The EHRC’s letter redefining ‘sex’ is nothing more than cruelty

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Last week, I wrote an explanatory piece on the EHRC’s (Equality and Human Rights Commission) recent, extraordinarily transphobic advisory letter. The article explained that:

On Monday 3 April, the EHRC (Equality and Human Rights Commissionpublished a letter concerning a potential change in the legal definition of ‘sex’ in the Equality Act 2010 (EA). This would essentially redefine ‘sex’ to mean ‘biological sex’. In turn, this would strip trans people of a broad swathe of their current legal protections.

I also stated that I didn’t think the proposed changes would actually take place. Or, at least, they wouldn’t become law anytime soon. The Equality Act 2010 (EA) isn’t just a single piece of law. It’s 116 formerly separate laws stacked on top of one another. It would require time, will, and massive effort to change. The Tories will lack all of these with a general election looming.

On top of this, former EHRC legal director Grey Collier declared the proposal to be unworkable. Collier wrote:

The proposed change in the law is nonsense on stilts. The suggestion is legally illiterate, unworkable and is just another way of using trans people’s actual lives as a pawn in the culture wars.

It would overturn some of the purposes of the Gender Recognition Act and make it possible to discriminate against trans people in a whole range of circumstances where it is currently outlawed.

Even the government itself claimed there was “no need” to reform the EA just two months before the letter. However, the workability of the proposal isn’t the point. Getting it passed isn’t the point.

Read on...

Starting from the endpoint

The EHRC’s letter begins with a singular assumption in mind. It starts from the belief that trans people are not their gender, and assumes that we will only ever be the sex that we are assigned at birth. Then, it works forward from that forgone conclusion. For example, it says:

At present, a trans woman with a GRC can bring a claim of direct sex discrimination as a woman. A trans man with a GRC could not. The proposed biological definition would reverse this situation. The effect would be to transfer the right from some trans women to some trans men.

It also finds fault in the fact that:

Currently, trans women with a GRC could benefit from ‘women-only’ shortlists and other measures aimed at increasing female participation. Trans men with a GRC could not. A biological definition of sex would correct this perceived anomaly.

These are only anomalies if we do not believe that a trans person is their gender. There is no other possible reason to want to put trans men on women’s shortlists. Likewise, there’s no other motive to prevent a trans woman from pointing out that she is being discriminated against as a woman.

Misogyny affects anyone society perceives as female, or too close to womanhood more broadly – cis or trans. As such, a trans man may well be discriminated against because he’s perceived as a woman. Perceptions are never hard and fast. They change from person to person, and situation to situation. One of the earliest things most trans people learn upon transitioning is how contingent and fluid people’s perceptions of our gender really are.

Again, the fact that the law is currently too rigid to recognise this fact is not a valid reason to introduce further rigidity.

Failing already? Fail harder

We see this same problem play out repeatedly throughout the letter. It frequently points out a way in which the law is already failing trans people, and then use that as a justification to make things worse. This is as infuriating as it is downright cruel.

For example, the preamble of the letter states that:

many trans people today would not describe themselves as transitioning from one sex to the other, but rather as living with a more fluid gender identity or without reference to a binary gender identity at all.

This is completely true. There are many genderfluid people. The same is true of non-binary people. I’m one of them. The laws of the UK already prevent us from obtaining documentation which accurately reflects our genders. However, this isn’t and shouldn’t be an excuse to prevent our binary trans siblings from being recognised as their gender under the law.

The same tactic is at play when the EHRC’s letter moves on to the lack of protections for trans men and mascs who have given birth. It states:

As things stand, protections in the EqA for pregnant women and new mothers fail to cover trans men who are pregnant and whose legal sex is male. Defining ‘sex’ as biological sex would resolve this issue.

Trans mascs already experience massive disadvantages and discrimination in perinatal healthcare. This is made worse by the fact that UK law fails to provide them with the same protections as cis women. The EHRC clearly recognises this. The fix for this – if we were working from a position of good faith, god forbid – is to expand the law to recognise that trans mascs can and do give birth. Redefining them as women only heaps insult on injury.

More sexualities in heaven and on Earth

But then, heaping insult on injury is the point of this proposal, isn’t it? Its baseline assumption is that people should be able to discriminate against trans people. It assumes that not only is the public as bigoted as Badenoch and her ilk, but that this bigotry is worthy of protection.

Take for example the statement that:

As things stand, a lesbian support group (for instance) may have to admit a trans woman with a GRC attracted to women without a GRC or to trans women who had obtained a GRC. On the biological definition it could restrict membership to biological women.

This part, I found particularly infuriating. Since I came out, some of my greatest supporters and allies have been lesbians. But it’s not just me. Gay Times recently ran an article stating in no uncertain terms that lesbians being anti-trans is in and of itself a lesbophobic trope. It bore this out in statistics:

Lesbians are the most likely to say they know a trans person (92%), and also the most likely to say they are “supportive” or “very supportive” of trans people (96%). That’s compared to 89% of LGBTQ+ people overall, and just 69% of non-LGBTQ+ people.

Further than this, I know plenty of trans women and femmes who are dating cis lesbians. I know trans lesbians who date trans women and femmes. Hell, I know lesbians of all stripes who date trans men and trans mascs, too. I’d wager that most queer people can say the same.

But there’s a point I’m trying to get at here. The EHRC and the law’s narrow description of sex as a binary, and sexuality as rigidly tied to sex, fails to live up to the real life experiences of – and definitions used by – actual lesbians.

People are free to date whoever they like. If you define your sexuality by your partner’s chromosomes, that’s your prerogative. However, you’re not allowed to define how I or anyone else describes their sexuality – even if it’s trans inclusive. And what I’m not seeing is a reason why the prejudices of a tiny minority of transphobic lesbians should be enshrined in the Equality Act.

Cruelty is the point

I’m going to finish with what I think is probably the most succinct demonstration of the attitude underlying the EHRC’s letter. It holds that:

At present, the starting point is that a trans woman with a GRC can access a ‘women-only’ service. The service provider would have to conduct a careful balancing exercise to justify excluding all trans women. A biological definition of sex would make it simpler to make a women’s-only ward a space for biological women.

The EHRC’s own guidance already states that trans people can be excluded from single-sex spaces. It just has to be shown that “limiting the service on the basis of sex is a proportionate means of achieving a legitimate aim“. The things outside of this remit are – by definition – disproportionate and illegitimate. The proposal of the letter simply seeks to make this kind of discrimination easier, by removing the requirement for having a reason beyond ‘we don’t like trans people’.

As ever, the point of the EHRC’s proposal – and Badenoch’s original question – is its cruelty. It sends a clear message of ‘this is what we’d do to you, if only we could’ to trans people. What’s more, it signals to the Tories’ rabid voter base that the party is on-side – it hates all the people they hate, and it would hurt them at the first opportunity.

But this isn’t even the thing that really got me. Trans people in the UK are well used to their role as one of the government’s many scapegoats du jour. The cruellest thing was not that they promised to take away my rights, but the mealy-mouthed words ensuring the reader that it was on behalf of trans men, on behalf of lesbians, for the sake of non-binary people.

A new challenge, then. If you want to hurt people like me, by the law or otherwise, stop hiding it. Stop saying it’s for our benefit. Don’t blame some subset of trans people, when you can see that the government targets all of us. Say it with your chest: the cruelty is the point.

Featured image via Wikimedia Commons/ Ehrc123, licensed under the Creative Commons Attribution-Share Alike 4.0 International license, resized to 770*403

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