Trans rights and legal wrongs

Rights

It is specifically bad law that carves out huge exemptions for trans equality and was written in a way that allowed the Supreme Court to rule it would be incoherent to assume it was meant to include us. 

It did so, in part, due to a society that at the time largely sought to pretend we didn’t exist but also as a result of the Gender Recognition Act 2004 (GRA), also written under a Labour government.

The GRA is awful and trans people have been saying so for about as long as we have had a GRA. It has functioned as nothing but a burden for trans people and further complicated our legal position.

Despite boasting about passing it on many occasions across the last two decades, Labour politicians didn’t do so out of the goodness of their own hearts. 

They were mandated to provide legal recognition for trans people after being sued by a bus driver on the basis of two articles of human rights: the right to private life and the right to marriage  ( straight marriage, at least).

Protections

In some respects the GRA was ahead of its time, having no requirements for medical or surgical intervention. But in others  –  the ones that really count here - – it is firmly rooted in the attitudes of the 70s court case that necessitated it. 

Corbett V Corbett was the 1971 divorce case between a Baron and his wife, April Ashley, who he married in full knowledge she was a transgender woman. 

In order to avoid paying any maintenance to her after a divorce, he sought to have the marriage made void by arguing the marriage couldn’t stand legally as it was a gay marriage. He was successful in doing so, enshrining birth certificates as legal sex in the process.

In both the Supreme Court ruling and Corbett V Corbett the dividing line between trans women’s inclusion as women is whether or not we can give birth. 

In Corbett, the judge states that we “cannot fulfill the role of a woman in marriage” alluding to pregnancy and in the Supreme Court part of their reasoning is that protections for pregnant women would be incoherent if applied to trans women.

Challenge

The more our legislative systems have tried to bottle the concept of sex and split it out neatly into two distinct groups the worse things have gotten for transgender people who have long maintained that it’s probably a bit more complicated than that. 

Even now, the current Labour government is facing challenges in this area with regard to non-binary recognition, via Ryan Castellucci’s ongoing legal fight.

Castellucci has so far been unsuccessful in their attempts, but remains undeterred. Should they be successful, however, Labour will once again be tasked with implementing primary legislation. Something which it has repeatedly proven it is really bad at, especially with regard to transgender people.

The Supreme Court ruling is bad law written because of the bad law that precedes that, and the bad law that precedes that, and the dodgy judgment in a divorce case meant to protect the wealth of an aristocrat that precedes that. 

Should Castellucci or another challenge to the government’s legal recognition succeed, the temptation will be to simply try and build on top of the above. 

Learn

Instead I, and a growing number of voices in the transgender and feminist communities, think we should seek to knock it all down and start again.

We need to abolish legal recognition of sex and properly enshrine protections that aren’t potentially reliant on whether or not people in 2010, 2004 and the 1970s wrote legislation that properly considered transgender people’s lived experiences. 

If we ever want to see good law being built – whether that’s for transgender equality, women’s rights or even climate action – then we have to lay the foundations for that correctly. The solution can’t be to build on what we have when what we have is so deeply filled with problems. 

Sometimes the only way forwards is to start over and learn from your mistakes.

This Author

Gemma Stone is co-founder of Trans Writes, a transgender-led platform that seeks out and publishes writings exclusively from transgender creators. This article has been published through the Ecologist Writers’ Fund. We ask readers for donations to pay some authors £250 for their work. Please make a donation now. You can learn more about the fund, and make an application, on our website.