Legalities of excluding trans women from women only spaces

by Julian Norman // 22 May 2012, 23:36

After Laura's piece on the F-Word blog
<http://www.thefword.org.uk/blog/2012/05/theres_nothing> , commenters
suggested that excluding trans women from women-only space is illegal.
Unfortunately, the laws surrounding exclusion of trans* people from
women only spaces are far from clear. The Equalities Act 2010
<http://www.legislation.gov.uk/ukpga/2010/15/contents> was not a
particularly progressive piece of legislation (it carefully excludes
some immigrants from disability rights, for example). Hidden away in
Section 28* of Schedule 3
<http://www.legislation.gov.uk/ukpga/2010/15/schedule/3> to the Act is
a provision that gender reassignment discrimination is acceptable in
the provision of single-sex services, "if the conduct in question is a
proportionate means of achieving a legitimate aim."

In non-legal terms, that means that it is permissible to have cis-only
space if there's a good reason for justification. The example given in
the accompanying notes
<http://www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpgaen_20100015_en.pdf>
is

    "A group counselling session is provided for female victims of
sexual assault. The organisers do not allow transsexual people to
attend as they judge that the clients who attend the group session are
unlikely to do so if a male-to-female transsexual person was also
there. This would be lawful."

However, and thanks to Sarah Brown for pointing me at this weighty
tome <http://www.equalityhumanrights.com/uploaded_files/EqualityAct/service...>
, the Code of Practice also says that

    "Service providers should be aware that where a transsexual person
is visually and for all practical purposes indistinguishable from a
non-transsexual person of that gender, they should normally be treated
according to their acquired gender, unless there are strong reasons to
the contrary.

    As stated at the beginning of this chapter, any exception to the
prohibition of discrimination must be applied as restrictively as
possible and the denial of a service to a transsexual person should
only occur in exceptional circumstances."

What are these exceptional circumstances? Who knows; we're not told,
other than that it would include a group counselling session for cis
female victims of sexual assault.

Would it cover the Rad Fem 2012 conference? It might do.
Cis-women-only space is not inherently unlawful if there is a
"legitimate aim," and the notes suggest that catering to a target
audience who would be made uncomfortable by the presence of trans
women would, astonishingly, be a legitimate aim. Generally, safe
spaces are based on institutionalised oppression. Yes, I said at the
beginning it wasn't progressive.

It might not, of course. On a more robust reading, it could be argued
that there is no legitimate aim and that a blanket policy would run
counter to the 'exceptional circumstances' requirement. But the
trouble with law is that these wrinkles aren't ironed out until it is
tested in court, and so far this hasn't been tested.

So that's the law; make of it what we will. There are some who would
say it makes sufficient provision. I'm rather in favour of a new Scrap
Section 28 campaign, myself.

But leaving the law aside, let's look at the incredibly anti-feminist
practicalities. The Code of Practice essentially confirms that if you
can't tell someone is trans or not, then they shouldn't be the subject
of discrimination - which means that trans women who "pass," or who
give no visual clues to their medical history, are entitled to more
favourable treatment than those who don't.

This in turn means that anybody who is running a cis-only event,
whether legally or not, gets to play Gender Gatekeepers. Given that
chromosomal lab analysis on arrival is impractical, how do they do
that? Well, by look, of course, which means that Jenna Talackova would
walk straight on in to the tea and biscuits while a
gender-non-conforming cis woman might be subjected to a humiliating
interrogation on her gender - by other feminists!" In the context of
an event, it would be unpleasant. In the context of a sexual assault
survivors' group it could be devastating.

Gender policing one another on femininity is the antithesis of what
feminism is about. If I want to be sized up for daintiness and
probability of possessing ovaries, the patriarchy will oblige any day
of the week. In feminist space, I want to be taken for who I am on my
own terms, thanks.

Feminists more than anybody else should know that being a woman is not
about socially constructed gender roles. And it's not about a uterus
or menstruation or even the absence of a Y chromosome, because plenty
of women don't have a uterus, don't menstruate, and some women do have
a Y chromosome (XXY is just one of the many configurations possible.)
If 'woman' can (or should) be defined, it is by subconscious gender,
that part of your id which knows who you are and would still know if
you were a brain in a jar. That can't be policed. Whether or not it
would be desirable, reasonable or legal to try to exclude trans women,
it's not possible. Or at least, not without looking very much like the
same patriarchy that I thought we were overthrowing.

*Yes, the irony struck me too.

http://www.thefword.org.uk/blog/2012/05/legalities_of_e