We have a new development, hot on the heels of the BMA Resident Doctors Committee declaring trans people need support on compassionate grounds at the weekend. The dust is still settling on that, but yesterday Britain's only publicly 'out' transgender judge declared she has backing to challenge the Supreme Court ruling in the European Court of Human Rights (ECHR).
To recap, the situation in the UK is the Supreme Court ruled on 16th of this month that in respect of the Equality Act 2010 (EA2010) the word 'woman' means 'someone whose biological sex is female'.
Less in the headlines is they have also confirmed that the Gender Recognition Act 2004 (GRA2004) still applies and that someone who has either a Gender Recognition Certificate or has undergone Gender Reassignment Surgery remains a woman in the eyes of that Act.
Notice there is no mention here about transmen or non-binary people (despite the EA2010 protecting some transmen) because neither the EA2010 nor the GRA2004 mention non-binary folk. The Supreme Court ruling on 'what is a woman', is purely in within the scope of the EA and the fallout has been that no-one but people whose 'biological sex' is female can use female facilities.
Background: In the UK the number of trans people of all descriptions is thought to be about 0.5% right now. Non-binary people are becoming more frequent, although they probably represent a small fraction of that percentage right now, but if we assume half of that 0.5% were assigned male at birth (AMAB) and all of them have either started treatment with hormones and surgery, and have been out of their homes in the gender of their choice, that means we're talking one in four hundred of the population who might have accessed female facilities and who are trans.
This is in line with astronomer Piero Sicoli's calculation of the odds that asteroid 2023 DW would hit the earth. Could you name this asteroid? Did it fil your nights with fear in case it landed on a public toilet?
Whatever, keep this figure in mind, because there are pressure groups who are acting as if this tiny number of individuals (virtually all of whom desire more than anything else not to get noticed) are the thin end of a fifth column whose evil mission is to roll back women's rights in their entirety.
Being fair, there have been errors in force and direction on both sides (I'm particularly looking at you, Stonewall), which haven't done anything to lower the temperature, but we got to where we are now because the law relating to gender has been an accident waiting to happen for 21 years. That's on our government and its predecessors.
The judge who plans to bring the case to the ECHR had applied to be make a submission to the Supreme Court, only to be declined along with at least one other trans person. Yet the Supreme Court did hear the views of cis people, despite the case involving the protected rights of trans people.
Until a short time ago, the judge concerned was held up by the judiciary and the government as an example of how inclusive the legal system in the UK has become.
However, she resigned last year when became increasingly obvious her transness was being (this is not her word) exploited by a system which, as the Supreme Court judgment has demonstrated, did little more than tolerate trans rights under the GRA2004. She didn't mince her words in her conclusion that, 'the national situation is no longer such that it is possible in a dignified way to be both 'trans' and a salaried, fairly prominent judge in the UK.'
The legal system isn't exactly hot on women's rights, either, just count the number of female supreme court judges. Pale, male and stale doesn't begin to describe it.
So, our new heroine, and that's what she is because the path she's chosen will be a hard one, has made it clear the issues she's taking to the ECHR are relevant not only to transwomen, but to all women and especially women who are perceived as unfeminine.
The latter group are in the firing line now the genie is out the bottle, because unfeminine looking women are an order of magnitude more frequent than transwomen (remember, transwomen are at most 1:400 of the population) and it seems only a matter of time before women who don't match the stereotype of femininity are facing questions in toilets. God forbid we should come to this.
Our judge has also made the case she has female genitalia and that it's not safe for her and other transwomen who have had bottom surgery, to use men's toilets. Since a major plank of the anti trans movements campaign has been about making women (who have female genitalia) safe from men (don't make me write it) this is slap your forehead stuff. But despite coming from the Journal of the Bleeding Obvious, it has taken all this time for someone to say it.
How will this appeal do? I have no idea, but I can't believe we'll ever find a better advocate, nor one as well resourced. One weakness of the Supreme Court decision is that while they glibly talk of 'biological sex' the attempts to define such a thing under UK law have failed to provide something which stands up to scientific scrutiny.
Intersex hasn't been mentioned, but the Supreme Court judgement leaves the majority of such people, who even anti trans campaigners would think of as being women, defined as men. So there's that, but there's also the issues the Residents Committee and our new judicial champion have raised, which are about compassion, dignity and respect, not one of which our opponents are willing to concede us right now.