In delivering the Supreme Court’s ruling last week, Lord Hodge went to great lengths to stress that it should not be portrayed as a victory for one side over the other, and that the rights of trans people remained protected under both the ‘gender reassignment’ and ‘perceived gender’ clauses of the Equality Act. He urged caution.
It’s a shame that nobody listened to him.
One of the first things I was taught in the first week of my archaeology and ancient history degree in 2006, was that it is impossible to accurately sex a human skeleton due to the chaotic and often contradictory combination of genetic, epigenetic, endocrine, physical and neurophysical factors that go into it, few of which survive very long – for instance, one thing that stayed with me was that up to 8% of the population have chromosomes inconsistent with their gender, and there are XY women who have given birth, and XX men who have fathered children. (This, incidentally, is why the IOC stopped doing chromosome testing of athletes in the 1990s, and why chromosome testing is not done in schools, because halfway through your Biology GCSE is really not the time to find that out.) The overlap between the ranges of typically male and female builds, proportions, skeletons, etc., is too broad to give any certainty either, particularly when one considers how many people were doing physical labour in historical times.
The scientific implications of attempting to define sex biologically aside, a very real practical consequence of doing so is coming down the rails towards us. Within hours of the ruling, the British Transport Police announced that trans passengers would now be strip-searched by officers of their sex as registered at birth, rather than of their destination sex. This was met with celebration from some, and much consternation from elsewhere. Our own MP Tom Gordon has now written to the BTP to seek urgent clarification on the legality and presumption of this change.
But there’s a more insidious implication, and it’s lurking behind the ruling as a whole.
I have a colleague; let’s call her Sally. Sally is a butch lesbian who, a few times a year, gets misgendered in the loos, even though she’s a cis woman and a mother. If Sally was pulled up by the BTP, and the officer happened to be one of the few people every year who assume she’s a man, or trans, how would Sally prove she’s not? If she actually was trans, and had a GRC, then that would have changed her sex “for all purposes” (quoting the legislation), including on her birth certificate – so no official documentation can be relied on to prove “biological” sex. Her chromosomes, for the reasons stated above, aren’t ironclad either. Even physical inspection might be insufficient, if again she actually was trans and had had surgery. (and come to think of it, how would a mastectomy look different to top surgery?) A test for gametes would only work if Sally was both cis and had the ovaries that many women are either born without or no longer have for various reasons – and would be impossible to do quickly, such as to determine who was going to search her, or, hypothecating the implications out a bit, which loo she might be allowed to use.
…and, whoops, we’re back in the territory of defining women by the very reproductive organs that generations of our sisters have been fighting to move beyond. If Sally was strip-searched by a male officer because they incorrectly believed her to be trans, and she felt violated by that, or actually was violated by an officer who was less pure than the driven snow, on the face of it she would have no recourse: the officers merely thought she was trans, so they were following policy. Case closed. No recourse – and open season for the Waynes Couzens of the world.
If you’re reading this and thinking this is all a bit hyperbolic, take a moment to have a think about how you would prove – actually prove, to their satisfaction – your “biological” sex to a skeptical, leering police officer, late at night, in a side room in a railway station, in a way that maintained your dignity. Do you regularly carry your birth certificate with you? Are you sure they’d believe it, if you did?
What swiftly becomes clear is that any attempt to actually enforce or police any definition of “biological” sex amounts to a Groper’s Charter: mandatory, probably demeaning, physical examinations either being required, or in this case, actively mandated, and almost all affecting women rather than men. Even a “papers, please” culture, where people (again, probably mostly women) need to provide documentation in order to be able to use appropriate facilities, can only be supported if such examinations are mandated as a way to police their enforcement.
There is a way out of this mess, of course. The British Supreme Court doesn’t work like the one in the US – ours can only interpret the will of Parliament, so the way out is for Parliament to express its will, clearly, in new legislation that maintains everyone’s dignity and meets our requirements under international law, which most of the proposals coming from the government and EHRC fail to – take a look at the data provisions of the UK GDPR, for instance.
Whether one supports the Supreme Court ruling or not, the practical implications of it, as things stand, should horrify us all – particularly those of us who believe that no-one should be enslaved by poverty, ignorance, or conformity.
* John Grout is a Lib Dem activist and lives in Reading.
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23 Comments
*applause *
The (probably imaginary) predatory men who the anti-trans campaigners claim might enter female designated single sex spaces by pretending to be trans women have a new obvious ploy : pretend to be trans men. As trans men are “biological women” they cannot be excluded. Interestingly, the regulat gotcha question “can a woman have a penis?” still has to be answered with a “yes” because trans men may very well have one.
To every difficult question there is an answer that is simple, obvious – and wrong.
I’m fascinated by the scientific claims you make in this article and would love to know more.
You say “it is impossible to accurately sex a human skeleton”. My understanding it that a complete adult skeleton can be sexed with very high accuracy eg https://pubmed.ncbi.nlm.nih.gov/15567621/
You also say “up to 8% of the population have chromosomes inconsistent with their gender”. (I’m assuming you mean sex rather than gender here?)
This is vastly higher than other estimates I’ve seen. Again, I’d love to read the research you’re basing this on.
I’m always open to reading new evidence so look forward to any citations you can provide.
“f you’re reading this and thinking this is all a bit hyperbolic…….. ”
Sorry, John, but to describe a ruling by five highly experienced High Court judges as a ‘Gropers Charter’ is more than a bit hyperbolic…….. something which Ed Davey wisely avoided.
I made this exact point to a police friend of mine the other day. He explained that, in practice, what would happen would be that the suspect would be asked if they had male or female bodies so they could be searched by an officer of the same sex. If a male-bodied suspect stated that they had a female body and, when searched by a female officer, it became clear that they actually had a male body, the suspect would find themselves charged with sexual assault by tricking the woman into giving them an intimate search.
If this is the approach adopted by British Transport Police, it may help Sally feel more confident that she would not be searched by a male officer. However, Sally may still feel vulnerable using single-sex spaces in case she is wrongly accused of having no right to be there.
Surely there is a straightforward way of dealing with the worrying issue of police searching people which is to say that everyone can choose the sex of the officer who searches them.
On a less important point I was intrigued by the comments about archeaologists – press reports routinely state the sex of bones which have been discovered and the Natural History Museum have a page on their website about determining the sex of a skeleton. https://www.nhm.ac.uk/discover/analysing-the-bones-what-can-a-skeleton-tell-you.html
Thank goodness someone else has explained the facts of life properly. The whole idea of “biological sex” is nonsense. You don’t need an advanced degree in biology (like mine) to know that sharp distinctions don’t exist in the real world, between plant and animal, living and dead, cat and dog, boy and girl, etc, etc. The most you can ever do is to list the main characteristics commonly seen on either side of a fuzzy dividing line.
This is a brilliant post and should have been what LD MPs were saying immediately – well done John. No-one has been made remotely safer by these events. I’m waiting with decreasing patience for an allegedly liberal MP (with the partial exception of Christine Jardine) to challenge head on some of the misleading bile coming from both main party benches, particularly about trans-supportive organisations.
I’m cis man and I’ve spent the last week alternating between being distractingly upset and volcanically angry. The democratic deal is that even when we didn’t vote for them, the government are ‘our government’. I no longer accept that. The Prime Minister has proven himself a coward with no actual beliefs of his own, and the intersex 1.7 % of the population have been unpersoned. I disavow this government and the institutions on which it is based, because it does not consider some of the people I love to be valid. It no longer has any right to speak for me on any matter. I’m not even sure I believe in the value of law anymore – it only upholds norms and privilege until authoritarian politicians decide that changing it is more expedient for them than not changing it.
Well, finally we have moved on to a clear argument for a clear agenda for the Lib Dems – as is their democratic right, according to their conscience – to change the law to go beyond both the GA and the EA to remove the category of ‘sex’ from most aspects of public life, discourse and bureaucracy. To which counter arguments can be put, hopefully in a reasoned way, both within the party’s policy process and during the democratic process.
…Rather than arguing the law doesn’t mean what the Supreme Court have now said it does, and claiming people who said the law said what the Supreme Court now say it says, were malevolent ‘bad faith actors’ motivated by ignorance, fantasy and bigotry. (Rather than sincere but arguably misguided people an apparent majority of Lib Dems felt they needed to reasonably disagree with).
Please do make sure – once due process is done – you ensure your candidates everywhere at every opportunity tell the public clearly this is a key agenda for the party instead of running by-elections based around opposing bypasses, etc.
Tom Gordon and Sarah Dyke too – missed them in first reading of Hansard, apols to both
I think it is extremely misguided, at best, for Liberal Democrats to say in reaction to this Judgment that they no longer believe in the rule of law, or they will refuse to comply with the law. Otherwise we will have no moral authority when people on the right or far left state that they will only comply with laws that they agree with.
I also think that some of the commentary has reminded me of the Daily Mail’s “Enemies of the People” headlines. Again I don’t think this is helpful.
The correct route is to get Parliament to change the law. If we can’t elect enough MPs to change the law then that is democracy. I am sure there are many laws the far left and the right want to change, if they can’t get enough MPs elected then again, that’s democracy.
The clue is in the party name. Liberal and Democrat
@J, you miss the point and in fact the entire purpose of the Supreme Court. It isn’t the SC’s job to make anyone feel or be safer. It’s their job to clarify points of law and interpret legislation written by Parliament. That’s it.
John got it right in his post. People confuse our SC, which has quite limited scope, to the US Supreme Court which can essentially legislate from the bench. The US SC can say “we think what parliament MEANT was this and so we’ll interpret it that way”. Our DC can say “we assume parliament meant this, which sounds right, but they wrote this, so that’s what we have”. There are two very different sets of powers at play and what this ruling has done is brought out all the pseudo-lawyers who suddenly assume they understand the legal system and the power of the courts but then completely misstate them.
As John again correctly points out, there’s an easy solution. If people don’t like the ruling, write to your MP and campaign to amend the Equality Act. Because that’s the job of parliament, not the courts. If the court did it, they’d have Robert Jenrick calling for their heads.
Respectfully I did not miss the point and I understand the distinction very clearly – I am questioning the purpose of law when it fails to protect people who need protecting. Don’t patronise me
True intersex – i.e. phenotype at birth, male or female, can’t be determined – is very rare, 0.018%. This is what most people understand by intersex.
And it’s of no importance: transgenderism isn’t corelated to intersex. Is there any serious thinker who claims it is? Surely, we can all understand that biological males or females can identify with the other gender. Transgenderism doesn’t need to be backed up with dodgy science.
As for the quip about a “gropers charter”, organisations have a provision for discretion and can and do use safeguards!! Have a colleague of the opposite sex to the searcher present; allow choice of sex of searcher by the searched.
Simon McGrath makes an eminently sensible suggestion about those enduring the humiliation of being strip-searched choosing the sex of the officer doing the search, and to me, there is a general need for more light and less heat on this topic. The judges made a similar point, and I think it’s misleading to say “it’s a shame nobody listened.” Plenty of us did.
It’s also very unfortunate that when N Williams asked for evidence that a startling 8% of us have abnormal sex chromosomes it hasn’t been forthcoming.
@Slamdac: To be fair, the OP does suggest fresh legislation to correct the SC judgement. And hardly anyone is talking about the judges being “enemies of the people” or anything similar, and this is what sets us apart from Daily Mail op-ed writers, Tory politicians and the like. Indeed it appears that much criticism is not aimed at the ruling per se, but how many politicians and public officials have decided to interpret it — implying that they are not following the law. Note, for instance, Kemi Badenoch’s request that Starmer apologise for past comments on the issue, implying that our SC is like SCOTUS and it has made a constitutional judgement that it is verboten to criticise.
@Matt (Bristol): Elections, especially by-elections, are rarely about what the political class want them to be. See, for instance, Zac Goldsmith’s failure in making the Richmond Park by-election about the Heathrow 3rd runway. The only time the campaign does become what the political class want it to be is when the political class force it to be, by forming a cartel that excludes anything else (see the H&H, B&S and SW fake by-elections as examples).
@Simon Mcgrath: You suggest allowing everyone to choose the sex of the police officer who searches them.
So, a hot-blooded 20–something-year-old heterosexual male is suspected of committing a (possibly violent) crime and needs to be strip-searched. He is asked whether he’d prefer a man or a woman to strip-search him. What could possibly go wrong….?
@Simon R
You make a good point. Police Officers also have rights and it is not appropriate to think that, for example, a female Police Officer could be required to carry out a strip-search of a male-bodied suspect against her wishes, even if the male-bodied suspect requested it.
Regarding searches: there are obvious pragmatic sloutions. In the scenario of a 20 year old straight male opting to be searched by a female, a male police officer would also be present, to “de-sexualise” the situation. This honestly isn’t rocket science.
I’d point out that female examination of males is
common in medical contexts; this very rarely poses issues.
The article criticises biological sex as too messy or uncertain to rely on, but it doesn’t offer a workable replacement. If we abandon biology, are we meant to rely purely on subjective identity? That seems far more abstract, changeable, and open to exploitation. Surely any system, biological or identity-based, has risks, but dismissing biology without explaining why identity would be a better or safer foundation feels like a major omission.
I work in a prison, an environment where staff and visitors are searched on a daily basis. There is always more than one Officer in the room and before the search the person is asked “are you content to be searched by a (gender of Officer involved) Officer?”
The general rule is that male Officers search adukt males only, female Officers can search anyone.
A structured and professional approach should be taken to any invasion of privacy with safeguards in place. My colleagues in the prison service work in a professional and sensitive way. Labelling this judgement a “gropers charter” is rather demeaning to anyone working in these kind of challenging environments.
Saw this thread had a number of conflicting claims about prevalence of intersex conditions, and I thought I’d add some relevant data.
Chromosomes: studies of UK Biobank (500,000 people aged 40-70) showed around 700 neither XX nor XY and about 200 others whose recorded sex didn’t line up with their chromosomes (XX men or XY women). The latter seem to be a mix of trans and intersex people though only a minority had actually been diagnosed either with gender dysphoria or an intersex condition. About 50 had unknown cause, which suggests intersex conditions that nobody had noticed. Combined, these chromosome variants make up 0.18% of the population, with about 0.03% of that having changed sex markers (so transsexual). Note that’s a lot less than the 0.5% or so transgender people found in the recent censuses of England and Wales and Scotland: however these were older people, and the samples were taken between 2006 and 2010.
Anyway, the birth conditions (chromosomal and non-chromosomal) are generally agreed to be intersex conditions, whereas mosaic loss of X or Y generally isn’t. Combined we have about 0.2% of the population intersex under the lower estimates for ambiguous genitalia, and about 0.3% using the Istanbul numbers for ambiguous genitalia.
After that’s it’s controversial. Are hypospadias (conditions where the pee-hole isn’t in the conventional place) an intersex condition? Some people count them, and that adds another 0.2% to 0.5% of births. How about cryptorchidism, wherein one or more testicles remains undescended after a year? Count that, and it’s another 0.5% of births. There is also a condition called Late Onset Congenital Adrenal Hyperplasia which sometimes gets counted as intersex (leading to high testosterone levels in those assigned female at birth). It affects between 0.1% and 2% of populations depending on ethnic group.
Finally, what about PCOS, another condition which can lead to high testosterone in assigned female at birth. That appears to affect between 6-13% to varying degrees, and often is not diagnosed.
The boundaries of what is and what is not an intersex condition are fuzzy and if anyone gives you a precise number (especially a small one) they are probably playing politics rather than showing familiarity with the actual science.