A recently published analysis on “lawfare”, where changes in organizational policy are attempted through legal action, has looked at cases related to the Equality Act since 2018. The key finding is that there has been a concerted attempt to sue trans-inclusive organisations into a position where they become trans exclusive – a pattern not seen in any other equalities strand, and one which indicates a substantially well-funded and organized campaign.
So organisations like the Girl Guides, the Quakers and, yes, the Liberal Democrats are threatened with court action or, in some cases, taken to court to be walloped over the head with “the Supreme Court ruling”. The expectation is clearly that a lot of organisations will fold before any court hearing because of the costs involved.
The lesson clearly being taught within the Liberal Democrats is that, if you want to change policy, don’t bother with the democratic processes and conference. Just engage a lawyer.
Having sat through a couple of planning inquiries and seen other legal advice, there are three things I’d like to point out. Firstly lawyers are like politicians – they are paid to present their case as compellingly as they can. Secondly the key word in “legal advice” is not “legal” but “advice”. Other opinions are often available, which is why disputes end up in court. Finally, any legal advice is highly dependent on the question that is asked. If the question is “how can we be trans inclusive” you are likely to get different answers to “how can we exclude trans people”.
The result this time is the chaos that our internal elections have been thrown into. The justification is keeping within the law. To which I would respond with another scenario.
It is not inconceivable (although I still think pretty unlikely) that Nigel Farage will become Prime Minister in the summer of 2029. At which point he may start acting like Orban, Erdogan or Putin. One of their tactics is to make it legally difficult, if not impossible, for oppositions to exist in any effective manner. If Farage does the same, will our party simply roll over and say “it’s the law” before dissolving into some kind of hand-wringing sludge? I would desperately hope not.
If the Liberal Democrats mean anything, it is a commitment to human rights as a core to liberal values – a belief in equality and in self determination. Human rights emerged out of the understanding that fascist and authoritarian regimes want to define who people are. That is what is so worrying about the Supreme Court ruling – it says to groups of people “you are not who say you are, but instead you must be who we say you are”. At its heart it is fundamentally illiberal.
And to those who respond “balance of rights”, as well as the answer “rights are not pie” (in that recognising and advancing the rights of some people doesn’t mean there are less rights for everyone else) the Council of Europe’s Commissioner for Human Rights has said very clearly, when criticizing the UK government for the direction it is taking, that such clashes when it comes to trans inclusion are very rare and can almost always be worked around amicably.
Personally I have been deeply upset by the party leadership’s stance in these elections – I say leadership because it’s clear to me that the vast majority of the membership wishes to remain trans inclusive. When pieces are written pleading for people to stay and fight, it’s a recognition that the party has somewhat lost the plot. In some ways the argument is already conceded. And I have come close to resigning over this matter. If you want to tell me who I am then, quite frankly, you can get stuffed. You have no right whatsoever to do that. Currently staying is perilously close to being more of a headache than leaving, and I know more than a few who have decided that the Lib Dems are not worth fighting for or voting for any more as a direct result of this current chaos.
So we need to grow a spine, recognise that we have to fight for the concept of human rights, and understand that legality is not necessarily the same as morality. This is a test case – whether we show we understand and can stand up for the values we say we believe in.
* Helen is a Wiltshire Councillor, and fought Chippenham in both 2017 and 2019. She is also currently the chair of the trans advocacy organisation TransActual.
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11 Comments
I have only one quibble with Helen’s piece. The SC chair made clear that the only point being decided was what man and women meant solely in relation to the Equality Act. Certainly TERFS have tried to claim that it means lots of other things, but it doesn’t.
The solution to the dilemma thrown up by the ruling is to amend the Equality Act so that it means what we thought it meant. My concern is that instead of leading that fight, our leadership is doing nothing.
If that continues to be the case then a motion should be prepared for Spring to commit the party to do just that.
“The SC chair made clear that the only point being decided was what man and women meant solely in relation to the Equality Act”
And the judgement also said (if I am understanding this correctly) that a “man” is some one who is biologically “male”, and “woman” is someone who is biologically “female”.
Beyond saying that a person’s status as “biologically male” or “biologically female” is determined at birth, I don’t think the SC said anything about what being “male or female actually is. They left that to biologists.
I know of an example where a trans male (with a GRC) gave birth to a child. No biologist could call such a person anything other than [biologically] female(*). Given the law requires everyone with a (male) GRC to be considered as being male for all legal purposes, a doctor or midwife might legally be justified in refusing to assist at such a birth. That result is not on.
I think the SC solved this legal problem by reminding everyone that trans people must not be discriminated against. Clearly refusing to assist a trans male giving birth on ground that that person is legally not female is discrimination against trans people.
(*) absent a complete change in biologists’ understanding/description of what being female is – a big ask probably requiring upheavals in evolutionary theory comparable to the move from Newtonian physics to Einsteinian physics. Since I know of no experiment in this field comparable to the Michelson-Morley experiment, my money is on this not happening anytime soon.
Helen,
I don’t understand how you can say:
1 one person’s rights are not diminished by the assertion of another person’s rights rights; and also
2 say there are in fact clashes of rights (albeit rare and almost always resolvable).
Are these two things not contradictory?
f then say And to those who respond “balance of rights”, as well as the answer “rights are not pie” (in that recognising and advancing the rights of some people doesn’t mean there are less rights for everyone else) the Council of Europe’s Commissioner for Human Rights has said very clearly, when criticizing the UK government for the direction it is taking, that such clashes when it comes to trans inclusion are very rare and can almost always be worked around amicably.
@Tristan Ward
The issue of trans males giving birth is interesting because the high court ruled in 2019 than the trans male who gave birth should still be described as being the ‘mother’ on the birth certificate since mother refers to the biological act of carrying a child and giving birth and was not to do with the gender identity of the person who carried the child and gave birth.
The evidence of the past 10 years is that someone’s attitudes and behaviours are more likely to be typical of their sex than of their declared gender. So the question is simply: To what extent are we happy to tolerate male attitudes and behaviours within female environments? What level of risk are we happy for women to take?
At least that is honest
I agree with Mick, the need is to focus on how we amend the law – in general and the Equality Act specifically, to be more inclusive.
@Tristan Ward “I know of an example where a trans male (with a GRC) gave birth to a child.”
This is the problem with only focusing on the “trans women” dimension, we saw similar during the gay rights campaigns which similarly focused on gay men rather than gay women. Because as you note, once man/male can mean either born male or male through “acquired gender” and likewise for woman/female, these words no longer have the meaning people think they have and can to a greater or lesser extent be used interchangeably.
[Digression] @Helen – The “lawfare” analysis reference you give is interesting because both in the article and in the comments it touches on the use of AI tools as part of the research methodology – giving some clarity as to how they might of of assistance.
Ignoring for a second what cause these people are espousing, is lawfare as a way of engaging in politics compatible with our values and the code of conduct? How can the party protect itself from those who misuse the complaints/appeals/legal process to pursue their goals against the wishes of conference?
Those who misuse party procedures in this way are surely bringing the party into disrepute and should therefore be asked to leave?
> How can the party protect itself ?
We would recognise that the political climate has changed. That lawfare,
and astroturfing, and MEPs taking bribes, and hobbling the ICO are elements of Political War. Also that with more MPs then ever, we are a target as never before.
We protect ourselves by mounting a defence against Political War. The country is rather out of practice as it is over 30 years since the Cold War.
Not a very welcome message, sorry.
” is lawfare as a way of engaging in politics compatible with our values and the code of conduct?”
Yes – unless of course you think that (for example) the party shouldn’t support a claim to the ECHR to challenge the Supreme Court decision, or that Charlie Maynard should not involve himself in the legal proceedings as to whether Thames Water should be put into administration.
https://order-order.com/2025/03/04/lib-dem-mp-referred-to-parliamentary-watchdog-over-murky-campaign-to-put-thames-water-into-administration/
@Jenny Smith
“mother refers to the biological act of carrying a child and giving birth and was not to do with the gender identity of the person who carried the child and gave birth.”
Exactly. Giving birth is about a female as thing as it is possible to do. Whatever the law says, it is hardly surprising that most people call such a person a woman/female etc.