Transvox - Reflecting on the Supreme Court Judgment on Trans Rights

[00:00:08] Hi and welcome back to Transvox and welcome back to the one and only Jenny Harvey. How are you today, Jenny? I'm very well, thanks, Gill. It feels like it's been a while. I've been missing for a few, so I'm fascinated listening to the ones with far more learned people on them than I. But it is nice to be back.

[00:00:25] What I wanted to do is on the day of the Supreme Court Judgment, I did with Abby Hawker, a sort of quite an emotional, immediate reaction to the act and what had taken place. And I think actually wiser heads of mine have had time to prevail and sit and think and talk about things and get a more objective sense of what this might mean, what it is and what might be, what we need to be doing about this thing and what it might mean for us rolling forward.

[00:00:55] And I think you're going to be more of a voice of reason here. You're quite, not necessarily upbeat, but you're more pragmatic about this. So I think, I think that's the purpose of the podcast today. So people can at least have a more sort of calm, rational judgment rather than my sort of vitriolic yelling and screaming that happened on Wednesday. I'll do it better. It doesn't take much for me to descend into vitriol and screaming, but I shall do my best, Gill.

[00:01:21] Look, one of the things I did is I listened to a clip of Lord Chief Justice, Lord Sumption, who used to be head of the Supreme Court himself, talking on BBC. And he very neatly describes the act and what happened. So I thought it might just be useful just listening to this for about 30, 40 seconds. And then I know you agree with what they're saying, but I think it's quite nice just to hear from a lawyer before we, because I think part of the problem for this is that we're not hearing from lawyers.

[00:01:47] And this was a legalese, piece of legalese. And therefore, a lawyer thinking about this is actually quite important, especially as this lawyer goes on to contrast and slightly challenge the views of Baroness Faulkner later. So let's just see if we can tee this up, see if we can hear him. So this is on the BBC programme on the 18th of April on the Evan Wotsik's face on PM. So let's see if we can hear this.

[00:02:13] There have been a lot of comments from people who suggest that the Supreme Court has taken a position on the great ideological divide over trans rights. But actually, the case is concerned with a difficult question of interpretation of a relatively obscure statute, namely the Equalities Act. And all that the court has decided is that for that particular act, but not necessarily generally, a man and woman have their biological meaning.

[00:02:43] So what does that mean in practice? The Equalities Act makes it illegal to discriminate against trans people, but it allows people to provide certain facilities available to only one sex, such as single-sex toilets, single-sex changing rooms, single-sex schools, single-sex sporting events, and so on.

[00:03:03] And people who provide those kind of activities are not to be regarded as discriminating against trans people simply because they are confined to a single biological sex.

[00:03:18] The reason why that's important is that many organisations, such as employers, sporting authorities, or public bodies of one sort or another, used to argue that they had to admit trans women to women's facilities and activities because it would be contrary to the Equalities Act to exclude them. And what the court has essentially done is to knock that argument on the head. It's held that in the Equalities Act, sex means biological sex.

[00:03:47] Therefore, you are allowed to have schools, hospitals, sporting competitions and the like, and particular facilities like toilets and changing rooms, which are limited to biological women or biological men, for that matter. Now, that is absolutely clear as you've explained it. You're allowed to have a toilet that is biological women only. Yes, and that is not discriminating against trans people. Does that mean women's toilet has to be barred from allowing trans women? No, it doesn't.

[00:04:16] Because that's what everyone's taken it to mean, isn't it? You're not allowed to let trans women in, but it's not saying you're allowed to have one that's biological women isn't the same as saying it's got to be biological women. But that's absolutely right. And it's the main point which I think has been misunderstood about this judgement. There we are, Jim. So, interesting, isn't it? Yes, and that has been, once I crawled out of my slight, just exhausted despair at the judgement, which did catch me off guard.

[00:04:46] I hadn't seen it being telegraphed. That was my understanding of this, in that it clears up, I guess, it defines that language legally. And it's interesting when he said that. It's not about common usage. It's just, in a sense, a definition of a word legally. I am not, for instance, going to stop calling myself a woman because none of us use legal definitions in day-to-day language.

[00:05:11] And that was, in a sense, my take on this. The Act already allows, the Act always allowed trans people to technically be excluded from single-sex spaces. But the advice in it was on a case-by-case basis, and it was pretty rare.

[00:05:30] I think what the danger of this is now, it becomes much more easy because, as he said there, an employer or a body or a shop that has toilets in it and changing rooms or whatever could say, the Act does not compel us to do that. But actually, it doesn't mean that they're going to, as you said, ban people. Because the Act, none of the Equality Act, and I work with it a lot as a trade unionist, it doesn't tell you what you must...

[00:05:58] Parts of it does tell you what you must do to promote. There are things about promoting equality and things within things like the single equality duty, but it doesn't tell you... It tells you what you can't do to discriminate against people. It doesn't tell you that you must ban people, for instance. And I think... So I think he's right on that. But of course, nobody in the UK media, on Turf Island, as they call our place in America, is looking at this through that lens, through a sensible lens.

[00:06:27] And neither are those that... And this is what I find particularly difficult, that J.K. Rowling's celebrating with a cigar and a glass of wine on Twitter, as if somehow this is some great victory for progress, when all it does really is potentially make our lives as trans people more difficult. So just to come in here, though, because the other part of the judgment, which is really important, was to reinforce the fact that the inequality is right,

[00:06:56] is that trans people still have rights as a marginalised community. And I think this will create an interesting debate here, which is saying, OK, if you go to the LGBTI and all these different places, I'm doing my air quotes with your cigar, you've won. But we still have rights. We still have rights for health. We still have rights and needs for treatment and for respect and dignity in the workplace. So I think there will be something needed now to actually redefine our rights in the real world, I think.

[00:07:26] I think it definitely does, because I said two things. I was part of, when the Equality Act was set up, I was, through my union work, was part of the consultation and getting gender identity included in the Equality Act. It wasn't always necessarily going to be included. So it is now included. Gender reassignment is the term they use. Not a term that everybody uses every day, but that's the term they use. And it is explained what they mean by that. And that means anybody that's transitioned or transitioning effectively is covered for that.

[00:07:55] But the point is, though, where this does fall down, is if you, as far as I'm concerned, if you discriminate against me as a woman, then you are discriminating against me because that is my gender identity. But lots of trans people, they're just combined. So you can't say we're not going to discriminate against you as a trans person, but we are going to discriminate against you as a woman. And the same for a trans man.

[00:08:21] Therefore, you are discriminating against me because I have a history different than cisgendered men and women. That's where I think that that's where it is. It is that vulnerability because I believe you are discriminating against me because my gender history, which is what makes me, is different than a cisgendered woman. And therefore, you are discriminating against me because of my gender history, is where I would argue. That's not where the law seems to be going there.

[00:08:49] But if you look at the, again, Equalities Act, that is a form of harassment because actually it can be discriminated. Anyone could be harassed and discriminated against those sorts of things. Because so the thing is, what's going to happen next, I think, is that loads of organisations now are going to leap into policy mode and start thinking, so what does this mean for us? So, for example, I think British Transport Police have already decided, and this is within their right, that male officers will pat down trans women if they are biological men.

[00:09:16] And this is the challenge because, of course, how do you know? So just to clarify that, though, does it say that they will always or does it say that they can? So I think what it says is if a trans woman says, I wish to be frisked by a woman officer, they would say they don't have to do that. And that's a difference. Yes, that's the key, isn't it? Because I imagine many male, cisgendered male police officers would not feel comfortable

[00:09:43] patting down a trans woman, whether technically, biologically or whatever they've had. I just think there's that reality of gap as well. And what I think it means is you can't, which I think police, the police, parts of the police services were already discriminating. I know I read that some forces would record a hate crime against a trans woman like myself as not a hate crime against a woman. There was already that.

[00:10:08] So again, the fact they've jumped so quickly to make these pronunciations worries me a bit. But these were bodies that were already, in my view, not, were already discriminated or taken steps to because of what's happened in the buildup. So just looking at this, just to clarify this. So I'm just reading from The Guardian where they're reporting the words of a spokesperson for BTP who says, under previous policy, we had advised that some of the gender recognition certificate may be searched in accordance with the required sex.

[00:10:38] However, as an interim position, while we digest yesterday's judgment, and I think this is the key, we have advised our officers that any same-sex searches are to be undertaken in accordance with the biological birth sex of the detainee. We are in the process of reviewing the implications of the ruling and we'll consider any necessary updates to our policies. But this comes back to individual policies. And I think this is going to create, over the course,

[00:11:05] it's going to create a bunch of, it's going to create lots of work for lawyers. That's the first thing. So when it comes to things like using toilets and such, like in organisations, you've got provisions from the health and safety executive about the types of toilets you have to provide, but you've also got the ability to provide gender-neutral toilets, third-space toilets, whatever you fancy. It's going to come down to individual preferences. Of course. And the key is that if there's a woman-only toilet or a man-only toilet

[00:11:33] sitting on, basically, that's for that single sex. No, I disagree with you. I think it may be that's for, this does not say, as that law said, you have to say your single-sex toilet is a single biological sex toilet. You can say in your policies that our toilets are inclusive of trans women. We could still have inclusive toilets. What it says is you don't have, so I know what you're saying,

[00:12:01] because ultimately, fundamentally, things like use of toilets are the things that keep us out of society, right? If you can't go and access a loo while you're out. And that, to me, is, if they are going to male or female, saying people can use third toilet, who's going to want to go build an extra lot of toilets for a trans person? Or we should definitely not be using disabled toilets, those are disabled. So there's a practicality issue around that. And, of course, there's never been any evidence of any problems with trans women.

[00:12:29] And, of course, you mentioned the British Transport Police. Who's carrying around gender identity certificates? Who's got them? Who's checking them? Who's checking whether... The whole fundamental of this part is it's unscientific and unpractical, because inevitably also more androgynous-presented females are going to be... It goes back to the old issue. And it's conflated because the lie at the heart of this from the TERFs and the gender-critical mob

[00:12:59] is that there was ever any issue. There was never any issue around this. There was not an issue in 2005 when I transitioned. There was no recourse. There was a Discrimination Against Trans People Act. There was no Equality Act in the same way. It was never practical, never an issue. It is completely conflated, absolutely completely conflated. And part of my hope is it's unworkable to have that situation. And this is important, isn't it?

[00:13:26] Because if you're going out and you currently use toilets without any hassle or whatever it might be, there's no one saying that you have to out yourself. There's no one saying that you have to self-declare a gendered debt recognition certificate or not. No one's saying you have to do this. I think the challenge will come when people start to say people call you out. And I think that's the sort of challenge. But that's already the issue at the moment. And exactly. I've got a friend, which I'm not really out and about socialising now,

[00:13:52] but I've got a friend who says they feel nervous when they're in public spaces about using those toilets. Oh, they do. Which I, and I would if I was doing that. I'm not really out and about so much now. But I did when I first transitioned because everybody, I think every trans woman does, for instance, feel, gosh, am I going to, and I never got any trouble. But I think the issue is it is going to affect more people who aren't able to be perceived as cisgendered women. I aren't.

[00:14:19] You see me, you're likely to make an assumption that I'm trans. So all this, in some ways, it will be seen so that it will be, I'm not expressing this very well, am I? But I need to get through that. It is yet to be seen what the impact of this is, whether it is a narrow legal definition that would enable,

[00:14:44] for instance, a pub with landlords with a particular attitude against trans people to exclude people and declare that so. It would enable them and embolden them. Just like the old, it's similar to that thing about kind of bake a cake for a gay wedding sort of thing that was put to bed. It would enable people with those attitudes.

[00:15:05] And you would like to hope that most organisations and companies would realise that's not in their interest to be horrible like that to a small percentage of the population that aren't causing them any trouble. And you're absolutely right in terms of policy, which is what I do in a lot of my work is do policy. And I've written trans policy for a couple of, or helped write trans policy for a couple of organisations. And I'm going to re-look at it and we might need to change our wording to cover the law.

[00:15:33] At the moment, I think our policy would say something like, the trust considers trans women to be women and trans men to be men. But you could just put another line in, this is in line with the trust values, but the legal definition is such, right? Because I know from speaking colleagues in the NHS and people worry about the NHS in effect, the people in the NHS still want to treat trans men and women correctly.

[00:15:58] There's very few, there's a tiny minority of people who are actually minded to discriminate against us and be like that. I've come across literally one or two people out of hundreds and hundreds of mine, so I don't accept trans people. So people still want to do the right thing because they don't want to be in a situation where they're trying to make people's lives more difficult. So it is going to be interesting, but there is a, I think there is a piece of work for us to do.

[00:16:27] I don't know what you think, Jill. It feels to me like there's sort of a more immediate threat in terms of how this law is going to be coded and actually practically implemented and what advice goes with it from, I think it's the Equalities and Human Rights Commission that help with this, and they've got a poor track record with our community, I'll be honest with you. And then more longer term, actually, the thought that I absolutely hope to is actually this is something we can coalesce around and actually start to organise because, as you've rightly said,

[00:16:56] there are many other areas that aren't covered by this, such as healthcare, that we're not having. We're not being treated equally. And maybe this could be a spark point for us to get, I don't know what you think, Jill, about trying as a community to get more organised. And we've talked before about political lobbying and things. Yeah, that's interesting, isn't it? So people listen to people going to the talks, the demonstrations in London, Manchester Leeds, etc. Talking about this is the beginning of the end.

[00:17:25] And actually, I take a different approach to that. This is the end of the beginning as far as I'm concerned. What happens, the real work is next. And I think what we have to be very careful about is having this huge outpouring of emotional energy and then not realising what happens is next. The thing is, it's pointless spending a huge amount of money trying to contest this because actually, it's very rare to get an appeal against the Supreme Court. By its very nature, it is the Supreme Court. And therefore, it is the final highest court in the land. So what matters is that we should be writing to MPs. We should be going to our unions.

[00:17:55] We should be going to the ECHR. We should be going to any place and sending letters and notes saying it's important that we, to remember that we have rights. And it's important that we can have some pleas. And I think what is interesting is I've said for ages and ages that we need a national campaign, a national GoFundMe. And I see the Good Low Project has raised one. They're already 80 grand. Ah, I was going to say they've done that before. And I think that's...

[00:18:21] So we know that we know there's going to be a lot of legalese old nonsense going on here. And I've talked... And I was saying this six, eight, ten months ago, wasn't I? We needed a national fund meet. And so they're doing it. And it's going to fund their legal expenses, which is really important. And I think contribute to that. I think lots of people are wasting time. Well, not wasting time. I just think in the real world, writing petitions to say, review this, review this, is actually the wrong thing that we need to be on the front foot. It's OK, saying what's next? What is it we want next?

[00:18:49] Because actually, we have entitlements and rights which have been currently enabled. And the risk is that these will be unpicked because we have our attention focused on the wrong thing. And it's important that the trans leadership, many of whom organise the right... Not the rights, the demonstrations at the weekend. We need to be looking at the right things next. Cool heads need to prevail. People with commercial men who can actually focus people on the real life.

[00:19:20] Yeah, I do agree with you. We need to look at the bigger and longer picture. Where I think I disagree with you maybe in terms of campaigning is it's also important to people to be able to... People say, oh, doing a demo doesn't change anything. It doesn't necessarily in the moment. But it's certainly doing nothing doesn't change anything either.

[00:19:41] And actually, as a community, to come together, to feel like we're doing something positive is important to keep energy, keep spirits up, etc. So I've always been a... I've been on dozens of national marches on all sorts of issues. And yes, it doesn't change things in of itself. But I would still maintain the importance. And you're seeing it in America now, where the demonstrator gets into trouble. It's important to start to build that ground as well.

[00:20:07] I think you're right in terms of there needs to be a longer strategy on this. I think it's good that... I was thinking about this. Money needs to be there to fight legal battles when they arise. I think you're probably right. You can't really challenge this judgment. But what we're going to need to do is challenge organisations where we see they're going beyond. And what we would see as a narrow definition in this judgment, such as the Lord described, it doesn't tell you you must ban people.

[00:20:35] It tells you this is what you could do. So we need to... There does need to be legal funds and things to challenge that. And this might coalesce around that. And I think doing whatever you can. When you say trans... I don't think the problem is there is no real trans leadership. There are a mixture of different organisations, charities, campaign groups. I think there's... One thing I've been thinking is how do we bring...

[00:20:58] How do we find a way of bringing us together on a more cohesive trans liberation campaign, such as we had with the gay liberation in the 60s? That's the phrase they used. And I know you don't like using this, but when we see overreach, because this is what I think could happen here, is overreach. And if you're not saying, why are you just carrying on and being... Why overreaching and attacking trans people? They're not causing me any problem in my day-to-day life. So what happened with Section 28?

[00:21:27] I know it's not a simple comparison, but that was overreach. And eventually that was overturned. And people realised it was the wrong thing to do. And when they start to read stories about trans people's lives being made intolerable, if that is the case by people acting on this, then, you know, we will start to turn that biological debate around. Because it's not that long ago where people were really pretty supportive of us as a community. Never...

[00:21:55] We never had the full equality, but people were generally pretty relaxed about trans people for a while. Late 2000s, early 2010s. So this overreach by the powers that seek to push us back into the shadows may be something that turns... That maybe turns the emphasis around. Maybe it's a turning point for us, because we've been battered for the last seven, eight years. Absolutely battered every time in the press. Every legal judgment.

[00:22:25] And the Maya 4 state of judgment is every bit as damaging as this, in my view, that allow people to claim it was a protected belief. That's such... We've been battered and battered and battered. And maybe this can be a turning point if we can organise. I'm trying to think about how we can organise, how I can... The various... I think you and I are a big part of this. The other thing is, I think we need to change, immediately change the narrative about something that we talk about.

[00:22:51] Because we have talked for a long time about what a tiny slice of the community we are. A tiny slice of the... It's only half a percent of us, much like. But I think that's been a... I think that's a mistake, actually. It's about time we started to say, actually, we're a significant part of the community... Significant part of the UK population. Because if you include everyone that's affected by this act, actually, you're looking at all intersex people as well. Non-binary people and everyone in the trans. It's actually a lot of people. And I think we've...

[00:23:21] This is one of the reasons we're not well organised. Because we have this perception that we're invisible because we're so small. And actually, I think it's time to start saying... And I think I've said this many times. We have a very significant impact on the soft power and economy in the UK. And I think the time that we started to say, we mean something, we need to stand up for something. We need to... And we do need to coalesce between... And there are lots of different leaders out there. There's the unions. There's the trans. Yes. You've got your GERES. You've got all your...

[00:23:49] There's loads and loads of people out there, irrespective of your political thing. There's people who are in the corporate world, myself. I've talked to Joanne Lockwood about this. Bobby Pickard. There's lots of people who can individually get on and start doing stuff about this. And it's interesting that there are three or four charities I'm involved with. Every single one of us is now going to organisations and saying, this is what it means for you. This is what you need to start thinking about. And this is what you don't have to do.

[00:24:15] It's that on Tuesday, there are people in the community who are going to be going out there and talking to people in the workplace and in the National Health Service. That's the key. Indeed. Every sizable... Every... Almost most NHS trusts have a LGBT plus LGBTQ plus network, staff network. We have the two trusts I work for. We have sizable networks. And we are starting that discourse. The police have LGBT organisations.

[00:24:43] And they're all going to be starting to talk to each other on this. And that's going to help. Instead of us all being doing our own thing in our own organisation, there is going to be some more cohesion. It's Pride Month coming up. It's never a better time than during Pride Month, which is always about political protests. It was all about changing society. Pride was always political in that small piece sense. And Pride Month's coming up. And this is going to be a massive theme for, I think, the Pride events as well. I'm trying to be positive after...

[00:25:11] I did have a terrible descent into self-pity for a few days, which I think I've got that out of a system now. But yeah, I think your words are very well put. And as I say, we, in a sense, come from different backgrounds, Jill. We're both seeking the same outcome ultimately, aren't we? And we may have different views on our tactics and strategies on this, but ultimately we're seeking the same goal, which is liberation, which is true equity, not just equality,

[00:25:38] true equity and liberation for our community. And as I say, use that phrase, when none of us are really equal until everybody is equal. I think it's just about fairness. Yeah. I think it's a form of social pain. It's a form of... What defines us as human beings is this idea of fairness. But look, it's, as I say, it's the end of the beginning and it's what we do next that matters. And I think each of us can take some action, cool, calm, measured ways,

[00:26:07] then come together and vent and scream and yell and shout. But I think we need to present a much more, I don't know, calm perception. Because actually, by actually being strong and powerful, this is how you get change. What you're absolutely right in is we need to start getting smarter about how we tackle this because we've... Well, and we can be... I think we can be angry while still being considered and whilst not conceding ground. I'm still not going to concede ground. No, you shouldn't be. We shouldn't.

[00:26:37] No, I am a woman, whether the law defines me as such or not. I do think we can do both. I think... And I think we can be... I think we can be smarter, as you said. And there's a more long-term goal, I think. Yeah. I think we need to keep our eyes on that. There's a famous... There's a famous... This is probably a good way to finish, I think. Because we're finishing on a positive, pragmatic note. Yes. And I think there's a very famous person... I can't remember the name of the person who said, it's not about what if, it's about what's next.

[00:27:06] And I think that's the critical thing now. So let's start focusing on what's next. Let's stop knitting the fog of emotional reaction. Let's just get onto the front foot. And let's all of us coalesce and share ideas. If anyone's got ideas, they want to chuck it to us. Gillian at transvox.co.uk. You can send messages to... You can go to transvox.co.uk. You can argue with us, disagree with us, send us ideas. Bice a coffee, whatever you fancy. We're always here to be on your side. And give you an upbeat, but hopefully pragmatic view.

[00:27:36] So thanks, Jen. Yes. Normal treatment we'll resume next week. Yes. I'm sure this is going to be a subject that's going to trouble us for a while. But we're going to take a measured and calm view. And those of you who rebelled against my emotional reaction on Wednesday, then I don't really care. Because it was right at the time, but it's now ready. Yeah, absolutely. Yes, thanks, Jill. It's been really good for my mental health, this chat I've had with you. Solidarity, comrades, is what I'll leave you with. But we will prevail eventually.

[00:28:05] Jenny, as we always say, all that matters is making money. And if we can prove that, the transgender population make tons of money for the National Health Service and all these places. Capitalism will save us. That's right. Capitalism will save us. We'll see. All right then, Jill. Really nice to speak to you again. Thanks, everyone. Bye-bye. Thanks for listening to this episode of Transvox. It's been a joy to have you with us.

[00:28:35] If you want to make contact with us, you can contact us at gillian at transvox.co.uk. And all of our money goes to our nominated charity. And Jen, you've chosen the charity for the next number of episodes. Which one have you chosen? Our charity is called Beyond Reflections, which is a charity that provides support and counselling to trans people, non-binary people and their friends and their families across the UK. An amazing charity doing some amazing work.

[00:29:04] Really important. So please, if you can give. Great. And if you want to go and have a look at Beyond Reflections, it's beyond-reflections.org.uk. But as I say, if you'd like to make a contribution to what we're doing, because we love to help the people who help us. Again, if you've got ideas for the show, things you'd like to ask us, questions, comments, applause, or brick baths, feel free to send it all in to gillian at transvox.co.uk. Until the next time, goodbye. Bye-bye.

[00:29:34] Bye-bye.