Straight on Paper
The supreme significance of the Lesbian Interveners
This Wednesday, the UK Supreme Court handed For Women Scotland a resounding win in its case against the Scottish Government, finding unanimously that “Sex” in the UK Equality Act could only mean biological sex, and not sex as modified by a Gender Recognition Certificate. This (in theory) put to rest over a decade of confusion and deliberate misrepresentation over the interaction between the Gender Recognition Act and the Equality Act, and who was covered by sex discrimination measures.
One aspect that has not been given nearly enough focus in the ensuing coverage is the intervention in the case by a group of lesbian campaigners - LGB Alliance, The Lesbian Project and Scottish Lesbians. The submission by The Lesbian Interveners (which is a fantastic band name) focused on the operation of the protected characteristic of “sexual orientation”, which was itself dependent on any interpretation of “sex”. Since the definitions in the Equality Act cover same-sex, opposite-sex and both-sex orientations, establishing exactly how they work affects everyone, gay, straight or bisexual alike. Predictably though, it has fallen to lesbians in particular to defend their sexuality given it was their sexual boundaries under the gravest assault, by men demanding recognition as lesbians.
The judgment gave serious consideration to the arguments put forward in their submission, and found them persuasive, noting:
The second core provision is section 12 of the EA 2010 which defines the protected characteristic of sexual orientation and is framed by reference to orientation towards persons of the same sex, the opposite sex, or either sex. Read fairly, references to sex in this provision can only mean biological sex. People are not sexually oriented towards those in possession of a certificate.
This is an obvious point and one that the interveners have been making, fairly, for years. It is so obvious and straightforward that their opponents have had to generate an awful lot of vitriol to stop anybody being exposed to such a straightforward and obvious point, for fear they might be (rightly) persuaded by it. Nobody’s sexuality is dependent on having the correct paperwork. It is an obvious absurdity that a straight couple might become gay if one pays £5 and fills out an online form.
Disappointingly, lower courts failed to grapple with this basic issue as the case made its way to the Supreme Court. Yet, for the lesbian interveners, this is fundamental because the Equality Act is what protects those who are same-sex oriented from discrimination, and permits things such as gay- or lesbian-only associations to operate. Finally, after all of the interveners facing years of hostility and defamation for standing up for their rights the Supreme Court has quite rightly ruled that the protections for sexual orientation are dependent on actual sex, and not a legal fiction. Nobody’s sexual orientation can be changed by either them or their partner obtaining a government document changing their sex on paper.
All of which is ironic, because the whole rationale for the Gender Recognition Act 2004 was to change both partners’ sexual orientation.
Goodwin
The legal case that ultimately precipitated the Gender Recognition Act was Christine Goodwin vs The United Kingdom, at the European Court of Human Rights. Goodwin successfully argued that a failure to be treated as female by the UK Government violated articles 8 and 12 of the European Convention on Human Rights.
Article 12 is the right to marriage and family life, and because in the UK marriage was strictly between two members of the opposite sex, Goodwin was unable to marry a man:
The applicant in this case lives as a woman, is in a relationship with a man and would only wish to marry a man. She has no possibility of doing so. In the Court's view, she may therefore claim that the very essence of her right to marry has been infringed.
Article 8 is less straightforward, and covers the right to privacy. Since eg. Goodwin’s national insurance number revealed he was in fact male, he was subject to discrimination and harassment in the workplace, and absent decent workplace protections and greater societal acceptance it was ruled that Goodwin should be allowed to keep this information private. Reading the judgment it is clear that this was deemed a violation at least in part due to the UK Government dragging its feet on implementing decent anti-discrimination measures that would have offered greater protections to Goodwin:
a report has been issued in April 2000 by the Interdepartmental Working Group which set out a survey of the current position of transsexuals in inter alia criminal law, family and employment matters and identified various options for reform. Nothing has effectively been done to further these proposals and in July 2001 the Court of Appeal noted that there were no plans to do so (see paragraphs 52-53). It may be observed that the only legislative reform of note, applying certain non-discrimination provisions to transsexuals, flowed from a decision of the European Court of Justice of 30 April 1996 which held that discrimination based on a change of gender was equivalent to discrimination on grounds of sex (see paragraphs 43-45 above). Having regard to the above considerations, the Court finds that the respondent Government can no longer claim that the matter falls within their margin of appreciation
In order to comply with the Convention, the UK Government would need to legislate to address both of these points. A couple of years after this ruling, the Gender Recognition Act was passed, creating the legal fiction that two men could marry if one was, on paper, a woman. Thus the state could go on imagining marriage was a heterosexual institution, all predicated on sexism, homophobia and transphobia.
Sexism, because it was founded on regressive stereotypes about what “living as a woman” meant and conforming to “the social role of the assigned gender”.
Homophobia, because the simple idea of just letting men or women marry each other was seemingly unthinkable.
Transphobia, because rather than focus on anti-discrimination protections for those who transition, instead the state colluded to obfuscate their sex and pretend it hadn’t happened, in the name of privacy.
Rather than permit gay marriage or protect trans people from discrimination or even (gasp) recognise that women are more than just a social role men can adopt, the government of the day chose instead to issue a certificate with the power to declare a gay man to be a straight woman, and then made the information private so nobody could ask about it or, indeed, have to think about it. Sweep it under the carpet and carry on as normal.
It took another 21 years for the Supreme Court to come to the opposite conclusion with respect to the interpretation of the 2010 Equality Act, and state that sexual orientation cannot possibly be changed by the possession of a certificate, because that would be both ridiculous and grossly offensive.
Clarity
So the Supreme Court has given a final ruling that entirely vindicates the many, many campaigners who have been abused and defamed simply for having a correct interpretation of the Equality Act. What has been won has been exactly what For Women Scotland, and LGB Alliance and Sex Matters every other party to this case was seeking: to recognise the Equality Act in its current form, with all its protections intact, interpreted correctly, giving equal protection to women, LGB people, and trans people.
In that light, it is quite revealing that not a single LGBT rights group in the UK welcomed this ruling, which unequivocally defended the rights of LGB people. Stonewall’s response was to describe it as worrying, and express “deep concern at the widespread implications”. But what are those implications, if this judgement is simply clarifying existing law? There are only implications if you have spent the last decade or so being wrong about what the law says - which of course is exactly the problem Stonewall face. Likewise LGBT Consortium, whose joint statement with dozens of signatory organisations expresses deep concern at the “widespread, harmful implications” of the ruling.
Which invites the question - what have they actually campaigning for before now?
If they believe a ruling that protects the rights of LGB people on the basis of sex is “harmful” and “worrying”, on what basis do they believe sexual orientation should be protected in law? Now that we have clarity in law, we should have clarity from those who are expressing outrage at this ruling. If they had such strong views, why did not a single one attempt to intervene in this case to put forward their position on how LGB rights should be interpreted? What it all makes abundantly clear is that whole chunks of civil society are now single-issue campaigners, with a focus solely on advancing some amorphous idea of “trans rights” with either no idea or no concern what that entails or which other rights are thrown under the bus in the process.
In the knee-jerk condemnation of this ruling, these organisations demonstrate that they believe that people who are same-sex oriented should not have protections on that basis. They believe that someone’s sexual orientation can be converted via government paperwork, and that exclusively same-sex attracted men and women should not be allowed to form associations of their own. They believe that an online form and an administrative fee can turn men into lesbians and women into gay men. They should admit that they believe people are sexually attracted to red tape, and campaign for it, honestly and openly, and see just how many of their supporters agree with that.
And all those blindly following their lead in condemning this ruling, desperate to be on the right side of history - the corporate sponsors and trade unions and celebrities and political parties - should finally admit that they are campaigning for the erasure of sexual orientation as a meaningful concept in law, and now they are enraged because a group of lesbians dared to stand up and say no.