No one can tell trans women who they are

Over the past ten years, it has become all too common for trans people to start their day with headlines announcing yet another rollback of their rights. But yesterday (April 16) was especially devastating, as the UK Supreme Court decided that transgender women are not worth the same legal protection as cisgender women. 

The court sided with anti-trans group For Women Scotland, which brought a case against the Scottish government after judges in Edinburgh previously ruled it was appropriate for trans women to sit on public boards in posts specifically for women. The 88-page ruling states that a person with a Gender Recognition Certificate (GRC) in the female gender “does not come within the definition of ‘woman’ for the purposes of sex discrimination”. 

Although it is not entirely clear what impact this ruling will have, there have been suggestions that it will make it easier to exclude trans women from single sex spaces. However, the Equality Act 2010 already allows transgender women – even those holding a GRC – to be excluded from women-only groups and services, such as refuges, prisons or clubs, if it is “a proportionate means of achieving a legitimate aim”. Nonetheless, the decision has been hailed as an irrefutable victory by anti-trans campaigners, with groups such as the Labour Women’s Declaration calling on Prime Minister Keir Starmer to “instruct all government departments to bring their policies, training and guidance into line with the judgment”. 

“The media is all over this,” Steph Richards, founder of TransLucent, tells Dazed. “But in reality, it’s likely to impact only a small fraction of trans people, specifically those who hold GRCs.” Still, it’s hard to see the grins of anti-trans activists clinking champagne glasses outside the Supreme Court, celebrating what they see as a win for anyone thirsty for the oppression of trans people. And while a limited number of trans people possess GRCs (only around 5,000 since they were first introduced in 2004), the Court’s move to effectively strip these documents of their legal weight marks a significant regression in trans rights.

Yet the ruling raises more questions than it answers, and this is most glaring in its approach to workplace discrimination: the judgment states that a transgender woman may claim sex-based discrimination only if the employer is unaware she is trans – essentially, if she ‘passes’ as cisgender. Because trans people are a complex and diverse community, rather than a homogenous group, this strategy is, of course, fundamentally unworkable. As Founder and Director of Good Law Project, Jolyon Maugham, explains: “Some trans people can’t pass. And some do not want to pass – and if that is the case, then they will not be entitled to the same protection [as cis women]”. 

This ruling oversimplifies the oppression transgender women experience. The misogyny I face is not separate from my identity as a trans person – it is shaped by it

Lord Hodge, one of the five judges in the ruling, argued it “should not be considered a triumph of one group over another”. But what are we supposed to think when legal protection for one group is conditional on their social behaviour and even appearance, while another group receives it unconditionally? The disparity is unmistakable. We cannot pretend otherwise. 

The underlying message of the Supreme Court is clear: misogyny and transphobia are entirely separate categories of prejudice. They are, according to the court, in conflict, just as they view the legal entitlement of cis and trans women as also being in conflict. The Court has failed in its stated intent to bring “clarity and confidence” to a convoluted debate. It has also left no room for nuance and intersectionality. 

This ruling oversimplifies the oppression transgender women experience. The misogyny I face is not separate from my identity as a trans person – it is shaped by it. Time and time again, women like me are told we can never understand what it is like to live under the most brutal conditions of patriarchy. Yet we hear as often that our right to make decisions about our bodies is a violation of nature – the same anti-feminist and fascist line used to maintain women’s domestic roles and constrain their reproductive rights. To be a woman in today’s society is to have your body surveilled and controlled by a state that fears you stepping out of line. Likewise, trans people are told that choosing the path of gender transition is dangerous and wrong. This decision by the Supreme Court fails to acknowledge how misogyny operates through these overlapping systems of control, and in doing so, overlooks the specific ways it targets trans women. A distinction between sexism and transphobia may now be written into law, but within my own life, the two remain impossible to disentangle. 

It’s times like these that urge me to find true “clarity” in the feminists devoted to intersectionality. In agonising over the judgment, I was reminded of Amia Srinivasan’s The Right to Sex, which argues against the belief that women must always find a common ground to seek liberation. The idea that we should resist patriarchy based on women’s shared sex is an exclusionary politics: sex is only part of the story for an immigrant or working-class woman, and for trans women, it is a concept that excludes and alienates, not unifies. The Supreme Court’s ruling is an example of what happens when white, liberal feminism aims to define the characteristics that make all women the same: it negates our intimate differences, which, as Srinivasan suggests, “isn’t just to ignore, but to guarantee, the oppression of the worst-off women.”

To any trans person struggling with this news, I want to remind you that you know who you are better than anyone else. No state, political party, or Supreme Court judge can define you. You are not a harm to the world. You are, at the very least, a beacon of hope in a world that has lost it. And to any cis people, let this be your call to fight for and defend trans people. You can be a beacon too.