Supreme Court Ruling on Trans Rights in Equality Act

[IvanV]

But perhaps I've missed something.

I think you read Goodwin much more carefully than me, I just read a brief summary.

[Grumble]

I might be over-reaching here, but it seems to me theres sometimes a different prejudice at work here, although I dont have a name for it. Thinking about Casta Semanya, and those boxers people got excited about, people who are cis women but not conventionally feminine seem to get some hatred.

You're making a big assumption here that isn't correct.

What assumption? Casta Semenya was assigned female at birth and identifies as a woman, which is the definition of cis woman.

Don’t think I got an answer to this. What assumption?

[Tristan]

That Semenya is female.

[Martin_B]

That Semenya is female.

You say that Semanya isn't female (that Imrael's assumption that she is female isn't correct).

But she's undergone a highly controversial sex verification test, in 2009, and was cleared to compete again in 2010. She's been confirmed as female, with female genitalia.

She has a condition known as 5α-Reductase 2 deficiency, which means that she has XY chromosomes, and produces natural high levels of testosterone.
Since the ruling in 2018 she's been taking drugs to suppress her natural hormone levels which have left her "constantly sick and with severe abdominal pains". Unsurprisingly, she hasn't successfully competed since she's been forced to take these drugs.

But having XY chromosomes and a developmental sex disorder doesn't mean that she's trans, which is what's being discussed here. She identifies as a female and was assigned female at birth, so she is, by definition, a cis woman.

[Tristan]

Semenya is intersex with a condition that affects those with XY chromosomes (which males have) and internal testicles, producing testosterone in the male range.

46,XY 5-ARD is one of those DSDSs where the sex is more ambiguous and so closer to what you could call truly intersex. The majority of people with DSDs are much less ambiguously of one or the other sex, although with some form of variation from the norm for that sex.

How Semenya identifies is kind of irrelevant. That the intersex condition was missed by doctors at birth doesn’t mean she’s actually female (mistakes happen).

I’m not claiming Semenya is trans in the way it’s commonly understood, but nor is she cis female (Imrael’s claim).

You’re right that we’re discussing issues affecting trans people here, not intersex ones, and I’m well aware that they are in not way the same thing, but I’m not the one who brought up Semenya as an attempted gotcha.

Given they are not the same thing and it’s likely the vast majority of trans people are not intersex, people should probably stop hand waving at “yeah but what about intersex?” when trans issue come up. The vast majority are unambiguously of one sex but want to identify as and be seen as the other. Intersex has no relevance there.

[Tessa K]

@Tristan Still avoiding our questions, I see

[Tristan]

@Tristan Still avoiding our questions, I see

I literally just answered Grumble’s question.

[Tessa K]

@Tristan Still avoiding our questions, I see

I literally just answered Grumble’s question.

But not mine

[Tristan]

@Tristan Still avoiding our questions, I see

I literally just answered Grumble’s question.

But not mine

Sorry, am I meant to respond to every question here regardles of whether it's directed at me or not?

I presume you're asking about the "what about cis men pretending to be trans men to get into women's toilets?" question (my paraphrase). Well, there's nothing stopping cis men going into women's toilets today. Under the idea of self-ID it would be trivially easy for them to so nothing really changes there. But believe it or not, this Supreme Court Ruling wasn't specifically about toilets. If you look at the judgement it's actually a lot longer than just "yeah, trans people should use different bogs to the ones they want to". It actually goes to multiple pages!

I'm sure if someone had pointed out the issue of cis men pretending to be trans men to go to the women's toilets the Supreme Court would have just said: "bugger me, this is hard isn't it? sod this. case dismissed, let's go to the pub instead"

Personally I think the solution to this should be along the lines of having women's toilets specifically for women (as defined in the act) and then an "open" toilet for anyone alongside a 3rd space for transgender and non-binary gender people who would prefer to use that.

[Grumble]

Semenya is intersex with a condition that affects those with XY chromosomes (which males have) and internal testicles, producing testosterone in the male range.

46,XY 5-ARD is one of those DSDSs where the sex is more ambiguous and so closer to what you could call truly intersex. The majority of people with DSDs are much less ambiguously of one or the other sex, although with some form of variation from the norm for that sex.

How Semenya identifies is kind of irrelevant. That the intersex condition was missed by doctors at birth doesn’t mean she’s actually female (mistakes happen).

I’m not claiming Semenya is trans in the way it’s commonly understood, but nor is she cis female (Imrael’s claim).

You’re right that we’re discussing issues affecting trans people here, not intersex ones, and I’m well aware that they are in not way the same thing, but I’m not the one who brought up Semenya as an attempted gotcha.

Given they are not the same thing and it’s likely the vast majority of trans people are not intersex, people should probably stop hand waving at “yeah but what about intersex?” when trans issue come up. The vast majority are unambiguously of one sex but want to identify as and be seen as the other. Intersex has no relevance there.

Assigned X At Birth inherently contains the possibility that you might not have all the features (internal or external) that are present in 99% of the population. There is ambiguity in the word “assigned”. It forms part of the definition of cis- and therefore the definition of one’s sex contains an ambiguity. Doesn’t mean she isn’t female.

[IvanV]

Semenya is intersex with a condition that affects those with XY chromosomes (which males have) and internal testicles, producing testosterone in the male range.

46,XY 5-ARD is one of those DSDSs where the sex is more ambiguous and so closer to what you could call truly intersex. The majority of people with DSDs are much less ambiguously of one or the other sex, although with some form of variation from the norm for that sex.

How Semenya identifies is kind of irrelevant. That the intersex condition was missed by doctors at birth doesn’t mean she’s actually female (mistakes happen).

I’m not claiming Semenya is trans in the way it’s commonly understood, but nor is she cis female (Imrael’s claim).

You’re right that we’re discussing issues affecting trans people here, not intersex ones, and I’m well aware that they are in not way the same thing, but I’m not the one who brought up Semenya as an attempted gotcha.

Given they are not the same thing and it’s likely the vast majority of trans people are not intersex, people should probably stop hand waving at “yeah but what about intersex?” when trans issue come up. The vast majority are unambiguously of one sex but want to identify as and be seen as the other. Intersex has no relevance there.

Assigned X At Birth inherently contains the possibility that you might not have all the features (internal or external) that are present in 99% of the population. There is ambiguity in the word “assigned”. It forms part of the definition of cis- and therefore the definition of one’s sex contains an ambiguity. Doesn’t mean she isn’t female.

The Equality Act is drafted on the basis that everyone is either male or female, and that matters for all purposes relevant to the Equality Act. The Supreme Court says that means on the basis of biological sex. I brought up intersex conditions, because it illustrates that there are some people whose biological sex is uncertain. I brought up Caster Semenya first, because she is a well known person with an intersex condition, and who can be classified differently according to which biological criterion you use. If you look at her genitalia, (albeit not thoroughly as she has internal testicles), she's a woman. But if you look at her chromosomes, she's a man. So "biology" isn't very helpful as a clear classification system that puts everyone into two boxes. Probably knowing that, but failing to mention it, the Supreme Court said, "biology" means "what they were assigned at birth". So actually "biology" isn't a very good name for that criterion. And assignments at birth can sometimes be in error, or at least arguable. The reality of biology demonstrates that the idea of classifying people into two categories doesn't work, as there is a grey area. As Tristan says, there are other DSDs, albeit rare ones, where even a cursory examination at birth fails to give you an answer.

So although the controversy is mainly about trans, the law has to work for everyone, and it has to work, and the intersex demonstrate that it doesn't do either of those things.

Caster Semenya also demonstrates the fallacy of the Supreme Court's position that someone should be of the same sex for all purposes. For most purposes CS is legally accepted as a woman, and by the Supreme Court's criterion she is. But she isn't straightforwardly accepted as a woman for sporting purposes, she has to take testosterone reducers. That is again about the intersex. But again this law has to work and it has to work for everyone, and this demonstrates that same sex for all purposes is an aspect of this ruling that doesn't work.

Another problem with the Supreme Court's criterion is that it is "at birth" and unchangeable. Again Caster Semenya is useful as part of an illustration of what is wrong about that, and now by clearer comparison with transsexuals. Caster Semenya was classified as a woman at birth, not by thorough biological examination, because a cursory examination of her genitalia classified her as a woman. She was also happy with that - the great majority of intersex people are, though a few aren't.

But if the reality of the Supreme Court's definition of sex is that it arises from a cursory examination of genitalia, then I think that demonstrates that "at birth" is wrong. Because genitalia can be surgically adjusted. And I think most ordinary people are more interested in what genitalia you have now, and not what you used to have, or what is written on your birth certificate. Especially for issues like going into the loo. So if you have your genitalia surgically modified, it would make sense to reclassify you, at least for those purposes. But I have made that assumption again, and I have invited comment on that assumption, and I didn't get any reaction.

[Tristan]

deleted post given Ivan's follow-up

[Tristan]

Semenya is intersex with a condition that affects those with XY chromosomes (which males have) and internal testicles, producing testosterone in the male range.

46,XY 5-ARD is one of those DSDSs where the sex is more ambiguous and so closer to what you could call truly intersex. The majority of people with DSDs are much less ambiguously of one or the other sex, although with some form of variation from the norm for that sex.

How Semenya identifies is kind of irrelevant. That the intersex condition was missed by doctors at birth doesn’t mean she’s actually female (mistakes happen).

I’m not claiming Semenya is trans in the way it’s commonly understood, but nor is she cis female (Imrael’s claim).

You’re right that we’re discussing issues affecting trans people here, not intersex ones, and I’m well aware that they are in not way the same thing, but I’m not the one who brought up Semenya as an attempted gotcha.

Given they are not the same thing and it’s likely the vast majority of trans people are not intersex, people should probably stop hand waving at “yeah but what about intersex?” when trans issue come up. The vast majority are unambiguously of one sex but want to identify as and be seen as the other. Intersex has no relevance there.

Assigned X At Birth inherently contains the possibility that you might not have all the features (internal or external) that are present in 99% of the population. There is ambiguity in the word “assigned”. It forms part of the definition of cis- and therefore the definition of one’s sex contains an ambiguity. Doesn’t mean she isn’t female.

The Equality Act is drafted on the basis that everyone is either male or female, and that matters for all purposes relevant to the Equality Act. The Supreme Court says that means on the basis of biological sex. I brought up intersex conditions, because it illustrates that there are some people whose biological sex is uncertain. I brought up Caster Semenya first, because she is a well known person with an intersex condition, and who can be classified differently according to which biological criterion you use. If you look at her genitalia, (albeit not thoroughly as she has internal testicles), she's a woman. But if you look at her chromosomes, she's a man. So "biology" isn't very helpful as a clear classification system that puts everyone into two boxes. Probably knowing that, but failing to mention it, the Supreme Court said, "biology" means "what they were assigned at birth". So actually "biology" isn't a very good name for that criterion. And assignments at birth can sometimes be in error, or at least arguable. The reality of biology demonstrates that the idea of classifying people into two categories doesn't work, as there is a grey area. As Tristan says, there are other DSDs, albeit rare ones, where even a cursory examination at birth fails to give you an answer.

So although the controversy is mainly about trans, the law has to work for everyone, and it has to work, and the intersex demonstrate that it doesn't do either of those things.

Caster Semenya also demonstrates the fallacy of the Supreme Court's position that someone should be of the same sex for all purposes. For most purposes CS is legally accepted as a woman, and by the Supreme Court's criterion she is. But she isn't straightforwardly accepted as a woman for sporting purposes, she has to take testosterone reducers. That is again about the intersex. But again this law has to work and it has to work for everyone, and this demonstrates that same sex for all purposes is an aspect of this ruling that doesn't work.

Another problem with the Supreme Court's criterion is that it is "at birth" and unchangeable. Again Caster Semenya is useful as part of an illustration of what is wrong about that, and now by clearer comparison with transsexuals. Caster Semenya was classified as a woman at birth, not by thorough biological examination, because a cursory examination of her genitalia classified her as a woman. She was also happy with that - the great majority of intersex people are, though a few aren't.

But if the reality of the Supreme Court's definition of sex is that it arises from a cursory examination of genitalia, then I think that demonstrates that "at birth" is wrong. Because genitalia can be surgically adjusted. And I think most ordinary people are more interested in what genitalia you have now, and not what you used to have, or what is written on your birth certificate. Especially for issues like going into the loo. So if you have your genitalia surgically modified, it would make sense to reclassify you, at least for those purposes. But I have made that assumption again, and I have invited comment on that assumption, and I didn't get any reaction.

The EA definition probably needs updating to take into account intersex conditions, though again DSD's apply to a particular sex, with some more closely aligned to the norm for that sex than others (Semenya's is an example where the condition strays further from the norm).

But given those DSD conditions that are closer to what we'd consider true intersex conditions are so rare I don't think it's the gotcha many think it is. It is still clear that the drafters of the EA intended "woman" to be A biological definition, not a legal one.

[Tessa K]

I literally just answered Grumble’s question.

But not mine

Sorry, am I meant to respond to every question here regardles of whether it's directed at me or not?

I presume you're asking about the "what about cis men pretending to be trans men to get into women's toilets?" question (my paraphrase). Well, there's nothing stopping cis men going into women's toilets today. Under the idea of self-ID it would be trivially easy for them to so nothing really changes there. But believe it or not, this Supreme Court Ruling wasn't specifically about toilets. If you look at the judgement it's actually a lot longer than just "yeah, trans people should use different bogs to the ones they want to". It actually goes to multiple pages!

I'm sure if someone had pointed out the issue of cis men pretending to be trans men to go to the women's toilets the Supreme Court would have just said: "bugger me, this is hard isn't it? sod this. case dismissed, let's go to the pub instead"

Personally I think the solution to this should be along the lines of having women's toilets specifically for women (as defined in the act) and then an "open" toilet for anyone alongside a 3rd space for transgender and non-binary gender people who would prefer to use that.

How is that a workable solution? Most venues, shops, workplaces etc don't have room for three sets of toilets or changing rooms

[Grumble]

Tristan, I wish you would stop using the word “gotcha” as if we are discussing hypothetical cases and in bad faith. The edge cases illuminate problems with laws and are precisely the cases that need to be discussed to resolve issues.

[dyqik]

Tristan, I wish you would stop using the word “gotcha” as if we are discussing hypothetical cases and in bad faith. The edge cases illuminate problems with laws and are precisely the cases that need to be discussed to resolve issues.

And each of these "gotchas" are a collection of real people, who would be excluded from society by proposals Tristan is making. Real people, with feelings, families, and a right to participate fully in society without being labeled, targeted, or forced to be uncomfortable by bigots.

[IvanV]

But given those DSD conditions that are closer to what we'd consider true intersex conditions are so rare I don't think it's the gotcha many think it is. It is still clear that the drafters of the EA intended "woman" to be A biological definition, not a legal one.

By "gotcha", I think you mean "demonstration that the Supreme Court's interpretation doesn't work".

The Supreme court found it clear that the drafters of the EA had that intention. But many people are suggesting that it isn't as clear as the Supreme Court found it. I haven't looked carefully at the issues. But to me it seems a bit funny in view of the intention of responding to the ECHR case and the introduction of Gender Recognition Certificates and changing birth certificates. And the fact that almost no one read it like that until the Supreme Court came along and said so. I think that this is more a political reaction to how controversial and unworkable the readings that various authorities were making of it. For the Supreme Court in the UK is not thoroughly unpolitical, even if it is a lot less political than SCUSA.

Also, anyone who takes even a cursory look at biological definitions would realise they don't work. The SC made absolutely no discussion of that, doubtless realising what a minefield that is. So they defined "biological" as "what is your sex assigned at birth," which is quite clearly a legal definition, not a biological one.

And then there are people who have had gender reassignment surgery. That seems to me to be the important class people that the Supreme Court's interpretation of the EA really doesn't work for. So far I seem to have had little engagement on this point. I say again.

[IvanV]

Personally I think the solution to this should be along the lines of having women's toilets specifically for women (as defined in the act) and then an "open" toilet for anyone alongside a 3rd space for transgender and non-binary gender people who would prefer to use that.

How is that a workable solution? Most venues, shops, workplaces etc don't have room for three sets of toilets or changing rooms

Some places are so small they only have one toilet, but that doesn't seem to matter. If it is an individual toilet, it doesn't need to be sex specified. Though I am aware of the unfortunate tendency of some men to stand up and pee all over the place, which leads some women to covet their separate facilities. Well we more careful men don't like it either. I wish we would adopt the practice, widespread in the Netherlands at least, of having signs in toilets, "please sit down to pee".

The issue is really with places that have shared toilets. And there is often space in such places to have a separate toilet there. And indeed many of those have already introduced an additional, gender neutral, disabled toilet. Though some are locked with keys to prevent non-disabled people from getting in. I am aware from earlier discussions with the disabled here that they would prefer not to have to share those facilities more widely. But probably something has to give here, and that looks like the easiest one.

What I think this will do is push places that have small, shared toilets, say that take only 2 people at a time, to replace them with individual, gender neutral toilets. And I think that would be a good thing in general.

[noggins]

Which toilet will this poor lass have to use?

https://www.theguardian.com/uk-news/202 ... ion-office

[Tristan]

But given those DSD conditions that are closer to what we'd consider true intersex conditions are so rare I don't think it's the gotcha many think it is. It is still clear that the drafters of the EA intended "woman" to be A biological definition, not a legal one.

By "gotcha", I think you mean "demonstration that the Supreme Court's interpretation doesn't work".

....

And then there are people who have had gender reassignment surgery. That seems to me to be the important class people that the Supreme Court's interpretation of the EA really doesn't work for. So far I seem to have had little engagement on this point. I say again.

The reason I use the word "gotcha" is that many people will use the existence of DSDs as a way of handwaving away the idea that biological sex is real. To say that actually it's all very complicated really and well you see there's no such thing as sex and that actually therefore anyone who says they're a woman actually is one.

Why does surgery have any impact on this? Even if all trans people had surgery (which is far from the case) there would still be an important distinction such that the need to be able to define sex as biological sex (ie, sex as at birth) can still be needed.

[Tristan]

Which toilet will this poor lass have to use?

https://www.theguardian.com/uk-news/202 ... ion-office

This is an administrative error that should 100% be fixed. It's absurd that it hasn't been or can't be. I don't see what bearing it has on this conversation.

[Stephanie]

But given those DSD conditions that are closer to what we'd consider true intersex conditions are so rare I don't think it's the gotcha many think it is. It is still clear that the drafters of the EA intended "woman" to be A biological definition, not a legal one.

By "gotcha", I think you mean "demonstration that the Supreme Court's interpretation doesn't work".

....

And then there are people who have had gender reassignment surgery. That seems to me to be the important class people that the Supreme Court's interpretation of the EA really doesn't work for. So far I seem to have had little engagement on this point. I say again.

The reason I use the word "gotcha" is that many people will use the existence of DSDs as a way of handwaving away the idea that biological sex is real. To say that actually it's all very complicated really and well you see there's no such thing as sex and that actually therefore anyone who says they're a woman actually is one.

Why does surgery have any impact on this? Even if all trans people had surgery (which is far from the case) there would still be an important distinction such that the need to be able to define sex as biological sex (ie, sex as at birth) can still be needed.

"Many people" aren't the people currently posting though.

[Grumble]

But given those DSD conditions that are closer to what we'd consider true intersex conditions are so rare I don't think it's the gotcha many think it is. It is still clear that the drafters of the EA intended "woman" to be A biological definition, not a legal one.

By "gotcha", I think you mean "demonstration that the Supreme Court's interpretation doesn't work".

....

And then there are people who have had gender reassignment surgery. That seems to me to be the important class people that the Supreme Court's interpretation of the EA really doesn't work for. So far I seem to have had little engagement on this point. I say again.

The reason I use the word "gotcha" is that many people will use the existence of DSDs as a way of handwaving away the idea that biological sex is real. To say that actually it's all very complicated really and well you see there's no such thing as sex and that actually therefore anyone who says they're a woman actually is one.

But you seem to be arguing almost the opposite, which is that regardless of being AFAB and identifying as female, and therefore meeting the criteria to be cis-female, that being intersex means that someone can’t be a woman. I don’t see anyone arguing that biological sex isn’t real, I think that’s a strawman argument, rather that biological sex is messy with fuzzy boundaries.

[Tristan]

By "gotcha", I think you mean "demonstration that the Supreme Court's interpretation doesn't work".

....

And then there are people who have had gender reassignment surgery. That seems to me to be the important class people that the Supreme Court's interpretation of the EA really doesn't work for. So far I seem to have had little engagement on this point. I say again.

The reason I use the word "gotcha" is that many people will use the existence of DSDs as a way of handwaving away the idea that biological sex is real. To say that actually it's all very complicated really and well you see there's no such thing as sex and that actually therefore anyone who says they're a woman actually is one.

But you seem to be arguing almost the opposite, which is that regardless of being AFAB and identifying as female, and therefore meeting the criteria to be cis-female, that being intersex means that someone can’t be a woman.

I'm not saying being intersex means someone can't be a woman. There are many DSDs that affect females. Someone having that particular DSD though, 46, XY 5-ARD means they are not female. It's likely one of the DSD's that harder to spot early on, hence mistakenly assigning them as female. As we saw in what Noggins posted, mistakes happen.

ALso, I don't think "assigning" is the right word for this. It should be sex observed at birth. Assign almost implies an element of arbitrariness, as if someone is deciding what sex someone is independently of an external reality.

[IvanV]

ALso, I don't think "assigning" is the right word for this. It should be sex observed at birth. Assign almost implies an element of arbitrariness, as if someone is deciding what sex someone is independently of an external reality.

I think "assigning" is an accurate description of what is happening. Someone, probably not an expert, is taking a cursory look at the baby's genitalia, and writing what they thought they see.

I read from what you say that you don't think it is what should be happening. But that's a different argument.