211. TRANS RIGHTS ARE HUMAN RIGHTS - Why the UK Supreme Court Got It Wrong
Philosophers know all about the importance of defining words. For many of us that is the entirety of the job of philosophy: clarification of concepts. Untangling linguistic messes and distinguishing distinct ideas from one another. Rather tellingly though, philosophers who think such analysis is the sole business of philosophy frequently find themselves coming up against the criticism that there is more to life, and indeed to knowledge, than conceptual definition. That something vital is missing when all we do is concentrate on words.
As an example, one might decide a concept like “knowledge” needs some clear definition to make the state of knowing different from the state of merely believing something or holding an opinion. At the same time, once defined in the abstract, we might then, rightly, ask what use such a definition is if such a concept - justified, true, belief, say - is impossible to hold or even identify in every day life: the domain in which the concept is actually needed? After all, the “truth” condition is tricky to confirm without fallibility. Given that I can’t say with any certainty that we are not currently living in a computer simulation, or that we are not merely a brain in a vat, then I cannot even have knowledge of my own experiences (they may not be true, even though I believe in them and have justifications for those beliefs).
So philosophers might identify different levels and uses for the meaning of words. We may well have a conceptual definition in the abstract of what “knowledge” might be in its purest form…but we might also have a more pragmatic definition of “knowledge” for use in every day life. One focused more on reliability and proximity to likely truth than to a definitive demand for actual truth.
Philosopher, Sally Haslanger, for example, argues that the success of our definitions reached whenever we ask “what is X?” depends on the function for which we are seeking that definition in the first place. She distinguishes between conceptual questions about ordinary use of the word, and where we might find agreement about what X is; descriptions of what the word actually refers to in the world so that paradigm cases of “X” can be described out of identified instances of “X” and it be seen what they have in common; or analysis of the purpose given for having such a term in the first place (and whether that purpose is valid).
The UK supreme court’s decision on April 16th that, within the Equality Act 2010, the legal definition of a “woman” did not include transgender women who hold gender recognition certificates, conflated many different approaches to definition in its disastrous ruling. While it appears to be qualifying its definitional thinking around the specific purpose of the Equalities Act, the judgement relied on what they called “the ordinary meaning” of words like “man” and “woman” to reach an exclusionary conclusion that the legal definition of “woman” is based on “biological sex”. A conclusion which seems, for the trans community, and those of us who care about that community, to be the very antithesis of the ideas of equality the 2010 Act was trying to protect. Furthermore, it reached this conclusion largely pragmatically, on the reasoning that any other definition operating in the Act would have led to “practical difficulties” since 2010 for providers of single-sex spaces.
The reason I call the decision “disastrous” and “exclusionary” is simple. It will exclude trans people within public spaces in ways that will be disastrous for them. Despite the court’s lip-service assurance that this judgement does not suddenly make it ok to discriminate against transgender people in the UK, in practice it absolutely does in ways that are both predictable and disgraceful.
Immediately following the court’s ruling, the Equality and Human Rights Commission have given guidance to public-facing services that “trans women (biological men) should not be permitted to use the women’s facilities and trans men (biological women) should not be permitted to use the men’s facilities”. Besides from the fundamental erasure of trans identity the ruling imposes (basically saying a trans person will forever be bound, in the public eye, to the biological sex they do not identify with. After all, there is no “debate” here if we simply accept trans men and women as men and women. But the court’s judgement does not allow us that possibility, dismissing the trans experience as almost some sort of private fantasy the rest of society no longer have to entertain), there are implications for all state-run services in particular, who must be compliant to whatever the latest statutory guidance on them becomes, that will inescapably make trans lives more difficult. NHS hospitals, our prisons and our schools, will no longer be welcoming or considerate spaces for trans men and women, who will now have to navigate their already complicated needs for healthcare, security or education around the psychological toll of having to intentionally misgender themselves or be treated as someone they are not in order to get access to essential services or maintain their dignity and safety if incarcerated.
The pain these exclusions will cause, and the unnecessary additional difficulties that have now been added to the lives of those in the trans community, are not unexpected consequences of an academic exercise in abstract definition. They are not even expected, but unfortunate and unwanted, consequences. They are precisely the intended consequences the legal challenge that gave birth to them desired from the gender-critical campaigners striving to get trans people (specifically trans women, who they see as biologically male and therefore still men) out of single-sex (specifically female-only) spaces. This exclusion is not a bug, it is a feature of the ruling. And those who applaud it, and those who brought the case to the court in the first place, should be ashamed.
I say this as someone who believes that there is, perhaps, a reasonable argument to be made on some fronts about the need for single-(biological) sex spaces that do exclude those who have only transitioned into membership of that group after being born with a biological sex different from the one they identify with. While I am an advocate of trans rights and think we should treat trans women as women and trans men as men and allow people whatever gender expression they want, I can see a nuanced argument based on trauma that might necessitate such (temporary and limited) exclusions from time to time. An argument based on compassion, but also honesty - that this requirement is not fair, but might be needed. It might be needed in those specific cases where a women born biologically as a woman who has experienced great trauma at the hands of a man will not feel safe sharing the same space with someone she still perceives (wrongly) to be a man.
But such a position, if required, should be called out for what it is - a position of prejudice we are indulging only because we want to bring this person through their trauma and out the other side. It is not a correct view of the world, or one we endorse, but is an understandable one given the context and trauma experienced. To support a particular individual or individuals, their recovery might require such (temporary) exclusion of those who might prove obstacles to it.
This is, however, not limited to trans people. The same might be said of a victim in need of support who is triggered by people with brown hair because their abuser also had brown hair. We might opt out of compassion to ensure this particular person does not come into contact with any other brown-haired people as they seek refuge and recover, knowing that this is an inconvenience, and a trauma-based prejudice which we will hope, as part of the recovery, will eventually be overcome.
Importantly, unlike the gender-critical feminists arguing trans women should be excluded from single-sex spaces, to acknowledge this rare and infrequent possibility is not to advocate for total exclusion. It is not to accept a denial of service to trans women (or brown haired people). It merely endorses the occasional possibility that sufficient isolated space might sometimes be needed within an organisation to allow for a particular victim to feel genuinely safe whilst still providing equal and appropriate support for the trans women (or brown haired women) in need of the same services. Anything less than that is a position built on the unacceptable foundation of a denial of the existence of trans women as women (and trans men as men, but trans men being in “men only” spaces does not seem to stimulate the same debate). When you say that help for women is not available to trans women, you can only do so by not recognising them as a woman. A compassionate court ruling might therefore have noted that determining “woman” to be a definition based on biological sex alone would be exclusionary in this way (as well as legally-questionable, given that “gender reassignment” is supposedly another “protected characteristic” under the 2010 Act), but could have made some contextual allowances for legitimate exclusions which might - sometimes - be permissible so long as protections for those temporarily excluded remained in place. That they didn’t suggests that this approach is as much ideological as it is an interpretation of law.
Not that protecting women is the real motive here. Any more than protecting children was really the true motivation of the various moral panics against homosexuality which came before these trans witch hunts. The playbook is always sadly familiar, and I happened to be reading Paul Baker’s excellent book, Outrageous! about Section 28 and the history of LGBT education in Britain at the same time as this supreme court travesty unfolded. Not only did it make the current culture wars around trans rights seem like a re-run of those which came before them around homosexuality in the 1970s and 1980s, but it made me wonder why so few people speak about the impact on society still today from that generation of us not taught positively, or even about, the existence of LGBT people when we were at school? It is surely easier to erase the existence of trans people in public life when such erasure was already educated into you throughout your time at school? When culture warriors today speak of the supposed increase in LGBT people, people experimenting with different gender identities, and people asking questions about heterosexual norms, they do so by comparing the world today to their own time as children, back when it was actually illegal to positively represent such ideas and “promote homosexuality”. Of course there is more visibility today in a world where such repressive laws have been abolished.
If the court actually was seeking to protect all women - trans or biologically born - then a truly inclusive system of single-sex spaces meets those “practical difficulties” the court alluded to. The compassionate and morally defendable approach to those who feel they need single-sex spaces based only on biological sex would be to cater to all needs without excluding any group, but to do so would be expensive. A charity with limited money might not be able to accommodate such a request. To be legally forced into doing so could force them with closure, helping no one.
Perhaps the problem then is capitalism, rather than those of us who are transgender?
Money is the same reason that the bathroom debate is so loud in the moral panic around transgender people existing. Common sense should remind us that we use gender-neutral toilets all the time. At home, at work, on trains and airplanes, etc. And the facile argument that sexual predators might dress up as women to access the ladies room and assault women if we allow trans people into the public restrooms in which they feel most comfortable is almost so fundamentally flawed that I’d like to think it doesn’t even need debunking. However, its persistence as a myth used to justify exclusion forces me to remind you that sexual predators don’t need to pretend to be a woman to enter a women’s toilet and attack someone and that this imagined threat could still happen in a world in which bathroom use is determined by biological sex. Toxic masculinity and male entitlement have sadly been a threat to women (including trans women) for generations, and women have been attacked in single-sex bathrooms long before this was even being debated (and not by men pretending to be trans to gain access). Guess what - rapists and those looking to assault people don’t tend to care much about laws and social norms.
Whatever fairy-tales of public safety in single-sex bathrooms have been spun by the gender-critical chorus (and isn’t it strange how these same myths perpetuate across oceans, almost word-for-word, as if generated by think-tanks to promote a particular agenda rather than because they reflect real concerns?), the real issue around gender-neutral bathrooms (the clear, easy solution to bathroom inclusivity) is that they are expensive. A good gender-neutral bathroom should be a self-contained toilet and sink behind a locked door. And the cubicles should be built well, without accessible gaps at the floor or top. But such spaces are costly to build if your previous communal sinks, stalls and urinals are already plumbed in. Who has the money to accommodate genuine inclusivity? The “use whichever bathroom fits your own gender identity” approach or “gender neutral” but shared and exposed space is an economic solution rather than a moral one. It’s the best most places can afford. Ignoring the fact that the boogeyman vision of a dastardly rapist masquerading as a trans woman and using a toilet they are not supposed to be in to attack their next victim doesn’t actually happen on any level serious enough to justify damaging changes in the law, the argument around toilets should not be an argument about trans people’s right to exist, it should be an argument about proper public funding for better bathroom facilities we can all benefit from.
The “practical difficulties” of improving public toilets, or places of refuge from domestic violence, should not be a reason not to do what is morally right. But that, apparently, is life under capitalism. It would be too expensive to give trans people their dignity and the right to exist in public so, instead, the supreme court has chosen to, in real terms, exclude them and ignore their rights.
Which is, again, a problem of definition. Because defining something out of existence in the abstract of what is or isn’t legally required does not change ontological reality. Trans people still exist. They always have and they always will. And, knowing this, any legal judgement which pretends they do not, which denies them recognition as men or women, and leaves public spaces as an intentionally “hostile environment” towards them as a group, denying trans people basic human rights because of some spurious argument about how a word might be defined, may be a legal judgement, but it is a judgment which must be rejected morally.
Author: DaN McKee (he/him)
If you liked this post and have enjoyed what I do here at Philosophy Unleashed - and have been doing every year since 2019 - and want to buy me a coffee or cool philosophy book as a gift to say thank you, feel free to send a small donation/tip my way here.
My own book, ANARCHIST ATHEIST PUNK ROCK TEACHER, is out everywhere on paperback and eBook. You can order it direct from the publisher or from places like Amazon. Paperback or e-book.
My academic paper - ‘An error of punishment defences in the context of schooling’ is out in the Journal of Philosophy of Education here.
My other book - AUTHENTIC DEMOCRACY: An Ethical Justification of Anarchism - is available HERE , from the publisher, and from all good booksellers, either in paperback or as an e-Book. It’s celebrating its fifth birthday this month, so if you haven’t read it yet, check it out.
I also have a chapter in THIS BOOK on punk and anarchism.
Listen to me on The Independent Teacher podcast here. Read my Anarchist Studies journal paper on Anarchism and Character Education here. Listen to me on the Philosophy Gets Schooled podcast here. Listen to me talk anarchism and wrestling here or anarchism and education here. For everything else DaN McKee related: www.everythingdanmckee.com