On 16 April a chorus of newspapers and politicians proclaimed as one that a great victory had been won for clarity and common sense. A ruling by the UK’s Supreme Court, brought about by legal action from the Trans Exclusionary Radical Feminist (TERF) group For Women Scotland over the initially narrow issue of gender representation on public service boards, determined that hence forth the definitions of a women and sex in the 2010 Equality Act would be based upon “biological sex”. 

Throwing the transgender community into flux over what protections and access would be stripped. Eight months on, after a parade of lawsuits, tribunals, public consultations, press leaks, political wrangling, committee hearings, a new EHRC head, protests, and two sets of guidelines, we are no closer to knowing, and that so-called “clarity” is somehow even more insulting.

Upon the Supreme Court making its ruling, responsibility for translating this into law and day-to-day life fell to the Equality and Human Rights Commission (the EHRC). On the 25 April, allegedly after less than a day, the commission published its interim guidance on the ruling. Within, the commission decided transgender people would be excluded from gendered spaces altogether: bathrooms, changing rooms, sports teams, support groups, clubs, working groups, prisons,hospital wards, crisis centres, and anywhere else that organises people into male or female. 

This brutal guidance creates not just an exclusion from society, but invites harm within it. Strip searches are now being carried out by male police officers on trans women, and female officers on trans men, leaving both vulnerable to harassment and abuse from an institution already deservedly feared. Without recognition as women, trans women are open to sexism and discrimination without any legal or workplace protections. Every trans person is left with no certainty on where they can go or work safely. 

For the ban not only excludes them from living as their gender, but also bans them from spaces matching this biological sex on the basis of it not matching their presentation. While ungendered “neutral” or “third” spaces or toilets or facilities (practically impossible in many cases, as pointed out by hundreds of business and leisure groups) are not often available, or would risk outing them. In the uncertainty trans people are left to decide between the risk of harassment or the risk of a lawsuit.

Some businesses and service providers have enacted bans based upon the interim guidance, some await their fate once it’s signed into law, some push back and dig in to maintain safe, inclusive spaces. None have clarity of what legal situation they are in. Access and policy are being created piecemeal through tribunals and lawsuits, a messy, lengthy process with no consistency.

How though would these places carry out a ban in practice? To preserve the “safety and dignity” of women and girls the first EHRC guidelines recommended that they must produce their birth certificate each time they needed the toilet. A measure as unenforceable as it is draconian. 

A birth certificate, or any other ID with a person’s sex or gender, gives no indication of if they are trans or cis. By design an updated trans person’s ID is identical to that of a cis person. Upon accepting this impossibility of enforcement, this idea was walked back by the EHRC in their subsequent full guidance. Where instead, access would be determined by appearance.

Who would make these inspections? What would qualify someone as looking cis? How could someone trans or otherwise challenge an intervention? The questions raised are as numerous as the fears. In lieu of a meaningfully legal way to exclude trans people, stereotypes of appearance provide a crude divider. Creating an atmosphere of fear where anyone not conforming to an expected male or female image risks targeting – a homogenisation that affects cis and trans people alike. 

Already this dangerous approach to policing gender has done harm. Reporting by TransActual has found cis and trans folk being harassed, yelled at, and abused in bathrooms and in public. Devastating accounts reveal trans women scared of losing jobs and torn away from friends, cis lesbians being sworn at in toilets, and trans men confronted and accused of being paedophiles while using bathrooms. Meanwhile, DSD and intersex women face similar ostracization and exclusion, with bans across professional and amateur sports racking up headlines through the summer. 

This increasingly narrow and exclusionary way of setting out women’s spaces and identity defies intersectionality and reduces feminism to protecting (some) women from men only by keeping them apart. This bullying of anyone not fitting the mould of a traditional man or woman should stand in opposition to feminist ideals, and yet it is in that name that these policies and fears are justified. It is with this TERF’s perversion of feminism that the EHRC conducts its onslaught.

Its former head, Baroness Faulkner, was appointed by Liz Truss during a period of growing hostility to trans rights by the Tory government. During Kemi Badenoch’s tenure as the Women and Equalities Minister, she wrote to the EHRC to enquire whether provision of single-sex services would be clearer if sex were restricted to birth sex. The EHRC replied with an emphatic yes, pushing lawmakers to implement a legally binding bathroom ban. A year prior they called for the Scottish government’s self-ID gender identity policy to be revoked.

This “neutral” equality body stuffed full of political appointments presumably then could not wait when handed the chance to implement a ban in full following the Supreme Court ruling. To the extent it was accused in court by the Good Law Project of potentially approving the interim guidance within 24 hours. Despite this, the EHRC and Faulkner have over the summer attempted to whitewash their image as merely neutral messengers of the law to businesses. All while telling trans people to accept a reduction to their rights, urging the government to implement their guidance as law while it was still being challenged in the high court, and calling for appeals to tribunal rulings they opposed.

With the litigiousness of TERF activist group Sex Matters and the endless pot of money for lawsuits from a certain Scottish author, these brute force attempts to rewrite the law are relentless. With their goal, amongst others, to set and impose transphobia through law. Following a worryingly similar approach, the EHRC has become an organisation that cares not for clarity or practical measures, but one hellbent on enforcing their “clear” worldview on the country.

In the meantime, Labour have attempted to wash their hands of the situation, saying the law is the law and they will follow it. An apparent defiance of the responsibility of lawmakers to make law. It has in the meantime upheld bans on puberty blockers, failed to ban conversion therapy, and increasingly leant into exclusionary rhetoric. The pleas of neutrality ring increasingly hollow.

Prospects of an improvement from the EHRC under the new government quickly vanished with the appointment of Mary-Anne Stephenson as its new head, despite objections over her impartiality and inexperience by MPs on the Women’s and Equalities Committee and numerous trans rights charities. An almost perfect continuity candidate, who has donated money to TERF lawsuits, now also pleads impartiality. 

While the continued breakdown of the EHRC may seem likely, how we respond is not futile. As noted in previous ACR articles, a true feminism is trans inclusive. Striving for full bodily autonomy, the freedom to define oneself, not have society or law define or limit you, is an ultimate goal of both women’s and transgender liberation. 

Whether cis or trans, women should be the sum of their lived achievements, failures, and experiences, not the sum of their physical parts. A cis woman should not have her life be in service of a uterus, nor a trans woman in liability of her penis. 

The struggle for liberation is shared beyond this; the machinery of oppression is never made for one group. The same rhetoric of “won’t someone think of the children” to deny healthcare and recognition to trans youth was once used to bring in Section 28, preventing schools and local authorities from discussing homosexuality and silencing a generation of LGBT people. The same rhetoric of protecting women is used today to justify repealing the rights and protections of immigrants.

In the expansion and solidarity of the struggle it cannot be forgotten the harm happening to the transgender community in this moment. People are hurting, people are leaving, and last month’s trans day of remembrance laid bare not just the lives ruined, but the lives lost.

A push must be made towards long term liberation, while helping those in need now. When put to the Commons, the guidance can be voted down by MPs, many of whom have expressed opposition to the bathroom ban after lobbying and letter writing campaigns. The EHRC is expanding its leadership group, opening up a window where pro-equality voices can be heard. Service providers can be called on to maintain inclusive policies, which will hold up in court. 

As the EHRC continues to push against liberation, we must all push back.

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