A year under attack – and a year fighting back

A year ago today, the Supreme Court handed down its judgment on the meaning of “sex” under the Equality Act 2010.

The Court refused to hear from trans people – the group most profoundly affected by the case – and then dismantled a decades-old understanding of how they were protected by the Equality Act. And the powerful criticisms of the decision did not stop with the process by which it was reached. It was, for us as lawyers, a deeply shameful moment which infantilised and pathologised trans existence: a Dred Scott moment for our Supreme Court. YouGov polling shows a collapse in confidence in the legal system amongst trans people, and it’s not hard to understand why.

But we also know that the judiciary is not a monolith – not all judges will fail as the Supreme Court failed. And we continue to believe that the law has a role to play. The law does not help trans people as it should – but that does not mean it cannot help trans people at all.

Although the Supreme Court’s decision never required a bathroom ban – despite what has been claimed – the judgment asked more questions than it answered. And anti-trans campaigners rushed to fill the void of uncertainty it created. They have sought to leverage their narrow legal success into total cultural victory.

The most significant harm was caused by Labour ministers who, dishonestly, praised the decision’s “clarity” and rushed to suggest trans women must now use men’s toilets.

The response was reckless and irresponsible. But it was also craven. A Labour government elected on a manifesto promise to “remove indignities for trans people who deserve recognition and acceptance” instead rushed to celebrate their imposition.

The trans-hostile so-called Equality and Human Rights Commission rushed out exclusionary interim guidance just nine days later. This was followed by an equally hostile draft Code of Practice which, following a legal challenge brought by Good Law Project, was shown to be legally flawed and had to be revised.

The actions of the Supreme Court and the Labour government have emboldened anti-trans campaigners more generally. With widespread press support, the decision of the Supreme Court is presented as a vindication of the entirety of gender critical ideology – and is regularly described as having settled the question of “what is a woman, once and for all”. The BBC uniformly refers to trans people in transphobic terms, with phrases such as “biological woman who identifies as a man”.

Encouraged by success in the courts, and supported by far-right and billionaire funders, those campaigners have used legal threats and challenges to force ideological compliance. Sex Matters are suing Hampstead Ponds for remaining trans inclusive. And the Women’s Institute and Girlguiding have capitulated to demands that they exclude their trans members, despite an offer by Good Law Project to defend and indemnify them against any challenge to their inclusivity.

And yet. In the face of relentless pressure from public institutions, the private and state media, and the human rights watchdog that is supposed to protect them – the trans community refused to buckle. They fought back. And to that community, we say: Good Law Project has felt immensely privileged to fight alongside you.

We took on the EHRC’s transphobic interim guidance and the decision in that case showed that the EHRC’s draft code got the law wrong. After this, it has now had to be revised. And we have applied to appeal the parts of the decision we think the High Court got wrong.

In Northern Ireland, where the EU Withdrawal Agreement guarantees that human rights will not regress beyond 2016 protections, we are arguing the Supreme Court’s decision does exactly that. We are suing Virgin Active for its exclusionary policies; we are defending a school which wants to remain inclusive; and we are suing the England and Wales Cricket Board for excluding trans people from grassroots sports. There are other cases we can’t talk about publicly yet. And, behind the scenes, we help every day to support those fighting for trans inclusion.

We have also continued to fight and win cases in other areas of trans people’s lives, such as their right to protest, to obtain legal gender recognition, and to be respected in death.

Perhaps most importantly, we have worked to create spaces where trans creativity and solidarity can flourish. We celebrated alongside you, and our friends at Not A Phase, at Wembley Arena at the Trans Mission concert. We are currently working on our Trans Unity Quilt, weaving your stories together into a tangible symbol of our diversity and resilience. Our joy in the flowering of human creativity is what, ultimately, guarantees that we will win out over hatred and fear.

Thank you, the whole community, and all of our supporters, who have contributed to the fight back over the last year. You have shown immeasurable strength and courage. Nothing we’ve achieved could have been achieved without you.

You’re allowed to take a moment – just a moment – after a year of struggle, to be proud of the fact that we’re still here. We’re still fighting. And no matter how long and difficult the struggle is – it is a fight we will win, together.