LAST September, a rape crisis centre in Edinburgh was censured in a review by Rape Crisis Scotland for failing to provide women-only spaces. By women-only, the review meant natal women. It rejected the more inclusive, yet more opaque, definition that would have included trans women. Requesting such an exclusion is not necessarily bigoted. Women seeking solace at a rape crisis centre are uniquely vulnerable. They have been assaulted in the most intimate and degrading way by a man, or at least by someone with a penis. To suggest that they may want to seek care and recover in a space separate from men, or from anyone with a penis, is not irrational. It is to respect their dignity.
But trans women are not immune from sexual assault. They are just as much at risk as natal women, if not more so. However harm is defined, whether verbally, physically, or sexually, trans women are disproportionately likely to suffer it. By virtue of falling outside of society’s gender binaries, trans people are ripe for ridicule and for abuse; and, by virtue of falling outside of this binary, they are less likely to be offered support and compassion in the aftermath of an assault. Banning them from crisis centres is to remind them of their otherness. From this perspective, letting trans women access and work in rape crisis centres is to respect their dignity.
The tension is obvious. There is no satisfactory way to square the circle; one group must give way to the other. But which group and in what way is not obvious. The answer cannot simply be to label one group more oppressed and to side with them. Rights are not hierarchical, being distributed first to the most disadvantaged and upwards from there, as though they were medals in some oppression Olympics.
Rape crisis centres are not, evidently, the only place where there are competing rights and interests between trans women and natal women. Outrage, some of it genuine, some of it confected, has broken out over prisons, hospital wards, sports, and, incongruously, boardroom quotas. It was the latter that were directly in question before the Supreme Court in last month’s gender-rights case, For Women Scotland v. The Scottish Ministers.
UNDER the Equality Act 2010, the Scottish Government had instructed companies to count trans women (although only those with a gender-recognition certificate, or GRC) as women for the purpose of board quotas. For Women argued that this was a misinterpretation of what the Act meant, and that it denied natal women places that lawfully belonged to them.
They first challenged it in the Scottish courts, where they lost. There, the Inner House of Session concluded that trans people “without a GRC remain of the sex assigned to them at birth”. Those with a GRC, in law at least, became their new gender “for all purposes”, following 2004’s Gender Recognition Act. Whether this was the right interpretation of the Equality Act was the question before the Supreme Court.
What the Supreme Court was not doing was weighing up the two groups’ competing rights and deciding whose should prevail. Nor was it setting out an ontological definition of womanhood for the ages, but a definition of “women” for the purposes of the legislation.
On this question, the answer was more straightforward than some of the rhetoric around the judgment would suggest. Lord Hodge observed that the justices could “identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010” should not apply to “women and girls . . . with their shared biology”. If the Equality Act was not intended to apply to natal women, a significant range of protections and provisions would have been redundant, while it “would be surprising if the words sex and woman were intended to have different meanings . . . [across] the EA 2010”.
It would be just as surprising if someone’s “sex-based rights and protections” were contingent on knowing that they possessed a confidential gender certificate. This would have been the outcome if the Scottish Government had won. Trans women would have had equal rights as women, so long as they could prove their womanhood.
To many, this result would have been just as distressing and degrading for trans people. It would have created a hierarchy of “transness”, where some trans people were entitled to rights and protections, and others were not. That this decision has led to the denial of some protections to trans people is tragic, but perhaps inevitable. Self-ID — the most sympathetic method and the one favoured by most trans groups — is too nebulous, and this may be why the Scottish Government did not advance a case for gender to be defined on this basis.
Accepting that sex and gender are not binaries but continuums, albeit ones heavily weighted at each end, might accurately reflect the nuance of human biology, but what is gained in biological subtlety is lost in societal practicality. It makes the question what constitutes a woman or a man so indistinct as to be meaningless as a matter of law.
MUCH of the criticism directed towards the court damns it for not taking this nuanced perspective, but then trails off without explaining how it should have defined gender.
Dr Alex Benn, a lecturer at Oxford and a barrister, criticises the court for not properly defining “sex . . . at birth”, but fails to set out exactly what they think sex or gender is, other than saying that there “is nuance about how societies gender a large variety of behaviours and bodily characteristics”. Even if the Government had tried to run a self-ID argument, letting someone’s gender be up to a person’s sense of self was never a practical option. The law does not lend itself towards uncertainty. Letting men declare themselves women, as in the case of the rapist imprisoned in a women’s prison, was not going to happen.
Yet the glee around this decision is regrettable. For many trans people, most of whom were living peaceably until they became pawns in a culture war, this judgment has made their lives a misery.
The Equality and Human Rights Commission, an independent and authoritative regulator of rights in the UK, has issued guidance interpreting the judgment in the most degrading way possible for trans people. It mandates that public spaces and organisations must treat trans people according to their natal gender; for instance, trans men must use the female toilets, and vice versa. Nothing in the judgment requires this. As Lord Sumption, a former Supreme Court justice, said to Radio 4, the decision allows organisations to exclude trans people from gendered spaces if they consider it necessary. It does not order them to do so as a matter of course.
Nicholas Reed Langen is a writer on legal and constitutional affairs, and editor of the LSE Public Policy Review.
