Legal Shenanagins

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).

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