Piecing together our fight for trans rights

It’s Pride month, but in the UK, the rights of trans people are under attack. The government has now laid dangerous guidance before parliament – encouraging a nationwide bathroom ban which would push trans people out of gendered services and facilities into third spaces, which may not even be available. All of this follows a Supreme Court judgment last year which, dreadful though it was, has been leveraged far beyond what the judges decided to roll back trans rights.

Good Law Project – with your help – have been hard at work to try and slow that rollback, and to start building a future where trans human rights are fully protected. This Pride, a small, but significant part of that effort has involved working with the trans community to create a symbol of hope and resilience. We’ll be marching with our Trans Unity Quilt – a giant patchwork quilt, which so many of you have contributed towards – at London Trans+ Pride this year. We have been delighted to see it come together, and we cannot wait to carry it with you.

This beautiful quilt – so many small pieces brought together to create an impactful whole – embodies our whole approach to fighting for trans rights. With our internal expertise, important stakeholders in the community, and a whole swathe of brilliant legal minds, we have been piecing together a quilt of legal cases which we believe can help us fight back.

Perhaps the most central piece is our challenge to our national human rights and equalities body, the EHRC. This challenge was brought against their interim guidance, rushed out just days after the Supreme Court decision, which told employers and service providers that they had to ban trans people from gendered facilities. Our claimants – a trans woman, a trans man, and an intersex person – were all told by their employers that they could no longer use the appropriate toilets at work. Even though the EHRC withdrew its interim guidance, it continues to impact the lives of trans people up and down the country.

Our challenge was heard in November, and in February the High Court ruled against us – finding that requiring trans people to use third spaces was justifiable, whilst comparing the risk of trans people being outed to “workplace gossip”. We think the High Court decision got the law wrong, and is incompatible with human rights – so we have applied for permission to appeal. But even the High Court’s judgment makes clear that the law is not what anti-trans campaigners have been claiming it to be.

The High Court said there was a strong argument that trans inclusive toilets – for example, toilets provided solely for cis and trans women – could be lawful, and would not discriminate against cis men by excluding them. This important part of the judgment seems to have been ignored by the EHRC and the government, as they have nonetheless claimed in their updated draft of the statutory guidance that trans-inclusive women’s services are “very likely” to discriminate against cis men. This is despite the fact that Good Law Project wrote to the relevant minister, Bridget Phillipson, in February – to highlight the consequences of the decision for this aspect of the guidance.

The EHRC has now written to the Court of Appeal, claiming that the updated code of practice will overtake our challenge. We strongly disagree. The code of practice applies only to service providers and associations, whereas the interim guidance also affected workplaces. Indeed, each of our claimants faced exclusion at work. The EHRC has refused to disavow its transphobic interim guidance, and still claims it was an accurate representation of the law. We think our challenge remains live, relevant, and pressing, and we have written to the court to ask that our application for permission is determined as soon as possible.

We hope that our challenge will allow the Court of Appeal to explain how the law can now be interpreted in a way that fully protects trans people’s human rights. If it thinks this is impossible, it can issue a declaration of incompatibility, telling parliament that trans human rights are being violated, and it needs to legislate to fix this. If the Court of Appeal instead decides that trans exclusion is acceptable, we will continue our challenge – if necessary – all the way to the European Court of Human Rights. But we can’t go straight there – we first need to understand what the law actually requires (as opposed to what anti-trans campaigners claim about it), and to exhaust domestic remedies. This means we have to go all the way through the domestic courts before we go to Strasbourg.

And this is just one patch of our quilt. There are so many more.

For example, we are helping two trans gym users sue Virgin Active over their recent policy of trans exclusion. We think this case shows the harsh reality of third spaces in practice. Not only do our claimants face the indignity and risk of being segregated from the general public and told to use accessible toilets to change, they can’t even use all of the facilities they are paying for – such as the pool and sauna – because these can only be reached by going through either the men’s or women’s changing rooms. Both claimants have been so worried about using the gym that they have either greatly reduced or completely stopped using some facilities for fear of being harassed. We know that this is now the experience of so many trans people just trying to live their lives. But we say the law does not require trans exclusion, and that Virgin Active have unlawfully discriminated against our claimants.

Virgin Active implemented their transphobic rules after they were threatened with legal action by GB News presenter Michelle Dewberry, with the support of the anti-trans group Sex Matters. They are not the only organisation who has been threatened unless they enforce trans-exclusion. 

The Women’s Institute and Girlguiding faced similar legal threats, and said they felt they had no choice but to force out their trans members – causing immense harm. We think the law allows associations to remain trans inclusive, and we offered to defend both organisations from any legal threats – and indemnify them against all costs. Thousands of you emailed, encouraging them to accept our offer and defend their trans members. Sadly, they have continued to roll out their policy of exclusion – despite the fact that even the new EHRC guidance says that associations can be inclusive, offering membership to both cis and trans women without having to admit cis men.

But not everyone has capitulated to transphobic legal threats. Some have bravely stood up for inclusion. Hampstead ponds, for example, have decided to stand up for their trans users following a public consultation, where 86% of respondents said they wanted the ponds to remain trans inclusive. This followed a petition, signed by over 14,000 of you, urging that hate be kept out of Hampstead ponds. 

Sex Matters were initially refused permission to challenge the ponds’ decision to remain inclusive, but after an appeal they have now been granted permission to bring their challenge. We plan to intervene in that challenge. We have been preparing this case for months, working on our legal arguments and gathering witness statements from people who want the ponds to remain trans inclusive, and have been swimming alongside trans people – often for decades. We need to make sure that the voices of the inclusive majority are heard.

In Northern Ireland, the legal picture after the Supreme Court decision is even more complex. The decision of the Supreme Court concerned the meaning of the Equality Act 2010, but the relevant parts of the Act do not apply in Northern Ireland, which has different discrimination legislation. The Equality Commission for Northern Ireland (ECNI), its equalities body, has applied to the High Court seeking a declaration as to how its legislation should now be interpreted. This followed a challenge by Good Law Project to the ECNI, who had advised a trans woman’s employer that she should be excluded from the female toilets.

The case had been awaiting the recent decision of the Supreme Court in Dillon, which concerned the UK’s withdrawal agreement with the EU, and how this affects the rights of people in Northern Ireland. Following that decision, the ECNI are now seeking leave for their judicial review. Good Law Project are intervening to argue that applying definitions based on “biological sex” to Northern Irish equalities legislation would be incompatible with trans people’s human rights, and with their rights under EU law. We think this means that under the withdrawal agreement, such a definition cannot be adopted. We expect this case to be heard later this year.

We are also defending trans participation in grassroots sports – another aspect of trans people’s lives which has come under attack following the Supreme Court judgment. We think nothing in the Supreme Court’s judgment prevents sports from remaining trans inclusive if they want to be, and we think that trans exclusion can still be unlawful. We are supporting an amateur cricket player who was forced to stop playing after the England and Wales Cricket Board rushed in a ban on trans women playing women’s recreational cricket. We say this is discrimination – trans people should be able to keep playing sport with their friends.

And even though the Supreme Court judgment was about gender recognition certificates – which are only for adults  – the decision has also been used to threaten trans inclusion in schools. It’s difficult for trans people in the UK right now, but it’s even harder for trans kids, who lack the same power and voice as adults. We have written to the government about its draft guidance, Keeping Children Safe in Education, which we think encourages discrimination against trans kids, and we are representing a school which is facing legal action over its policy of trans inclusion. And our work goes beyond toilets and changing rooms. We are also suing a school which imposes a strict gendered uniform policy for students, saying girls have to wear skirts and boys must wear trousers. We think this policy is harmful for all kids, but it has a particular impact on trans pupils – we say this is discrimination.

Transphobia continues to be widespread. Hatred against trans people has been on the rise, emboldened by the Supreme Court decision and its political aftermath. Over 21,000 of you complained to Ofcom about TalkTV’s transphobic content, and Ofcom has now opened an investigation into one of them. We don’t think that’s good enough. And we are challenging the Bar Standards Board over their failure to take action against a barrister who deadnamed and misgendered a trans woman online. We think transphobia keeps getting a free pass – and we are fighting against it.

Transphobia also persists across the NHS, and not just in relation to gender-affirming healthcare. We are helping a trans woman sue a hospital who denied her treatment just because she’s trans. Our claimant was scheduled for surgery to remove her testes to treat her chronic pain. But a week before the operation was going to take place, the consultant called to say the surgery was cancelled. The hospital claimed they couldn’t operate because the surgery was classed as gender-affirming care. But surgery for pain has nothing to do with gender-affirming care, and refusing to treat someone just because of their gender identity is discrimination. We know that this kind of discrimination persists across healthcare – it’s so common it has a nickname: “trans broken arm syndrome”. We think our case will help make sure trans people can access the same healthcare we all need.

Good Law Project uses the law to stop hate and bring hope. But not all of our legal work takes place in court. Over the last year, we have tried to use our voice to push back on the transphobic narratives which now advocate excluding trans people from public life. We have used our internal expertise, and our access to brilliant lawyers, to try and explain what things actually mean, and what they don’t. Behind the scenes, we support those defending the trans community by providing the information they need to do their work, or by putting them in touch with the experts who can. 

And a lot of our work we also cannot yet talk about publicly. Some of that work we hope we will be able to share soon, while some will only be able to be shared later down the line. But we are grateful for the trust the community continues to place in us, as we work diligently to defend the rights of a community who never should have been put in a position where they needed our help. 

What must not get lost in the legal complexities is the principle underneath which motivates our work. Like all of us, trans people deserve lives which are full of joy, hope, and dignity. Trans rights are human rights – and we will keep fighting for them.

All of our trans rights work, every piece of this extraordinary quilt, would be impossible without you. We know that although creating each piece on its own requires immense labour, it is only when combined – and when viewed as a whole – that it can serve its purpose. As we construct it, piece by piece, we know we are creating something significant. This is a difficult fight, and we do not expect our work to be done for a long time. But it is not one we are fighting alone. Only when every piece of fabric, every hand hard at work, and every stitch comes together – will our quilt carry us into the future we all deserve.