Towards the end of her life, I was a friend of the writer Jan Morris. I had known her for many years and, much to my regret, had declined an offer to do her “tell all” interview when she transitioned. Jan presented herself as a woman and had undergone an operation. To me she was simply a remarkable woman. She touched, sometimes humorously, on embarrassing incidents in her life. But it never occurred to me that a legal ruling might hover over our restaurant table and block her from going to the ladies.
Last April, the supreme court issued a ruling confirming that the word “sex” in the Equality Act 2010 refers to biological sex, not a person’s legal gender. This has a wide-reaching impact on how equality law is applied in practice, particularly in providing sex-based rights such as single-sex spaces. Six months later, a draft code on the ruling’s implementation was sent by the Equality and Human Rights Commission (EHRC) to the equalities minister, Bridget Phillipson. She has been sitting on it ever since, pleading for more time.
To be fair, this territory is deep in fudge. The court verdict was ostensibly clear. Girlguiding was for girls, the Women’s Institute (WI) for women. If a toilet says it is for “women”, it means biological women. But the issue is not so clearcut for former supreme court judge Jonathan Sumption. He told the BBC that what the court really meant was that women-only services “are allowed to exclude trans women from facilities, but are not obliged to do so”.
With this the outgoing EHRC chair, Kishwer Falkner, disagreed. Speaking to the BBC, she said: “If a male person is allowed to use a women-only service or facility, it isn’t any longer single-sex, then it becomes a mixed-sex space.” Presumably, if the WI wanted to allow trans women as members, then it would become the “Women’s and Trans Women’s Institute” and would need unisex loos.
Whose interpretation is correct? The EHRC has since taken down interim advice on the subject from its website. Everyone is waiting for further guidance.
Common sense must be with Sumption. Sex as defined as biological sex should clearly apply to physical sports, but less so to most women’s clubs or job quotas or competitions or restaurant loos. Trans people have a right to dignity and respect. Over the decades, the tiny percentage of the population who have transitioned have quietly integrated into the community. The gender recognition certificate – used for new passports – need not have legal status to be informally acceptable in most circumstances.
The few trans people I have encountered are discreet. They avoid controversial situations and do not march for “trans rights”. They understand that they are exceptional and that it will take time for many others to accept them for who they are. It is for the world to judge whether to accept them as such, but in my experience most people are ready to do so, and most institutions as well. It is for Refuge, the women’s rescue hostel service, to decide whether it will or will not accept trans women. It has decided it will. The most liberal interpretation of the supreme court judgment is plainly called for.
We are dealing here with the most intangible of phenomena, the pace of change within society. It was much the same with other exceptional groups, such as gay people, immigrants and some religious minorities. Often, as in the Church of England, objections become overt and lead to bans and litigation, as over the status of property in single-sex marriage. But change comes about fastest when the least fuss is made, and when a minority knows that it is initially different and reacts to antagonism with moderation.
The new code needs to be nuanced, to suggest how single-sex bodies might help trans people towards acceptability. Rights are always sensitive, but there should be few cases that require litigation. The courts are a clumsy discipline to apply to the intimacies of social relationships. This is a real mess. If ever hard cases made bad law, this is a classic.
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