20. The true spirit of the Equality Act

 

Fifteen years ago, the culture wars were less febrile. Most people had started to take a live-and-let-live approach to trans men and women, accepting that we were just getting on with our lives, and many affirmed us, included us, and showed tolerance and respect. There was greater generosity of spirit and proportionality, and that was the social context within which the Equality Act was drafted and passed. Trans women were, as the Act itself recognised, women. Trans men were men. The legislators used pronouns that reflected that view, and was drafted on the back of the 2004 legislation that established a trans woman could change sex and be a woman, a trans man could be a man, 'for all purposes'. It was congruent recognition in both Acts. Trans people were to be included, in the sex they transitioned to, apart from a few exceptional circumstances.

What the Supreme Court appears to many to have done, with its interpretation amplified by the EHRC, is to retrospectively superimpose views that did not exist in the Act when it was drafted. If sex only meant 'biological sex' - a term entirely absent in the Act - then how did that find congruence with the Gender Recognition Act (2004) and the Equality Act's own recognition of other females as women in the legislators' words? How did the same politicians who passed the GRA's recognition of trans women as women, somehow also deny this very fact in law when they drafted and passed the Equality Act?

The fact is they obviously didn't.

The context of the Equality Act's drafting and intent was profoundly different to the interpretation of sex and women retrospectively back-prescribed by the Supreme Court, and then amplified with the exclusionary mind-set of the EHRC. The EHRC widened the anomaly created by the Supreme Court in regard to the GRA's clear definition of how trans women could be women, in the view of many being driven by gender-critical ideology at odds with what the law actually was in 2004 through 2010 and in the years that followed.

We see the inclusion of trans women as women being locked into the original EHRC Code of Practice in early 2011, and in their guidance to businesses (2014), and in the Parliamentary Committees and the Cameron government's own publications (see Section 7 of this site).

The spirit behind the legislation of those times was far more inclusive of trans women as women and trans men as men. Transition from one sex to another was accepted. It was not necessary to exclude trans women from female changing rooms with cubicles… for "the denial of a service to a transsexual person should only occur in exceptional circumstances". "A trans person should be free to select the facilities (such as toilets or changing rooms) appropriate to the gender in which they present." That was published by the Cameron government in line with the view since 2004's legislation that trans women were to be treated as women and the recognition that people could change sex to align with their gender.

That was the context - and the inclusive spirit - within which the Equality Act was drafted and passed.