The British Supreme Court ruled on April 16, that “woman” and “sex” in the Equality Act 2010 (the EA) refer to the sex assigned at birth in a case that was pushed for and funded by the British gender critical movement.
In essence, the judgment has found that being a woman entails having an XX chromosome, large gametes and the ability to produce children. This judgment means that trans women with gender recognition certificates (GRC) will no longer be legally defined as women under the EA.
This is a fundamental attack on the human rights of trans people.
The case was brought by the gender critical campaign group For Women Scotland (which is funded by J K Rowling). They argued that transgender women should not be viewed as “women” for the purposes of occupying places on public boards set aside for “women”.
Both the Scottish government and the Equality and Human Rights Commission intervened in this case to clarify that the term “woman” under the EA included trans women who hold GRCs. But today the Supreme Court has overturned those interpretations.
The immediate result is that trans women will no longer be able to sit on public boards in places set aside for “women” under the EA. But the decision has wide-reaching implications for how trans people live day-to-day.
The purpose of this ruling is to discriminate and force transgender people back into hiding, because the real fear has always been that heteronormative homogeny will collapse thus threatening the capitalist, patriarchal superiority by which our world is run.
This new ruling will be extremely detrimental to trans people across the country — both for those who have already gone through the very arduous process of getting their GRCs and for those who do not yet have GRCs or who do not intend to obtain a GRC. The judgment comes as the trans community faces attacks on their health care following the recent Cass review and from the everyday public (a 186% increase in half a decade). Whilst gender critical “feminists” believe that the ruling will provide security for cis women in its strict definition of what a woman is, the decision will only harm cis women and create even more insecurity for trans people.
In summarising the judgment, Lord Hodge was adamant that the act will continue to give transgender people “protection, not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender”.
However, this leads to further questions rather than concrete answers. How do you balance sex characteristics with gender reassignment characteristics? How do you prove sex discrimination when you are not recognised as that sex? What about gender non-conforming or non-binary people who do not align with their sex assigned at birth but do not “choose” a gender to be reassigned to? And what of intersex people whose “biological sex” does not fall easily into this rigid view of male and female.
Hate built on lies
The ruling reinforces the damaging falsehood that trans women are dangerous predators — men disguised as women to gain access to safe spaces — and that trans men are but long-lost lesbian sisters, confused and taken advantage of by the woke trans agenda. Both stereotypes strip transgender people of agency, safety, humanity and dignity.
The counter argument from the gender critical movement is one of “protecting women and girls”. The sentiment stems from a real problem in society of male oppression against women; it is not unfathomable to expect women to act out of fear. However, pitting a vulnerable group of women against the safety of all women is a falsehood peddled by wealthy, right wing, reactionary figures to fight against an “oppressive woke agenda”.
As Judith Butler, the famous gender theorist said, “feminism has been about contesting received notions of what a woman is”. The continuation of feminism rests on keeping this question open as a response to a society that tells women “you’re good for social reproduction and you’re good for housework”. So, closing this fundamental question about what a woman is, defies the work of feminists who have systematically fought for women’s liberation away from these oppressive gender norms that keep us enslaved under the capitalist system.
And what of the practical impacts that this ruling will have on cis women? What do we tell our young women when we say “a woman is only biological sex”, that a man is also only biological sex? That because of a man’s biological sex, he is right to partake in oppressive structures of male hierarchy? That his desire to rape and sexually assault women is justified because of his biology?
This ruling is much more than a question of “who is being protected” because it raises the question of “protected from whom?”. There is no evidence to suggest that cis women are at risk of violence from trans women. The high rates of sexual assault and rape on women from cis men are continually ignored. More rapes and assaults are suffered at the hands of family, friends and lovers than through assaults in single sex spaces like bathrooms.
Trans people, especially trans women and even more so racially oppressed trans women, are at especially high risk of assault and sexual assault. Framing them as the problem amounts to a shockingly cruel attempt to shift focus away from the social structures that put all women in danger.
Additionally, cis women who do not conform to feminine sterotypes in their gender presentation are at risk of being “transvestigated”; there have been many instances of cis women, particularly butch lesbian women, being harassed and attacked when using women’s facilities because they are perceived to be “men”. This judgement will further empower those who wish to carry out harassment and attacks of this kind.
To see how this judgment will harm cis women rather than protect them — as argued by the gender critical movement — we need look no further than the following recent example. In 2021, the gender critical movement attempted to remove Gillick’s Competence, a law that states that under-16 year olds can get medical treatment without their parents consent, claiming this was a gateway to young people transitioning. However, upon further inspection, this law is used mainly by young cis women trying to receive contraception without parental consent rather than by young trans people.
Prominent anti-trans gender critical “feminist” Kellie-Jay Keen (aka Posie Parker) spoke openly in favour of re-thinking Gillicks Competence not only in regards to anti-trans rights but also of children’s access to “dangerous contraceptives” and “abortion”. On further investigation, it was found that Posie Parker’s tours were funded by the Conservative Political Action Coalition who spoke openly about the “eradication of transgenderism”.
The gender critical movement directly aligns itself with far-right anti-abortion groups, opening the door to the far right under the guise of feminism and protection of women.
Not just trans women
Today’s interpretation of the act is not only obviously transphobic but also deeply queerphobic and misogynistic. The judgment seems to suggest that trans people will no longer be able to use single sex spaces that align with their gender.
The purpose of this ruling is to discriminate and force transgender people back into hiding, because the real fear has always been that heteronormative homogeny will collapse thus threatening the capitalist, patriarchal superiority by which our world is run.
The women in the gender critical movement act based on fear; fear that their position as women is under attack. They fail to recognise that their position as women is one of oppression under patriarchal capitalism and instead only entrench their own oppression further by using their power, and the history of feminist movements, to oppress another marginalised group.
It is clear to anyone willing to see it, that it is much easier to move through the world as a cis man; there is simply no need for men to disguise themselves as trans women to gain access to women and take advantage of their bodies.
We already live in a world where this is easy and expected. Our lack of rape and sexual assault convictions speak for themselves. In a world where a cis man can be found responsible for rape and still become President of the United States — twice — why would any cis male predator go through the difficulty of pretending to be trans in order to rape cis women?
This amendment ruling is a dark day for the trans community and intersectional, non-exclusionary feminists everywhere. It is a sign of the growing authoritarian views in society that reduce our powers to live as we want, instead forcing us into more and more narrow definitions of what it is to be human.
But we must continue to fight against it, call out the connections to far right hate groups, and name the real cause for the oppression of women and girls, including trans women and girls: capitalism.
[Reprinted from . Paris Wilder is a member of Anti*Capitalist Resistance.]