The supreme court case that redefined ‘Sex’
On 16 April, the UK Supreme Court handed down a very consequential judgment related to equalities law, in the case of For Women Scotland v The Scottish Ministers. What was originally at stake in this case was whether trans women should count as women when determining quotas for non-executive positions on company boards, but it rapidly became a broader question of who should count as a woman for the purposes of the protected characteristic of ‘sex’ under the Equality Act 2010. The Supreme Court held that for these purposes, a trans woman, even one who holds a Gender Recognition Certificate, cannot be defined as a woman.
The instant media furore over this decision was a hallmark of the prominence to which trans issues have ascended in public life in the UK. Derided as predators and instigators of social contagions, pathologised by the medical and legal spheres, trans people have been demonised repeatedly by politicians and media commentators alike. Trans people are a tiny minority of the UK population. How has it come to this?
I argue that trans people have become the victims of a moral panic. A moral panic, as Cohen (2011) tells us, occurs when a group of people are designated ‘folk devils’: ‘visible reminders of what we should not be’. Folk devils are stigmatised – they become an Other, a ‘them’ to stand against the ‘us’ of polite society. Trans people are an ideal target for those who wish to stir up a moral panic: They are few in number with very little power to their societal voice, they are marked with sexual difference, and they are by their nature non-conforming to the established rules of social order.
Echoes of the 1980s: How anti-gay moral panic mirrors today’s anti-trans sentiment
This is all very recognisable to those who are familiar with the queer history of the UK. In the 1980s, a rise in the number of gay people appearing in public life coincided with the news coverage of the AIDS epidemic. This increase in visibility along with the fearmongering around AIDS and its transmissibility led to a rise in anti-gay sentiment, with one 1987 national survey finding that 75 per cent of people considered homosexuality to be ‘always or mostly wrong’. The British media flared up with hostility over Jenny Lives With Eric and Martin, a children’s book about a girl with gay parents, because of fears about its ‘sexualised images’.
As Tom Robinson sang in the satirical Sing if You’re Glad to Be Gay in 1978,
Read how disgusting we are in the press
The Telegraph, People and Sunday Express
Molesters of children, corruptors of youth
It’s there in the paper, it must be the truth.
The growing social disquiet around homosexuality led Margaret Thatcher’s government to introduce Section 28 of the Local Government Act 1988. Section 28 contained the following language:
(1) A local authority shall not –
- intentionally promote homosexuality or publish material with the intention of promoting homosexuality;
- promote the teaching in any maintained school of the acceptability of homosexuality as a pretended family relationship.
Promoting homosexuality came in many forms, from the teaching of queer relationships as a way of family life in relationship and sexuality education, to something as simple as a queer teacher mentioning their partner at school. Queer people were stigmatised as deviant, different, Other. It was said to be wrong for them to be allowed around children or to ‘influence’ children into believing that it was okay to be queer.
The rise of ‘gender critical’ influence – and the silencing of trans voices
Fast forward just over 30 years, and all one has to do is open a British newspaper or make a search on Twitter/X, and the same things are being said about trans people. Anti-trans organisations, who refer to themselves as ‘gender critical’, are cited every day in media outlets across the political spectrum. Most of these organisations have only emerged in the past few years, in the context of the moral panic. In the Supreme Court case mentioned above, only one pro-trans organisation, Amnesty International, was allowed to be an intervener and submit evidence, while several anti-trans organisations were. In the end, the anti-trans organisations, claiming to speak for all cisgender women and lesbians, had far more influence on the Court’s final decision.
In fact, it is wrong to say that all cis women, and cis lesbians in particular, are not trans-inclusive, when polling says otherwise. But the influence of these organisations, birthed within the delirium of a moral panic and focused entirely on limiting or removing the participation in public life of a vulnerable minority, is sky-high. Similar to anti-gay advocates in the 1980s, they have an outsized impact on the legal and political life of the country. It is up to everyone else to give a voice to trans inclusion and to counter this destructive current before it can further curtail the public and private lives of trans people.
Sandra Duffy Golden is Lecturer in Law at the University of Bristol Law School and Co-Chair of the University of Bristol LGBTQ+ Staff Network.
Bristol University Press/Policy Press newsletter subscribers receive a 25% discount – sign up here.
Follow Transforming Society so we can let you know when new articles publish.
The views and opinions expressed on this blog site are solely those of the original blog post authors and other contributors. These views and opinions do not necessarily represent those of the Policy Press and/or any/all contributors to this site.
Image credit: Carl Tronders via Unsplash