Trans lives are real and they matter. The courts must recognise that

If you are trans, but not out, you must nevertheless stop using the toilets of your lived gender at work, the High Court has decided.

Perhaps your colleagues notice you have suddenly and strangely started using the disabled toilets – and they work out that you are trans. To this possibility, the judge says that “a propensity for gossip is a feature of every workplace” and “up to a point, being the subject of comment by others is burden that anyone can expect to bear from time to time, and ought not to be a foundation for legal redress” (paragraph 73). 

It doesn’t matter if you have lived as a woman or a man the entirety of your adult life and even your close friends don’t know. It doesn’t matter how you present, what stage you are at in your transition, or what medical treatments you have undertaken. It doesn’t matter that we live in a society that is increasingly transphobic and, increasingly, violently so. It doesn’t matter that, particularly in such a society, trans people might feel that their privacy is a matter of profound importance and no one’s business but their own. It doesn’t matter that there is no evidence that allowing you to use the toilets you have always used will cause harm. It doesn’t matter if forcibly outing you as trans will put you at risk of harm.

And the conclusion of the High Court that these consequences are about “gossip” was made in the face of really powerful evidence of what it means to face the risk of being outed from the three trans Claimants in our case: a woman, a man and someone who is intersex. Their evidence is entirely typical of the experiences of the trans community as a whole as reported by, for instance, TransActual.

I lead with these thoughts because they articulate something important about where so many of our judges are going wrong – in so many cases involving trans people – and in this one. Those judges assume they understand the reality of what it is to be trans in a transphobic world. They assume – an assumption they make without even noticing – that the reality trans people describe is overstated, exaggerated, somewhat akin to hysteria. And in consequence their acts cease to be judicial acts and become something else, something rather dark.

How do you ask a judge, or anyone else, to listen to you with respect? Good Law Project’s lawyers have strongly advised me not to. They have said that making this plea will make those judges even more hostile to us and the trans community than they already are. But keeping silent isn’t working either. 

The right answer to my question is that we should not need to. Judges swear an oath to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” All manner of people and without fear or favour. But the evidence is we do need to ask them. We need to tell them that trans lives are real and they matter. 

We will, of course, appeal the decision, which we think is quite clearly wrong. 

It is wrong because it reduces trans people to a third sex. It is wrong because it gives little or no weight to the harm done to trans people by excluding them. And it is wrong because it is not interested enough in the rights of people who are trans to keep their status private.

But although the decision is wrong and we will appeal it, irrespective of the outcome of our appeal, the challenge was nevertheless hugely useful. 

As we set out in more detail here, the judge has found (in effect) that parts of the draft Statutory Guidance are unlawful. They will have to be redrafted to recognise that, outside of the workplace at any rate, trans people cannot just be excluded from gendered spaces. Contrary to what has been claimed, it is entirely lawful for service providers to allow trans women to use the women’s toilets. And this is true whether our appeal succeeds or fails.

Hardly a day goes by without me being told by someone, often more than one, trans person that they do not know what they would have done without the unflinching support of Good Law Project in the last year: “I doubt I would still be here.” We hear you and we will not walk away.

We know you will be distressed by this High Court decision. We are distressed by it too. We know and you know, because the Supreme Court taught us this valuable lesson, that the law is not applied without fear or favour to all manner of people both trans and cis.

But that does not mean that the law cannot help at all. And if we need to go to the Court of Justice in Luxembourg or the Court of Human Rights in Strasbourg to get justice, we will.