chroniclers, made a convincing case that many of them did not see themselves in that way, and indeed went to great lengths to show how manly they were in their own domain (which was the spiritual war against sin).

The final session was on feminism, and kicked off with Ana looking at the educational reforms promoted by the lesbian author, Bryher. She had some really good ideas about how to give kids better education, but they did not go down well with the Great British Public. The Daily Mail asked readers to give their own views on the proposals. One man wrote in to say that it was the duty of school to educate girls out of having an imagination.

This was followed by Teresa talking about historical fiction writer, Sylvia Townsend Warner. She sounds like someone I would like to read, especially her fantasy novel, Lolly Willowes.

Finally we had James, a philosophy student, asking, “Why is there Feminist Epistemology at all?” The title apparently riffs off a well-known paper about the theory of mathematics. James made some very good points, particularly about Standpoint Theory. However, I don’t think you can even begin to talk about what feminist epistemology might be until you have first defined what feminism is. As that’s enough to keep many philosophers busy for decades to come, I think James’s question will have to wait.

You will note that I found something good to say about every paper. Huge congratulations to the organizers. That’s what I call a quality conference. I do hope it runs again next year.

Trans & The Law – Theory & Practice

~ Cheryl ~ 3 Comments

I spent this afternoon at a police station in Bristol. Nothing terrible has happened. I was doing trans awareness training for the LGBT Group of Avon & Somerset Police. They are lovely people, all LGB-identified themselves, and very keen to know how they can better help any trans people that they encounter during the course of their work. It is really heartwarming to know that there are friendly, supportive people in the local police force whom I can go to if I am in trouble.

My thanks are due to my pal Annabelle Armstrong-Walter who organized the training and ran the LGB site of things, and the the folks at Diversity Trust through whom I do all of my trans training work.

Coppers the world over seem to be fond of the odd glass of beer, and after the training they dragged me off to the pub. While we were there a very practical example of what I had been talking about turned up. The Bristol Post published this article about a local trans woman who has been sentenced to 12 weeks detention in a male prison. My trainees were uniformly horrified that this could happen, but the case very clearly highlights the shortcomings of UK law on trans issues as it currently stands.

Because most mainstream journalists are clueless when it comes to trans issues the reports in the papers are not a lot of help. Until people get back to work in the morning I won’t know the full facts of the case. However, it is pretty clear that Tara Hudson identifies as a woman, lives as a woman, and has had some medical treatment to help her to do so.

In most cases trans people have no need to make any legal change to their paperwork. You can change your name just by saying you have done so; bank accounts and the like should not require any sort of legal document (though many do and something more official can be obtained very cheaply). However, when it comes to interaction with the legal system, you do have a legal gender. For most purposes that is the gender specified on your birth certificate. That can be changed by obtaining a Gender Recognition Certificate. If you have not done that, then the courts will still treat you as the gender that you were assigned at birth, no matter how long ago you transitioned or what medical treatment you have had.

The trouble is that the Gender Recognition Act is woefully unfit for purpose. It does nothing for non-binary people or intersex people (neither of whom have any legal existence under UK law); it does nothing for people under the age of 18; and it even fails many people who have transitioned because for various reasons they do not wish, or are unable, to obtain a Gender Recognition Certificate.

A large part of the problem is the expense and bureaucratic nightmare involved in making the application. The behavior of the Gender Recognition Panel, a group of cisgender people whose job it is to oversee applications, is also a major problem. I’ve heard horror stories about people having their applications questioned or rejected for fairly trivial reasons.

As I said above, I don’t have the full facts of Tara’s case (in large part because “things written in tabloid newspapers” and “facts” tend to have very little overlap). What I can say is as follows:

1. If Tara does have a Gender Recognition Certificate then the Magistrates’ Court in Bath has made a very serious mistake.

2. The Prison Service is not daft — it has encountered issues like this before — and there are protocols that should be gone through before Tara’s sentence is finalized.

3. Although Tara did plead guilty, it is not clear whether a custodial sentence was mandatory. Given what Tara’s mother has told the press, I’m guessing that Tara’s lawyer did not think it was. This may be another avenue to explore.

I hope to have more to report tomorrow, but it is another busy day as in the evening I have to be at Waterstones in Bristol for Juliet Jacques’ signing tour. I rather suspect that this case will be a topic of conversation there too.

In the meantime, I would be very grateful if as many of you as possible could sign this petition.