Trans rights and the supreme court

[lnr]

Unions now have a meeting on Thursday with the Pro-VC, senior HR and EDI people. I'm going to be attending on behalf of UCU, along with our Equalities Officer Amanda. Our main requests are better communication of actual practical support for staff and students, not changing policies without consultation based on the rushed EHRC interim guidance, and asking for them to contribute to the consultation. There's a lot more subtle stuff involved, but that's kind of the absolute minimum.

It turns out I'm now having trouble getting back to sleep if I wake in the night, because I'm too busy thinking about how the hell we communicate this properly, and what our chances of success are in ensuring trans, intersex and non-binary people continue to be treated with dignity and respect and remain safe at work. Because that feels like a really basic thing to be asking for when you put it like that.

My HoD finally got back to me yesterday, to reiterate support, but it's meaningless if it's only said to *me*, and not to all staff and students.

Comments

[vyvyanx]

Thank you again for all your support on this - I am so grateful that there are cis people out there who care enough about our lives even to say something, let alone doing all the work you have done. I'm sorry it's been giving you sleepless nights (I've had plenty myself over this issue during the last month or so - and in the past when trans stuff was in the news for other awful reasons e.g. the Cass report).

On Sunday, my MP wrote me a very encouraging letter in response to my long missive, and asked me to meet him to discuss it further at one of his surgeries. So I will!

[lnr]

Oh I'm so glad! I thought my MP's initial report was quite good (if woolly): until I saw two almost identical versions of the same message from other LibDem MPs!

Cass is still a nightmare too, isn't it? Argh. All the stuff about testing children for autism before being willing to discuss anything about being trans is appalling too (what if they've already *got* an autism diagnosis eh?)

[barakta]

Have you seen that there's a Peer Reviewed paper criticising Cass including that Cass Report was NOT peer reviewed?

[lnr]

I did! <3

[bens_dad]

I haven't read the Cass report in detail, but have heard her say that the autism/depression assessment and treatment is intended to be in parallel with and not before or instead of the trans assessment and treatment. Given the current waiting list to see a trans specialist, and given the frequency of autism and depression in trans people it does seem reasonable to investigate and treat those in parallel.

Now that could all be spin by Cass or her detractors; I am not close enough to know, and as with much the NHS there could be a huge difference between the ideal and the reality.
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Much has been said about the alleged lack of research into when blockers are helpful, but I wonder how much effort is being put into finding effective treatments for depression in the autistic.

[ptc24]

Autism - this seems reminiscent of the usual "do the other thing first" games, where everyone seems to want trans people to do all the things that other people are gatekeeping before they allow trans people through the gate they are keeping, generally in ways that would create a deadlock.

[rmc28]

Yes, getting senior people to say things to all staff not just the ones who are making a fuss, is the issue. I believe my department has no intention to change anything based on EHRC interim guidance, but SLT haven't said so plainly. We have multiple openly trans staff, which makes the lack of comms worse.

Thank you for your work on this, and best wishes for the meeting on Thursday.

(My own very small daily action is to have added a trans pride wristband to my daily outfit and added progress pride and trans pride badges to my bag straps. I've also got a progress pride badge on my emergency "academic smart" jacket for meetings and presentations. But I need to make time to write to my MP.)

[lnr]

I've been comparing notes with a colleague in your department this afternoon!

I've added a trans flag pin back onto my existing progress pride lanyard. Not sure yet whether to go with this Tshirt for the Teams meeting:

https://www.etsy.com/uk/listing/1250941393/pride-progress-tshirt-rainbow-heart

Or go smarter and just wear pins on my jacket (it already has a progress pride one too!)

[rmc28]

I would be inclined to go smarter with the jacket and pins.

[hilarita]

It's a pity Rachel Padman's retired.

[lnr]

<3

[barakta]

Our work is doing the "don't make us talk and we don't change anything" line and apparently meeting with staff LGBTQ+ group but keeping their head down.

We have a good ally cis gay man in HR who is good at "playing the game" while having some integrity (how long he'll last I don't know) and he is reminding work how unenforceable policies should not be put in place and hoping work will feed back to EHRC that the policy is unworkable as well as inequitable and the ruling was "May" not "must" and EHRC must not demand that people should be transphobic.

So much for this reputed clarity eh?

[lnr]

Thanks! Must versus May is very much something we'll be trying to bring up, and you're not the first to suggest that the fact any enforcement is completely unworkable means it would be a ridiculous policy to implement.

But yes, clear as mud.

[barakta]

My pet questions:

What is the legitimate aim?
How is that proportionate as in the least-restrictive way to achieve it?
How will you police it?
How can anyone prove they are not trans?

I will also be making the point that as a queer who's been around some form of queer community since the mid 90s, I deeply resent cishets speaking for all of us and will absolutely nix the fuck out of externally imposed definitions of our sexuality kthxfuckoff etc.

Make it as inconvenient and time consuming as possible for them to have any shitty policies. Also we should start targeting the open days of any uni who tries to bring in shitty policies "Don't come here, they're transphobic and you are not safe here!" which they will hate hate hate. Especially if we find receipts of their flag waving when it suited them.

[pseudomonas]

How will you police it?

and presumably a subset of that is "how will you make sure that it doesn't become a magnet for transphobes taking it upon themselves to interfere".

[barakta]

100% cos the TERFs are already trying to get trans folk kicked out of space by "running to mummy telling tales". I've seen cases where the "women's group" in question has replied "We are inclusive, including trams women and not excluding them, you can stay too if you behave" which is the best let TERFs self-exclude and might teach them how much of a minority they still are.

I am reminding lots of people, none of us can prove we're cis, and most places have no capacity to "chromosome test" where I guarantee a % of people will discover they are intersex. My view is if the alleged-trans person has to "prove their sex" then so does every single person who demands that data from the trans person. If the accusers/complicit won't do it, then trans folk and cis allies accused should not do it. Fuck up the system. Make it hard. Make it more hassle to challenge than not. Argue back. Derail. Delay. Deflect. Use all the tactics of power right back at them. Be More Annoying Than TERFS around transphobia and otherwise Be A Normal Human (which TERFs are incapable of doing)!

[pseudomonas]

yeah, if it becomes a community-policing-aka-vigilantism situation, asking the known terf "enforcers" on a regular basis to prove they're cis (bearing in mind that there is no piece of official paperwork that can do this) would be an appropriate response.

[lnr]

Amanda and I spent a couple of hours today looking at the proposed code of conduct changes the EHRC are consulting on. It was hard going.

13.3.19 If a service provider (or a person providing a service in the exercise of public functions) admits trans people to a service intended for the opposite biological sex, then it can no longer rely on the exceptions set out at paragraphs 13.2.3 to 13.2.22. This means that if a service is provided only to women and trans women or only to men and trans men, it is not a separate-sex or single-sex service under the Equality Act 2010. A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it. A service which is provided to women and trans women could also be unlawful sex discrimination or lead to unlawful harassment against women who use the service. Similar considerations would apply to a service provided for men and trans men.

13.3.20 Similarly, if a service provider (including a person providing a service in the exercise of public functions) decides only to provide a service on a mixed-sex basis, without any separate or single-sex option, this could be direct or indirect sex discrimination against women who use the service or lead to unlawful harassment against them. This is most likely in contexts like those referred to in paragraph 13.3.4.

I cannot see how they can in all conscience write this stuff down and not see how *wrong* it is. It is *obviously* not in line with the intentions of the Equality Act 2010 at the time it was written. I'm fairly certainly a lot of what is in this Code of Practice is also directly against things which were said in the Supreme Court judgement itself, but I've not yet got the tuits to look up the relevant paragraphs. This is not yet guidance, it is proposed guidance for consultation, but I am sickened by it.

[vyvyanx]

I know; I've got half way through answering the blasted consultation today and had to save chapter 13 for when I've accumulated more energy. It seems to say to service providers: (1) you mustn't let trans people use the right toilet; (2) you mustn't let passing trans people use the wrong toilet either; (3) you mustn't leave trans people with no toilet to use at all; (4) you mustn't make all your toilets mixed. What they're supposed to do if they don't have space or money to create new unisex cubicles, or while they're in the process of building such cubicles, is entirely unclear.

Also, the only question the consultation ever asks is "Is this section of the revised Code clear?" Not "Is it fair?" or "Is it reasonable?" or "Is it practical?" or "Does it breach people's basic human rights?" - just "is it clear?". Happily, in addition to being none of fair, reasonable, practical or safeguarding human rights, it is also completely lacking in clarity, which gives me plenty to criticise.

[lnr]

I was going to leave actually trying to respond to it until later, but it seemed wise to at least have a passing knowledge of it before tomorrow. I'm not sure it helps, other than to be able to say to management quite clearly that making *any* sort of policy change at this point, based on this unfinished guidance, would be incredibly foolish.

[vyvyanx]

So, how did the meeting go?

I eventually finished my response to the consultation yesterday afternoon. I found out, only by exceeding it, that they imposed a 1000-word limit on each response - I had to edit down my response to the particularly egregious section 13.3, part of which you quote above, because there was just so much wrong with it.

The crux of it is that the EHRC don't explicitly say to service providers that they must not allow trans people in their single-sex services, they just try to frighten them into excluding us by hinting at some absurd kind of potential legal action against them if they don't. When they say "A service like this is very likely to amount to unlawful sex discrimination against the people of the opposite sex who are not allowed to use it" they are suggesting that a cis woman, for instance, might bring a case against a provider of public toilets for not allowing her to use the men's toilet while allowing a trans man to use it. Quite apart from the implausibility of anyone bothering to bring such a case, the service provider almost certainly would not have prevented this hypothetical cis woman from entering the men's toilet anyway. Women (cis or trans) occasionally enter men's toilets if their own are out of order, or there's a long queue and they're desperate, or they're more convenient and the woman in question doesn't care either way etc. And vice versa; prior to transition, I sometimes encountered (apparently cis) men in women's toilets in nightclubs or cons or WGW or similar relaxed environments, chatting to their female friends or using the mirrors to touch up their makeup. The world doesn't end; nobody tries to stop them going in.

Also, this imaginary legal action would have been possible at any point prior to the Supreme Court's ruling. In 2015, for instance, the hypothetical cis woman could have complained that she wasn't allowed into the men's toilet while trans men who didn't hold GRCs (and therefore were legally female even then) were allowed. In 1995, she could have complained under older sex discrimination laws that (legally unrecognised) trans men were being allowed into the men's toilet while she wasn't. The same goes for the claim in 13.3.20 that it would plausibly be illegal sex discrimination against women not to offer trans-exclusive single-sex toilets at all: if a women's toilet *ever* admitted individuals with an M on their birth certificates, for whatever reason, a woman could have made a legal complaint at any time prior to the ruling that it was no longer a women-only space and therefore she was being discriminated against by being forced into a mixed-sex public toilet.

I have never heard of any such legal action ever being brought against a provider of public toilets in the UK, nor have service providers ever previously appeared to worry about the possibility. The only reason I can see that the EHRC want to issue such guidance is because they actually want service providers to exclude trans people, but realise that the Supreme Court's ruling doesn't require that.

[lnr]

Unfortunately it was cancelled at 2 hours notice: the pro-VC has done his back in! It's due to be rescheduled in the next couple of weeks.

We'd encourage them to communicate in the meantime, but I'm not sure we trust them to say anything without talking to us first, so we've put out our own brief statement:

https://bsky.app/profile/cambridgeucu.bsky.social/post/3lpual6bbbc27

[vyvyanx]

Your response looks very kind and helpful. However, if I were a current trans CU student or staff member, I might remain unsure about what the union's stance would be in the event that Senior Management decide that trans students and staff should no longer use their bathrooms of choice. ("In the meantime...we will support everyone in using their bathroom of choice" could be interpreted as meaning that the union's support might end at some future point.)

I'm really not trying to be difficult - I know you are completely supportive - I'm just thinking about how those posts might read to someone who doesn't know you!

[lnr]

Argh, yes. You're right that that's not what we meant, but I can see how it could be interpreted that way. I will try and reword for the branch newsletter!

[lnr]

(I'll read and comment on the rest later in more detail, but you have some very good points!)

[doseybat]

Thank you for doing this work!