“The claimant’s argument is an obvious absurdity”: Why Gender Criticals are panicking.
If you’re transgender in the UK, you’ve probably been following a recently legal proceeding brought by (*clears throat*) The Authentic Equity Alliance.
And if you’re transgender in the UK, you’ll know that any group featuring the word “Alliance” in it bringing legal proceedings where transgender people are involved tends to involve transgender hate.
The air-of-legitimacy group Authentic Equity Alliance is run by one Ann Sinnott, well known in the LGBTQIA+ community as being a transphobe; one that has access to crowdfunding power to bring legal proceedings. In this case, £100,000 of crowdfunding power.
In order to fully appreciate why this is making the Gender Criticals in the UK panic, we need to properly understand the purpose of a Judicial Review, and what, exactly, Sinnott was attempting to get reviewed.
The UK has a legal process in which a court can be asked to set legal precedent on matters where either the law appears unclear, or the law simply doesn’t exist. This is not to say that a Judicial Review is a process for finding someone guilty of something — that is exclusively the purview of court trials. Rather, a Judicial Review is to establish what the legality should be going forward.
The question concerns interpretation of the Equality Act. If you have read my previous articles, “Answering the Staniland Question” and “There’s no such thing as sex-based rights in the UK”, you’ll know (or be in obstinate defiance) that the Act grants the right of transgender people access to gendered spaces corresponding to their acquired gender. As with many things in the Act, there are exemptions to this, which are extremely limited and (in regards to this specific aspect) to be assessed on a case-by-case basis.
This is the guidance that the Equality and Human Rights Commission (EHRC) has been issuing to companies across the UK, in respect of questions arising from how to adequately server transgender individuals.
This is important to note, because what actually happened has far bigger reachings than simply “oh go away”. Sinnott tried to bring a Judicial Review to have this guidance ruled unlawful. If the whole process had been ruled this way, it would have been devastating for trans rights, probably involving years of litigation to get it reversed.
Nice try, but no JR.
Instead, what happened was that Sinnott’s “Authentic Equity Alliance” tried to put forward flimsy and poor conceived rationales for why the Equality Act “actually says that trans women can be blanket excluded” (not actual quote). The process in question was not actually a Judicial Review, but rather a “permission” hearing.
It’s analogous to an arraignment in a trial: in that case, basic evidence is presented to a judge who rules whether there is sufficient evidence to proceed with a full trial. In a permission hearing, evidence is presented to a judge who determines if there is sufficient cause to proceed to an actual Judicial Review.
What happened was that the Judge deliberated on the presented evidence, and made the following three important statements:
“The claimant’s interpretation of the Equality Act is wrong in law”
“No grounds to show that the guidance has placed women and girls at a disadvantage”
“Claimant’s argument is an obvious absurdity”
On the basis of these three statements, the judge denied permission to proceed to a Judicial Review. The reason the Gender Criticals are panicking over this, is that it doesn’t just say “No, were not interested in this”, but rather it puts the weight of a ruling judge behind what trans people in the UK have always known: we have right of access on the basis of self-id.
Unwittingly, Sinnott has does the transgender community a gigantic favour: there is no longer any possible ambiguity; where trans people were mindful that the Equality Act could be misread a certain way (for exmaple, ‘gender reassignment’ vs ‘gender identity’) by transphobic cretins, there is now bona fide legal precedent that says “no, that’s not right”.
And moreover, it has not been dismissed fleetingly the way it was in the infamous Keira Bell case; the ruling being along fluffy lines of “well, looks like this is a bit dodgy, so…”
Instead, this is a defiant “You’re being ridiculous. The law doesn’t anything CLOSE to what you’re implying.”
The middle of the 3 statements is also a massive win. It’s put legal weight to the statement that the “genuine concerns” that Gender Criticals are always touting don’t actually present any tangible matter; it’s just transphobes spouting out whatever they can that sounds legitimate and hoping something will stick.
Lastly, because this was a permission hearing and not an actual Judicial Review, it can’t actually be appealed; there’s nothing to appeal. The judge has said the current status stands, and the challenges brought to it have no standing whatsoever.
A new process could be started, but if it presented the same evidence, then the outcome would be the same; citing the legal precedent. Any new procedure would have to show new evidence for consideration. And since Sinnott and her cronies poured every gender critical argument they could into it, that doesn’t leave much scope for trying to transphobe up the law.
Next stop, GRA reform?
And here’s the nub. Not only has a judge ruled that the arguments put forth by Gender Criticals are so absurd as to not even warrant further consideration, especially the idea that the UK doesn’t already have self-id for access (it does) and the idea that such provision is harmful (it isn’t).
I imagine the Women & Equalities Commission (with the possible exception of the Wrong Dishonourable Liz Truss MP) will have paid attention to this. So far in the GRA reform enquiry, the same pattern of “we think this” “got evidence?” “not really” has been emerging from the gender critical camp. While not the giant “well that wraps that up” moment we’d all like, their arguments certainly haven’t been persuasive now that the W&EC have started to listen.
This result then will have been a big swaying point. If nothing the Gender Criticals can proffer makes a good argument, then W&EC are searching for a reason to dismiss. If a judge says “the arguments to dismiss are an absurdity” (not a quote) then this doesn’t leave the W&EC much option but to recommend the reforms.
Conclusion
Gender Criticals suffered a massive blow this week. More than they’re letting on, and perhaps more than most people realise. Trans people across the UK celebrated this result, and rightly so.
In a 6 months of trans youth being denied the recognised safe and effective treatments they need, Maya Forstater almost having transphobia classified as a protected religion, and the swathe of trans-hate bills flooding the United States, this result of cementing the rights of trans people is most welcome.
As for the Gender Criticals? I hear sad violin music can be purchased on the cheap these days.
