By LUCU Committee

The LUCU Committee is deeply concerned about the impact of the recent UK Supreme Court ruling that the protected characteristic of Sex within the Equality Act 2010 refers to ‘biological’ sex as recorded at birth, and not lived gender. The ruling stipulates that this even applies to individuals who have obtained a Gender Recognition Certificate, which effectively excludes transgender individuals from protection against sexism they might suffer in their lived gender. 

As a small and vulnerable community, trans people are being used as an easy first target in a wider backlash against progressive ground gained internationally for women and LGBTQIA+ people. Ironically, although the campaign was led by women, the outcome problematically pits cis women against trans women, and lesbian, gay and bisexual people against trans people, who should, we believe, be natural allies in the fights against sexism, misogyny and homophobia.

The legal challenge which led to this ruling did not arise in a vacuum, but was the result of a series of legal challenges brought by the campaign group For Women Scotland (FWS) and funded by author JK Rowling. By insisting ‘biology is destiny’, these arguments not only deny the legitimacy of trans experiences, and trans women in particular, but also hold the potential to be used to reverse the hard-won gains of all women for gender equality and push narrow, outdated and gender-stereotypes on both men and women. It is clear to us that both misogynist and transmisogynist cultural forces and campaign groups are connected and growing in strength and confidence, and we must work together to resist them. 

Returning to the detail of the Supreme Court ruling, this interpretation generates several further problems in and of itself, not least because it over-simplifies the concept of sex, which in reality exists on a spectrum, and further erases the existence of people who are intersex, a community already severely marginalised in law and cultural awareness. Moreover, the gender policing of trans women simultaneously further marginalises trans men while harming, rather than protecting, lesbians and masculine-presenting women.

‘Nothing about us without us’ is a familiar refrain and key principle of meaningful equalities work, yet this judgement included no testimony from trans people. The Good Law Project believe that the ruling violates the UK’s obligations under the Human Rights Act and the European Convention on Human Rights (ECHR), and is asking the High Court for a declaration of incompatibility.[1]

Compounding the problems of this judgement, the Equality and Human Rights Commission, which has seen a wave of resignations and criticism over its increasingly transphobic positions in recent years, has released interim guidance which seeks to dramatically expand the implications of the judgement.  In documents released and interviews given by EHRC Chair Kishwer Falkner, proclamations have been made about excluding trans people from facilities such as toilets and changing rooms: not only those aligning with their lived gender, on the basis that they are a different sex from those for whom the facility is intended, but also those aligned with their ‘birth sex’, because their transition likely means that they do not present as the sex for which the facility is intended either.

This risks locking transgender people out of all available facilities. Falkner has claimed that trans people should instead use their ‘power of advocacy’ to ask for facilities including a ‘third space’ for toilets – ironically a move which, even if it were feasible, would force all trans people to use mixed sex facilities. She has also suggested that the judgement excludes trans athletes from participating in sports in alignment with their lived gender, a view echoed and welcomed by Loughborough University Chancellor Seb Coe, in his role as President of World Athletics. 

It is critically important to emphasise that many of these, and other, supposed implications of the Supreme Court judgement circulating online and in the media are highly speculative at best. The Good Law Project has produced its own response, giving clarity over what the judgement in fact does and does not mean, and urging organisations not to make hasty policy changes that further marginalise people who are trans and potentially violate their rights. 

Loughborough UCU maintains unwavering support for the rights of women to safety and security in a world which is still deeply misogynistic and where violence against women and girls remains endemic.  We do not believe, however, that the long list of dangers to women includes trans rights.  It is cis male violence against women that is and has always been the biggest threat to women’s safety, most commonly within intimate partner relationships.

Contending that trans women regularly and systematically gain access into women’s spaces by deception is a strawman argument used to drum up fear that we wholly reject. There are certainly complexities raised by the very real need to provide safe spaces and charitable services for all women, but again, these small logistical challenges are given much greater prominence than the real threat which is the drastic underfunding and under-provision of these services. And we categorically disagree that this complexity gives anyone the right or the rationale to invalidate trans people’s experiences of gender, and importantly, to police their access to public spaces, such as toilets.

We see the targeting of the trans community, under the guise of defending women, as a cynically deployed, racially charged, divide-and-rule tactic which allows the real issues, such as partner violence, rape culture, sexual assault, and structural misogyny, including in institutions such as the police, to go unchallenged. The claim that this issue is about women’s safety is therefore disingenuous; if campaigners and legislators honestly cared about women, they would be tackling the myriad root causes of violence against them, rather than throwing trans women under the bus.

In collaboration with the LGBT+ Staff Network, LUCU are in conversation with University management as we seek to assure trans members of our community that their access to the broad range of facilities and services within the university will not be affected.

National UCU is prepared to challenge any legal interpretations or implementations that infringe upon the rights of our trans and non-binary colleagues. Reaffirming our dedication to equality, inclusion and respect for all, UCU stands firmly with trans and non-binary members, and all women, in the continued fight for civil rights, equality, and an end to gender-based violence.

[1] A similar legal campaign is what forced the UK government to implement the Gender Recognition Act 2004 and give legal recognition to the lived gender of trans individuals.