Reframe your disappointment

[MissScarletInTheBallroom]

Inspired by a couple of other threads about the reaction to the Supreme Court judgment from trans allies, I thought it might be interesting to have a thread to discuss what to say to people if it comes up in conversation.

Comments I've seen so far seem to suggest:

• the judgment was legally wrong and this isn't the end
• the judgment might have been legally correct but it was morally wrong and the law needs to be changed
• trans rights are now being rolled back
• this is a victory for the far right
• this was orchestrated and bank rolled by the far right
• this decision will now embolden transphobes to harass and victimise trans people

Perhaps we could brainstorm the best ways to respond to these (and any other) talking points, should they arise?

Well @Micaela64 , if you feel so strongly about this, I suggest to take a leaf from the incredible women on this board and get organizing.

The ruling yesterday clarified that in the EA, the class of women does not include anyone male.

If you believe that TWAW, and that this should be recognized in law, then you should do what should have happened all along, start campaigning for a change in the law to reflect this. Look for legal cases that show the flaws in the judgement and crowd fund for them. Write letters to MPs. Put the fucking graft in.

Scolding women on mumsnet won't change a thing, not the law, not our minds and certainly not reality. But it is easy. And probably makes you feel righteous and that you are actually doing something. I suppose everyone needs a hobby

So, to go back to reframing:

I often think of the conversations I had with my lawyer friend who is a fanatical TRA, before we agreed not to fight about it. And this first emerged years ago when I was still basically in a "be kind" position, and self-ID was just emerging as the shiny new demand.

My argument was - maybe I reasoned myself into terfdom? - that if you try to apply full self-ID to equality law then you are opening a whole can of worms. Because protected characteristics depend on you being able to define the PC.

It runs right through equality legislation. Many PCs are just objective. You are the age you are. You are either pregnant or not. You can't be treated inequally because of this objective thing.

Sometimes it's contextual, as with chronic health conditions that might be relevant in cases of disability discrimination.

Sometimes it's based on perception. I'm not Jewish, but sometimes people think I am, and I'd still be protected from discrimination on the basis that someone thought I have a PC that I don't objectively have. The same goes for straight people mistaken for gay, Sikhs mistaken for Muslims, etc. Theoretically a transwoman would have the PC of female sex if discriminated against because people thought they were female - though I'm sceptical how often that happens.

But the thing is that there has to be an objective core to the PC. This also goes for protecting trans people from discrimination - you need to have a more or less stable idea of who is trans and who is not. I still think the GRA was bad law, but it was still workable as long as people understood there was a specific group to which it applied, and there was some gatekeeping.

Pure self-ID, based on ideas from queer theory, can't translate into anti-discrimination law because it means we have to accept that people are exactly what they say they are at any particular moment. Especially because nobody can really define what gender identity is. So applying the logic of self-ID means that not only is there no stable definition of woman, there's no stable definition of trans.

So for me the legal question comes down to - if you want to protect groups including trans people against unjust discrimination, you need stable definitions. It's not possible to have equality law based on the premise of "all these protected characteristics are really nebulous and nobody knows what they mean".

On the point about 'no trans people were heard' in this case. Unless the claimant is an individual, for a case involving a general point of public importance the Supreme Court is very reluctant to accept legal submissions from individuals. For reasons of efficiency, it makes more sense to hear from NGOs and representative organisations who can advocate on behalf of groups rather than individuals in that group. This is why in climate and environment cases you don't hear from individuals who have been affected but by NGOs like GreenPeace etc who can make submissions on behalf of affected communities.

What should have happened is one of the big trans charities or NGOS like Stonewall should have applied to intervene (just as LGB Alliance, and Scottish Lesbians did). If they had applied I cannot see why they wouldn't have been allowed to make submissions. The interesting question is why no trans group applied to intervene in this case. Maybe they had received advice that For Women Scotland's case was hopeless so there was no point? Jo Maugham hinted that trans groups were worried about receiving negative attention, but with respect - their job as NGOS and charities is to represent their community and absorb any negative attention away from individuals.

It also would not have been helpful or appropriate for an individual person like McCloud to have made submissions on behalf of the trans community. First, McCloud is just one person so cannot be said to represent the whole trans community (this is why an NGO would have been better). Second, McCloud is not a legal expert in this area (although he is a judge). The entire case was on quite dry and technical points about statutory interpretation - what could McCloud possibly have said on that point? All that would have happened is McCloud would have said some emotive stuff about the potential impact on him, how he's a woman etc which would simply not have assisted the court in making their decision.

Finally, if the argument is that no trans people were represented because no trans people actually got to make submissions in court (despite the fact their arguments were represented by the Scottish government and Amnesty International) then women didn't actually get representation in the court either. No individual woman got to make a submission about the impact of the law on her, and all of the submissions were made by a male barrister.

There’s that difference between female, and not trans, and therefore being able to carry a surrogate.

Would be a bit silly asking someone without a womb to carry a child?

Regardless of whether changes are a good thing or a bad thing, any changes affecting people's fundamental rights need to be brought about via democratic means.

The decision of the Supreme Court has democratic legitimacy, because all they were doing was ruling on the proper interpretation of a law that was passed by our democratically elected government. A government elected in a general election that almost every British person over the age of 35 had the opportunity to vote in.

The machinations of Stonewall and their ilk lack democratic legitimacy because nobody elected them and nobody has the power to unelect them.

If they want to bring about changes altering the balance between trans rights and women's rights, they need to do that through the proper channels. By campaigning for a change in the law that our democratically elected government debates and votes on.

Many thanks WeeBisom, I have been following this thread hoping to learn more on this point.

Where did the Good Law Project fit in to it. Did they seek to intervene, proposing McCourt as their representative? Your response suggests that the proposal was for McCourt to intervene as an individual?

@WeeBisom I wonder if trans NGOs and charities didn't apply to intervene because they pretend they are 'all friends together' LGBT. If they had had to put together a forensically detailed, cohesive legal argument, they would have undermined one of the 'other letters' - most especially the L. And while they happily do that day in, day out and wash the whole thing in rainbow colours, it's probably harder to do it in a dry, legal document.

That’s why I said personally etc, because I’m aware that others don’t agree and that’s who the judgement is for.

I would point out that if the debate is about “our” spaces when women are discussing their right for sex based spaces. “Our bathrooms, our changing facilities,” etc - which I have seen in that conversation. As a woman, I do fall into that “our” and therefore they are also “my” spaces.

I don’t need to share a bathroom with anyone, and wouldn’t go so far to campaign for trans women to be welcomed into them, the point I’m making is that some biological women didn’t mind them being there to begin with. That doesn’t take anything away from those that did.

To continue, what I mean is, Stonewall is happy to shit all over lesbians but they'd rather people didn't realise that that's what they're doing.

I've read the Good Law crowdfunder and it seems they filed for intervention on behalf of Dr McCloud and Prof Stephen Whittle. The update says "we are disappointed to share that the Supreme Court has excluded Dr Victoria McCloud and Professor Stephen Whittle from making their intervention. It has not provided any explanation for this decision. Concerningly, it has also offered several groups who want to change the legislation permission to intervene and just one group permission who wants to protect it: amnesty international uk." So it looks like the Good Law project supported McCloud and Whittle's application to be individual interveners, on the basis that they were 'trans voices'.

That could be right. They would have had to commit themselves to a position that being a lesbian means being attracted to females AND males who possess a GRC (but not males who do not possess a GRC). It would have been very awkward for Stonewall to publicly argue that transwomen without GRCS aren't really lesbians given their views on self ID, and they would have had to fully commit on paper to the position that lesbianity includes attraction to males.Also, quite a large part of the submissions concerned the awkward fact that transmen would have to be excluded from maternity/breastfeeding protections, so it might have been seen as too risky to be perceived as throwing transmen under the bus. Much safer for the Scottish government to make these arguments.

They are yours, and they are also mine.

Yours + mine = ours.

That means that none of us can consent to the inclusion of trans women in women's spaces on behalf of the rest of us. If even one woman does not consent, the group as a whole cannot consent. Frankly, even if it were put to a vote and all adult women voted in favour of including trans women, should they be allowed to consent on behalf of girls too young to vote or even not yet born?

I acknowledge that some women feel quite strongly about wanting to share their spaces with trans women. They are welcome to campaign for additional, trans friendly spaces which they can also use in solidarity with their trans friends.

But they should not be taking these spaces from women and repurposing them as mixed sex spaces (which is what trans friendly spaces are), and if they create new spaces they should not call them women's spaces, because this would be misleading. Clear terminology is important. Trans women are not women. Never were, never will be. And it is vital that we are allowed to say this.

It's not about being afraid of change.

It's about making sure that existing protections for women, gay men, lesbians, autistic people, people from minority religions maintain their existing rights and are not told to put up and shut up about things that adversely affect their freedom, safety, privacy and dignity because one other group decides they are right and therefore more important. This is not what equality looks like. Nor is forcing these groups into silence and compliance liberal. It actively authoritarian.

Equality is about recognising these key points and understanding that no one thinks and feels the same but doing the best to balance these issues.

If transwomen demand and expect validation from others and demand and expect compliance with believing in gender rather than sex they are not remotely interested in equality. So I refuse to pretend they are.

Further than this, being trans relies on an acknowledgement of sex. Without sex transwomen have no status of gender reassignment. And then therefore get no special protections for this. This is fundamental because there are certain scenarios where it very much applies.

A trans person has the right to an equal standard of medical care. If we say that gender replaces sex, then there's no protection for ensuring trans people have equal access to good care because they can only be treated as if they are their acquired gender. Not only that we face potentially criminalising doctors who try to treat bodies on the basis of sex (as they should because it's rather fundamental to medicine). Thus a transwoman presenting with a heart attack must be treated as a man in terms of presentation and treatment. Equally certain conditions are sex based, and therefore can't be treated as a feminine matter. Because it's fucking incoherent nonsense.

So the ruling very much in the best interests of all groups - including wailing trans people complaining they are hard done is legal illiteracy. The law doesn't work if you replace things with a system which means that existing rights collapse and equality is ignored.

The law isn't about being nice. It's about clear definitions which are workable in practice.

This inability to understand that if you can't come up with a closed, clear definition then you can't create law is fundamental to the whole subject.

The failures to communicate - and this includes the media and politicians who really should know better - centre on this problem of legal illiteracy.

Fair enough and thanks for clarifying.

I am aware there are women who don’t feel that women have a right to spaces without men.

For me, it all falls down when women cannot ask for woman only spaces when they have been raped and are so much in fear of men that they cannot attend meetings to help them heal, because there might be a man there.

For women in prison too, it’s been a fundamental right since the Geneva convention, and if your rules are applied, that right is removed.

And in sports? Would you include men in the women’s sections there, even if that meant women lost out, over and over?

As soon as we concede that some men are women, the impossible questions begin. Which men? What do they have to do or say, before we bestow womanhood on them? How can we exclude men who are lying?

It does not come down to how confident you are in your supposed womanhood. If some men are women, then women no longer means what it means. You can only claim some men are women if you know what a woman is… and without that biological definition you despise, it means nothing at all…

For women to secure sex based rights there needs to be a consistent definition of what a woman is. Female safeguarding is predicated on protecting women (female humans) from men (male) because the latter has a physical advantage and is responsible for an overwhelming majority of violent crime. The sex binary -- male and female is pertinent here.

The trans/cis binary renders the concept of womanhood meaningless. The distinction hinges on sex, not an unverifiable gender identity. The illogical end of the trans argument is: Men are men. Women are women. But men are women and women are men if they say so. Hence, men are women and women are men.

Women, regardless of how they present themselves, share biological features and a body plan no man can acquire and vice versa.

It's not about being insecure about one's womanhood. Women don't care what a man wishes he'd rather look like. We aren't jealous of or threatened by them in the least. But when men try to extend that desire to look or be treated akin to a woman to stake a claim on women's sex based rights, the purpose of those provisions is defeated. 'Just trying to live our lives' ends where other people's rights begin.

I will say I'd be much less diplomatic with my friends who identify as Marxists but have been trying for years to reconcile their Marxism with queer theory, and are currently coming out with lots of Butlerian flapdoodle about how biological sex isn't real and "woman" is an ever shifting sociolinguistic construct.

NO. You're supposed to be philosophical materialists you fucking muppets. If you're going to enter the realms of mysticism, at least have the balls to admit it.

"Butlerian flapdoodle"

Yes this is good- but very very important to be clear that it's trans WOMEN it affects, not 'trans people'. Trans men were not fighting to be included in men's spaces, and it's important for them to keep eg maternity rights.

So e.g. Not 'trans people excluded from sport... trans women excluded from women's sport'.

The phrase 'trans people' obfuscates a lot that needs to be clear.

Another thing that gets lost is that the EA was actually a big step forward for gay rights. Remember the B&B that tried to exclude gay men from staying? Without the EA they would have been able to enforce that. And it was far from uncontroversial at the time- the EA was actually quite radical.

Ever changing sociolinguistic concepts can't be written into law.

Why?

Because if the law is based on indefinable circular concepts that everyone has their own unique individual definition of it's unworkable.

Throughout this, we have NEVER got past the issue of 'What is a woman?'

Genderists refuse to answer or say, anyone who says they are. This isn't feasible to uphold either sex or gender discrimination, because how does know where they stand. You can't protect a gender, if various organisations and individuals have different definitions or you can change at will.

I mean, how do you stop gender discrimination, if no one can agree on what gender is nor stay the same gender between farts?

The supreme court ruling merely highlights this - it had to rule on 'what is a woman?' Legally there has to be a universal definition that is fixed and there is a settled agreement on. Because this consensus is the very foundation of the law.

You can't have 'timeywhimey' law, because it can never be fair, equal or justice if it changes from one legal case to the next using the same law! Image two identical cases, under the same law but the judge decides that since Julie defines a woman as X and Faye defines a woman as Y and it's only their interpretation that matters poor old Anna and Kate get treated in completely different ways. The law is supposed to treat people the same and consistently.

This is why feelings are irrelevant on this. It has to be impartial, definable and observable reality that can be proved beyond reasonable doubt. Cos that what the law is based on.

People trying to inject feelings into law are quite frankly, dim. (Or grifters - special credit to you know who here).

You do know your reasoning won’t be heard

Ooh, I had one of those for breakfast the other day! Full of nuts, and ultimately pretty unsatisfying.

This is bang on the money. It's always been the trouble with the trans stuff - there is no clear, agreed definition. Anyone can say they're trans. In fact, I would argue that if you did try and come up with a coherent definition of trans for the purpose of equality legislation, the whole movement would fall apart very quickly because they wouldn't be able to agree on one.

I wonder when the penny will drop for the trans community that the people they need to direct their ire towards are the likes of Stonewall etc. Who spent years misrepresenting the law to them leading them to believe they had legal rights they never did, instead of actually campaigning to make life better for trans people

The horrors of what Naomi Cunningham phrased as Conspicuously Law Abiding Women.

Right since before 2010 and right since. Despite individuals lining up to deliver death threats and promises of violence and organisations victimising sex realist beliefs and dismantling safeguarding in plain sight.

CLAWS. Reassuringly right all along.