Excluding trans people won’t stop you getting sued

This week, both Girl Guiding and the Women’s Institute announced their intention to exclude trans women and girls. They say this is because of the ruling of the Supreme Court earlier this year on the meaning of sex under the Equality Act 2010. Both have said that they do not want to exclude trans people – but feel that they have been forced to by legal threats.

Perhaps they’ve got the law wrong – it doesn’t require trans women and girls to be excluded. Indeed we think that a change in policy to exclude trans members may well be unlawful. It is unclear, for example, how the inclusion of trans girls in Girl Guiding can have been impacted by the decision in For Women Scotland. This is because the decision was about whether the definition of sex under the Equality Act 2010 included trans people with Gender Recognition Certificates – something under 18s have never been able to obtain. But it is more likely they have been bullied into submission by the costs of defending their policies of inclusion – they have decided they have no financial choice but to give in to the bullying. 

These are not the only trans inclusive organisations targeted by anti-trans campaigners. Later this month, the High Court will decide whether Sex Matters should be granted permission to challenge Hampstead women’s pond for being trans inclusive. Transphobes want to force the ladies’ pond to ban trans women, even though they recently voted to operate on a trans-inclusive basis. Good Law Project has already supported over 14,000 people to speak out, saying: This hate should be kept out of Hampstead Ponds.

The law in this area is complex, but it does not require trans exclusion. The Equality Act 2010, at Schedule 19, states that associations do not discriminate in their admissions by restricting membership to persons who share a protected characteristic. But it does not require them to do so, and there are ways that an organisation could justify admitting both cis and trans women as members – for example it might be able to rely on the fact that this is an example of positive action under section 158. We have already made our arguments in the High Court as to why organisations which are service providers, rather than associations, can continue to operate on a trans inclusive basis.

There are also important human rights considerations. This includes Article 11 of the Human Rights Act, which protects freedom of association. We think that preventing women from running their organisations on a trans-inclusive basis – where they desire to – is likely to interfere with their right to freedom of association in a manner that will be difficult to justify. 

The blanket exclusion of trans people from women’s organisations may also be a violation of their Article 8 right to respect for privacy, which requires that trans people are legally recognised as their acquired gender, rather than placed in an “intermediate zone” where they are treated as not quite one or the other. We think that if the law required trans women to be excluded from women’s associations, this would place them in such an intermediate zone, and would be incompatible with the UK’s obligations under the European Convention on Human Rights.

We want to support women’s organisations who want to remain trans inclusive, and we think the law is on their side. Good Law Project has previously offered legal and financial backing to several high profile national organisations threatened with legal challenges by anti-trans campaigners. We are prepared to consider doing this again if necessary.

But we also want to stand up for the trans women and girls who will now be excluded from Girl Guiding and the Women’s Institute. We don’t think this is fair or right – and we would like to bring legal proceedings against them. If you have been affected, either as a smaller group within these organisations, or as an individual – we want to  help.

For our trans rights lead, Jess O’Thomson, “the only way to stop bullies is to stand up to them”. 

“Anti-trans campaigners have been going around making legal threats, trying to force trans people out of public life,” O’Thomson said. “They thought after the Supreme Court decision in April that the whole world would suddenly agree with them. But they have misunderstood the law, as well as human nature.

“The reality is that lots of people still want to be trans inclusive, and we think the law is on their side. We want to support inclusive organisations who are being threatened, alongside the trans people who are now finding themselves excluded.”

• If you’ve been affected – reach out.