This week, on an unsurprisingly hefty episode, our long-suffering hosts talk about:
- Our usual visit to the U.S. of A, featuring Florida and fencing.
- A surprisingly sporty segment.
- Several stories from within the NHS, including a new service specification, new GP guidance and plans for a new detransition pathway.
- Wes Streeting at a Unison conference.
- Loser’s corner, featuring Elon Musk’s skill issue.
- And of course, the big news from the UK this episode is the recent Supreme Court judgement that did not go well for trans people, featuring an in-depth interview with Jess O’Thomson.
References:
Action Alley
Petition · Overturn the UK’s New Legal Definition of a Woman – United Kingdom · Change.org (Quick note, the petition says that “this new ruling has not impacted trans men at all” which is untrue as this ruling does affect trans men).
IDAHOBIT march in Belfast – Sat. 17th May, 12:30PM, Writer’s Square
IDAHOBIT march in Cheltenham – Sat. 17th. May
STRIVE protest march in London (More details to come soon) – 14th-16th June
Florida
Title IX
Fencing
It was “God’s will”: Cash Prize Awarded to Anti-Trans Fencer For Forfeiting – Erin in the morning
El Salvador
El Salvador president vows to double size of prison holding US deportees | The Independent
Pool
Trans ban in ladies’ pool events passed after ‘loads of complaints’ from players, sports chief says
Ultimate Pool statement on Twitter
New NHS Spec for Children
NHS swaps gender drugs for ‘holistic’ care – The Times (Archive link)
Cal Horton (they/them): “NHS new service spec for trans children out.” — Bluesky
WPATH, ASIAPATH, EPATH, PATHA, and USPATH Response to NHS England in the United Kingdom (UK)
New GP Guidance
Standing Up for Trans Youth: A Statement from Anne Health
NHSE issues warning to GPs about transgender children shared care prescribing – Pulse Today
Department of Health and Social Care: “A Thread” – X
Support From Your GP – TransActual
Detransition Pathway
https://questions-statements.parliament.uk/written-questions/detail/2025-03-18/39061
Wes Streeting at Unison
Streeting ‘genuinely sorry’ for ‘fear and anxiety’ caused by puberty blocker ban | The Independent
Streeting ‘genuinely sorry’ for ‘fear and anxiety’ caused by puberty blocker ban
Zero tolerance for violence and harassment of NHS staff – GOV.UK
OfS Challenge
OfS free-speech absolutism allows abuse, harassment, and bullying – HEPI
Loser’s Corner
UK Supreme Court
UK Supreme Court Rules That Trans Women Aren’t Women under the Equality Act 2010 – QueerAF
UK Supreme Court rolls back trans rights – Equality Network
For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) – UK Supreme Court
Transcript
Alyx: One moment.
[Belching]Flint: Nice. Nice. That was, that was a good seven out of ten.
Alyx: Oh good, thank you.
Ashleigh: I’d say an eight.
[intro music]Ashleigh: Hello everybody and welcome to What the Trans?!
Alyx: What the Trans?!
Flint: As discordant as these times are.
Alyx: We rise to match the moment.
Flint: Yeah, it’s been a week.
Alyx: It definitely has, hasn’t it. Saying it through gritted teeth. Let’s get the niceties out of the way. How are you two doing?
Flint: I’m here. I’m in the room. Yes, I’ve been doing a good amount of crafting recently, which is good, a fair bit, but I’ve got into colouring. Can I tell you about a silly little jingle that has been living in my head rent free and it absolutely it has been a needed salve in these dark times.
On TikTok, there is a meme called Poisson Le Steve. Who is –
Alyx: Steve the Fish.
Flint: Yes indeed.
[Sound effects, Le Poisson Steve]Ashleigh: Steve the Fish.
Flint: And it’s very cute. And it’s this cute little thing, it has this, cute little thing. And it’s like [sings] Poisson Le Steve, il est très bon vivant, and it’s like I just butchered that French. But it’s basically this little thing. Here’s Steve, and he has arms, and he has legs and he’s cool. We like him, Steve, and it’s everyone, people have been making lots of different versions of it, different arrangements of the song, different animations to it. At this point it is like every other video that is on either my Instagram or my Twitter feed is Poisson Le Steve and it just grants me 5 to 20 seconds to be completely brain dead. And I need it. That’s where I’ve been recently. Yeah, I’ve just been vibing with Poisson Le Steve.
Alyx: So on a similar subject to Poisson Le Steve, I don’t know if you’ve been watching the more recent episodes of last week Tonight with John Oliver, but the most recent episode talked about the fish doorbell. Have you heard about the fish doorbell? OK, so it’s the fish doorbell or Visdeurbel, which sounds like something to do with a gerbil, but it is a little webcam set up in the canal in Utrecht, in the Netherlands.
Because it is currently spawning season for a lot of different kinds of fish, they have put a little, you can press the fish doorbell when you see a fish.
Flint: Yes, I heard about this. I heard about this. It’s the coolest thing in whatever. Oh. Oh, it just sometimes you need to be reminded how silly and goofy humans really, truly are.
Alyx: Ohh yeah wonderful. So right, I’ve just noticed a a description of it online. It’s actually just a short summary from Wikipedia. A fish doorbell is a system that allows fish to pass through a closed sluice gate through crowd sourced input when fish are present.
Ashleigh: Sophisticated system, very advanced technology.
Alyx: Well the way it’s been phrased there makes it sound slightly more elevated than in fact it is, whereas it’s like people watching this kind of green screen and then as soon as they see like a fin or an eye or heaven forbid, a full fish, like, yes, ring that bell! Smash that white button.
Flint: Yeah, when they say crowd sourced, it makes it sound like several hundred people having to sit there repeatedly click to communally get the door to open like it’s a Colosseum or something.” We can get another one through if we try hard enough!”
Alyx: So yeah, that’s the fish doorbell I thought I would brighten your day with.
Ashleigh: Oh, it’s fantastic. Speaking of the spawning season, it’s been really great seeing on the Discord the frogspawn that’s been growing into tadpoles. I even got to release the Director’s Cut, a one-minute clip of those tadpoles. And they’re so adorable.
The best bit of the Discord for What the Trans?! But aside from staring at tadpoles all day yesterday, I finally got the keys to my new flat.
Flint: Hey, congrats. Yes.
Alyx: Oh, so is it a flat or is it a house you’ve got?
Ashleigh: It’s a flat, so it’s a third floor flat in some building. I’ve bought it from my brother because he happened to be moving out, so I was like, what the hell? His place is cheap. I’ll use nepotism to my advantage.
Flint: I mean, yeah.
Ashleigh: So just today, just yesterday I knocked on his door to say hello and handed him a little bit of paper that says eviction notice, get out of my house.
Flint: Wait, what?
Ashleigh: So I walked into my brother’s flat yesterday knowing it was completion day. Uh-huh. And I handed him a bit of paper as a joke to say, it just has the words eviction notice, get out of my house on it.
Flint: Right. OK. For a second my ADHD kicked in and whiteboard wiped the last five seconds. I truly thought you just said yeah, I just turned up and evicted some guy. I was like, wow, the pipeline from homeowner to Evil Landlord is lightning quick, Alyx, you’ve changed.
Alyx: Completion day always sounds so weird to me, you know?
Flint: It sounds real weird. Yeah, it does.
Ashleigh: Right, doesn’t it?
Alyx: As someone who’s never completed on a house sale but has definitely completed a few orgasms.
It just makes me think of one thing more than another.
Ashleigh: Yeah, that’s why I always go for, I got given the keys to my flat, instead.
Alyx: Very wise. I’ve just been trying to think of what I’ve been doing apart from learning about the fish doorbell, and so I was in another podcast. That was good.
Flint: Cheated on us!
Alyx: So, the Neuro Rainbow podcast. Yeah, it was good. Yeah. And I made a point of trying to say, hey, listen to my podcast, several times. I would have left a business card.
Ashleigh: That’s very cool, pretty on topic.
Alyx: But it didn’t seem appropriate given that we were talking over Zoom. By the time you’re listening to this, dear listener, that episode should now be out and I recorded an extra little bit for it today in the light of one of the things that we’re going to be talking about, I’m sure you don’t need me to clarify which, but it was nice to see you all last week for a project that we are being very unspecified about.
Flint: Yeah. It was really good. Very, very cool. Very surreal.
Ashleigh: We got to see some really cool people.
Flint: Yes. So a really cool chat with very amazing people being in a very surreal environment and in such a cool location and I don’t know how much I’m allowed to say about any of it, but we’ve had a very fun time recently working on a super-secret project.
[sound effect]Alyx: More on that once we’re able to give you that. But we’re very much looking forward to the fruits of our labour.
And speaking of the fruits of our labour. Let’s get on with the podcast.
Ashleigh: Yes, straight to Action Alley, as it was [sound effects]
Ashleigh: So as of time of recording over the weekend, there’s been a shit tonne of protests all over the country, and if you’re listening to this episode now, there are still some protests you can go to. So the first one is in Belfast on the 17th of May about IDAHOBIT at Writers Square. We’re going to link that in the description and on the topic of IDAHOBIT on the 17th of May, there’s also one in Cheltenham. After that there’s going to be a protest march in London with STRIVE on the 14th to 16th of June. It’s still very light on details, but we’ll link what we’ve got for now.
Alyx: Indeed, and I like STRIVE because they have an awesome acronym which is Standing for Trans Rights Inclusion and Visibility Everywhere. Yeah, I’m on board.
Flint: Nice, I take that.
Ashleigh: Very good acronym to STRIVE for.
Flint: Can I also ask, what does IDAHOBIT stand for? Because currently I’m just thinking about the Shire.
Alyx: Yeah, right. Ida the Hobbit? No, it’s International Day Against Homophobia, Biphobia and Transphobia.
Ashleigh: I can’t. Oh.
Flint: Yes. OK. Brilliant. Fantastic.
Alyx: And you don’t think the acronym is just a little clunky? Yeah, there’s only one B. There’s not two Bs which would make it very the Shire focused.
Alyx: But if you’re not able to go to a protest, there’s a couple of other things you can do. Specifically, there are a couple of petitions, the ones on the government website, the ones where if it gets 10,000 responses the government has to respond to it, and if it gets 100,000 responses, they have to debate it in the House of Commons. There’s two that we want to highlight here, one of which is to legally enshrine the right of adults to physically transition using NHS services. So basically, saying to introduce a law to legally protect the right of those who are over 18 to transition on the NHS and the other petition is overturn the UK’s new legal definition of a woman, and more on that later, but I’m sure you know this. You know this story, dear listener. I’ll be surprised if you didn’t. And if you don’t, we’re going to tell you all about it in a little while. It’s coming.
Flint: Obviously, we’re going to get in some pretty big news this episode, but if you haven’t already, maybe check for any local protests in your area or any local mutual aid networks in your area as well. Just because we’ve not listed here doesn’t mean it’s not happening. I know that we’ve put up, thanks to Alyx’s wonderful work, a massive list of a lot of protests that have been happening over this coming weekend. Which is just past by the time that this episode will be going out.
Ashleigh: Yeah, just check it out and have lots of fun.
Alyx: And it’s on our website as well, isn’t it, Alyx, because you put it all together onto a website post which we’ll keep updated, if there are some additional protests going on over the coming weeks, which we’re pretty sure there will be.
So yeah, firstly, before we get into the big news from the UK, which, is obviously going to be the bulk of this episode, we are going to just very gently, delicately hop over the pond and see what our comrades in the US have got to deal with this week [sound effects].
Ashleigh: So we can’t spend too long over the pond this week because we’ve got enough stuff at home to deal with as it is. On the 10th of April, a teacher and floored at the Satellite High School was fired and according to the state, she violated state law and the district’s standardised process. But what was this law? Calling a trans kid by the preferred name, without asking their parents. Oh no, an illegal name. Something which a petition calling for her to be reinstated said was a direct blow to personal rights and respect. So far, 11,000 people have signed this petition and we’re going to link that in the description, if you want to sign it.
Flint: Horrifying. Horrifying.
Alyx: I mean, so much of our output now is stories that we can just sit here and cuss and say things like horrifying and terrible and dreadful.
Flint: Isn’t it? Yeah.
Alyx: Just like why did we say we’d do this? Why are we doing this to ourselves?
Flint: I think it’s because, well, honestly, there’s so few of us that that are able to do this. I think it’s why you’ve expanded the team so much over the last year because we’ve all recognised how much more of us it’s going to take to just keep people informed and to try and make sense of the absolute fuckery that’s going on. And speaking of fuckery going on and there is a new joint initiative between the US Department of Justice and the Department of Education in America, the creation of a quote, Special investigations team in order to investigate and enforce Title 9.
Title 9 is a law preventing sex-based discrimination in government or educational settings. The new task force describes itself as having a duty to quote protect female athletes from the pernicious effects of gender ideology in school programmes and activities [sound effects].
Alyx: Like as if as if that’s what female athletes need to be protected from, right? Not like, you know, budget cuts and predatory coaches.
Flint: Yeah, that’s exactly what I was about to say. How does this protect people, when the people that that often commit the most abuse are those who are pretty entrenched in the systems and usually, I’ll go so far as to say pretty much entirely are never trans people because there aren’t enough trans people in sports. Full stop.
Ashleigh: And also, the title Special Investigations Team [sound effects].
Alyx: That just sounds like a branch of CSI, doesn’t it?
Flint: Something that I’ve noticed over the years is usually in America, the closer that something sounds to a section of Star Trek, the worse it’s going to be.
Alyx: Yeah, which is a shame.
Flint: Space Force, SpaceX.
Alyx: Not space double X chromosomes. We’ll see. We’ll see what happens.
Ashleigh: Speaking of trans sports.
Alyx: Indeed. Well, I wanted to forfeit having to talk about this story, but unfortunately, we have to talk about an anti-trans bigot who decided to forfeit their match against a trans athlete that they were lined up to fight. A forfeit that happened to create a massive media storm in America, something which then landed the bigot with a sword $5000 and started Stephanie Turner’s inevitable book and media tour. The forfeit was filmed at a fencing tournament at the University of Maryland and in the filmed moments the forfeit happened. Turner went on to repeatedly misgender her opponent, Red Sullivan, claiming concerns for her safety. However, this is where confusion comes in, as it appears she did not have these concerns when she was perfectly happy to oppose men in mixed tournaments at Swarthmore a week prior. Where she also defeated four other cisgender male opponent. So.
Flint: Fuck’s sake.
Alyx: I will let you draw your own conclusions about that. So fortunately, the sporting body USA fencing has stood behind Red Sullivan, who has now been dragged unwillingly into this media shitstorm for just existing. And defended ejecting the bigot from their competition, stating “It was not related to any personal statement, but was merely the direct result of her decision to decline to fence an eligible opponent, which the International Fencing Federation rules clearly prohibit. USA Fencing is obligated to follow the letter of those rules. And ensure that participants respect the standards set at the international level.” And there’s a really good article in Rolling Stone – My entire life is political, as said by Red Sullivan. So yeah, that’s worth your time, if you can give that a read. We will of course link it in the usual place.
Ashleigh: Flint, you seem to have some thoughts about this.
Flint: Yeah. Well, it was just, it just really got me. It was like forfeiting, but then literally hun, was that not you a week ago, that really, like got me.
Alyx: Yeah, right.
Flint: The fucking audacity of it. Just Jesus. Honestly. It just, it feels like it’s a storyline inT Office or something like Angela gets a bee in her bonnet.
It’s not, though. It’s way more horrifying than that. Do you know what I mean? Just for a second, I was like, oh, that’s so fucking silly. But it’s terribly dangerous. So the final thing that we have to talk about coming out of America is a really big one. It’s not necessarily trans related. However, it’s still really, really important and it’s difficult to ensure that we are getting good information.
We felt it was really important if we are running this segment to focus for a moment on the situation that’s happening in El Salvador. We spoke last episode about the way in which US residents are being disappeared, including some who are citizens with green card. And we are finding out that some people are being sent to a centre containing terrorists. These are people without any criminal convictions. One person who has been sent to El Salvador that we know of is Kilma Abrego Garcia, who was sent to CECOT, the Terrorism Confinement Center, last month, after the Trump administration decided that he was a gang member on no evidence. Another such case is that of Andrea Jose Hernandez Romero, who is a hairdresser. Hernandez was fleeing persecution. He crossed the border in order to attend a pre-organised appointment regarding seeking asylum because of the way in which Venezuela’s authoritarian leader had begun a new crackdown on LGBT people. He has now also been detained and sent to the detainment centre in El Salvador. Now the problem is, is that not only is this happening, but also the relationship between the President of El Salvador and Trump is upsettingly good. Trump has been open about wanting more detainment centres built. He has been found on a hot mic stating that he not only wants more of them built, but that U.S. citizens are next. He did not use such kind words, but that’s what he said. This is on top of the President of El Salvador being very agreeable to this and being very, very willing to do so, and has publicly stated that he’s planning to extend and expand these detainment centres.
So this is well, we all know what this is. This is so far beyond fucked up and this is exactly what we thought was happening when we had to first cover the disappearances. That it was leading to people being detained in some of the worst detention centres that you can be. Treated in the worst ways possible, merely for existing.
Alyx: It’s about fear, isn’t it? Right. They want anybody that could potentially be in the crosshairs to be scared shitless of being picked up by ICE or Homeland Security or whatever, because if they say, well, look, we’ve taken all these innocent people to a foreign prison and we’re going to pretend that we can’t get them back, that we don’t have the power to do that, and the US citizens are next. Don’t even think about standing up to us.
Flint: Absolutely. Now, I do want to make one point. I do believe that the Supreme Court did rule 9-0 against Trump in one of these cases.
Alyx: Yep, they had to bring him back and you’re quite right. It was 9 judges to nothing. They were unanimously agreed that Trump has to do this thing that he’s pretending he can’t do.
Flint: That’s in Kilma Abrego Garcia’s case, which, let’s just also put that into perspective. That is 9 Supreme Court judges, I think a good portion of them at this point were appointed by Trump himself. So you’ve got nine people who, their whole job is to not really totally 100% agree on every single thing, and they’ve all managed to agree on the one thing, regardless of who they were appointed by. Even though a big part of it is who they’re appointed by indicates how they’re going to vote on any given thing. So we can’t say that there’s nothing being noticed or trying to be encouraged about this, but at the same time there has been such a gleeful, wilful obstruction of any legal rules, they just don’t care about the law. They seem to be actively enjoying flouting the fact that the law is not being properly enforced on them, and that’s a concern.
Alyx: You don’t want to say, it’s too much and it’s only going to get worse because that is justifiably described as fear mongering but also, how are we to look at this, what’s been taking place, and not assume that things are going to get worse?
Given that the administration has said you need to build five more of these prisons.
Flint: Well, I think part of the reason, to pull it back to a place where that’s much more relevant to us immediately. We’ve been saying for years: Do not give transphobes an inch because the more that they push, the more that they will get and the more that they will be able to bring in legal rulings that make it hard for us to exist in any way in public life. How many times have we have been considered fear mongers for saying no, they they can and they will do that, it’s already too much and it’s going to get worse and it’s not been listened to. It’s difficult because I think that of course, you never, ever, ever want to fearmonger. You never, ever, ever want to make people be sat there with horrible, upsetting feelings. But where is the balance when you’re dealing with a story like this, that feels very much like a worst-case scenario?
Ashleigh: Yeah, hard to move away from this story, but we’ve got to move on.
Alyx: We have to charge ahead, yes.
Flint: We do, we do.
Alyx: So, bringing it back over to the UK now [shouting sound effects]. And we’re going to do the opposite of what they usually do on the news and have the Sports News first.
Ashleigh: The first one’s quite a quick one. There’s been an announcement that some trans hockey players have launched legal action against England Hockey, against their anti-trans policies and barring them from competing, and we’ll make sure to link that in the description. So yeah, moving on from hockey, we’ve also got another court case, but this time surrounding pool. So, this first one is concerning trans player Harriet Haynes.
Because this week, pool is in the news because the sport has a women’s event with an all-trans final, Harriet Haynes versus Lucy Smith. Haines came away with a win, but of course, inevitably this has upset a bunch of right-wing snowflakes due to the fact that the WEPF allow trans players. The Ultimate Pool Women’s Pro series is played across 8 events throughout the year, and Haines has appeared in court, as part of a lawsuit against EPBF, a different governing body for amateur pool. We’ve been looking at the coverage for the Ultimate Pool event. We’ve seen all sorts, so much cruelty in social media directed at just about every woman seen on the screen, even cis women competing in another event just got called men and the ignorant vitriol brought to sports by transphobes. It’s just ruining, it just harms women’s sport as a whole.
Alyx: It does. It does. And honestly, good luck to Haines both in her court case and her future career.
Flint: Yeah, yeah. Absolutely.
Alyx: Are you into pool?
Flint: Actually, pool I played before darts, but it was literally just in pubs like, one of my mum’s mates. I think he had a name. He was all one of those dudes that would get, a local at a pub and they end up with a name that’s something like a kind of beer, because that’s what they drink. It is that kind of thing. He had a name, something like bitter or lager? I don’t know and, but he taught me and then I – Basically, no. It’s quite fun to play sometimes, but realistically it’s watching it, it’s too quiet and I feel like I’m in a school assembly and I want to watch something where I’m allowed to go “BAA! Fuck Yeah!” That’s me.
Alyx: Yeah, well, I think me as a pool player back when I used to be able to play pool, was never very good at it. Somewhat like Dave “Cinzano Bianco” Lister.
Flint: Of course I know that.
Alyx: Knock the balls around the table for hours on end and never would I lose one of those balls down one of the holes.
Now I have a whole different way of knocking balls around. [sound effects].
Look, I mean, come on. I had to.
Flint: Yeah, yeah, yeah.
Alyx: Them’s the rules. That’s the sport. And now we’re going to move on to the news. [sound effects – booing].
Yeah. So with the next couple of stories and several of these, really, we’ve had to think very carefully about, we don’t want to cause panic. So we want to avoid doing that at all costs. And there has been a lot of worry circulating about, particularly about this next story and about the Supreme Court. But more on that later. So we don’t want to cause panic, but at the same time, we don’t want to undersell the concerns.
Flint: Exactly. Exactly.
Alyx: Let’s just start off with some news that won’t be a surprise to you. The Times sucks. Its recent headline, NHS swaps gender drugs for holistic care, is brutally succinct and kind of says the quiet part out loud because it takes “holistic care” to mean everything except blockers or hormones. Obviously, blockers are out of the question because of the current ban and although HRT is available in theory, in practice no new under eighteens have received HRT from a gender clinic since the 1st of April 2024. Being holistic should mean treating the whole person, but it’s damn clear that’s not what they want to do for as long as the ban is in place and the anti-HRT culture persists, there is no physical care being offered to trans youth. To describe the care as holistic under current circumstances is misleading, slash a euphemism, slash a dog whistle, slash a lie.
But holistic is the word of the moment, and indeed, holistic care is a big feature of the new draft service specifications for CYPs gender services. Recently updated draft versions of the CYP gender services were released, and there’s a bunch of stuff to get angry about in there. And just to clarify, CYP is children and young people, let’s have a list of problems, shall we? It doesn’t normalise trans identity, it focuses on psychological intervention. It holds assumptions that dysphoria is expected to be transient among prepubescent kids. Its evidence base is almost exclusively the Cass report and its derivatives. It recommends a multidisciplinary team be involved with the decision to socially transition. It views social transition as “not a neutral act”. It takes a harsh view on access to hormones outside of the NHS and it advises that careful exploration of gender identity is often required.
Now, these aren’t new problems either. All of those were also issues that you could find in the previous versions from March 2024, which we did talk about at the time. A tonne of problems with the service spec were pointed out by WPATH, and many of the other trans health organisations back in 2022. But their old critique still holds up pretty well now. And it sucks that the input of the trans community seems to matter so little to the people writing these guidelines. There’s a repeated and consistent failure to meaningfully engage with the trans community. The changes we see are typically insubstantial or driven by forces outside of the trans community and our experiences. So what’s actually new?
Ashleigh: Shall we split this up?
Alyx: Yeah. I was about to say let’s section this out. To talk you through this, I’m going to refer you to my glamorous assistant Flint.
Flint: Hello. So, Appendix A. Compared to the version from March 2024, the biggest change is the new appendix A. This section of the service spec is dedicated to an increased focus on holistic care and broadly it’s a restructuring of what was once a bunch of bullet points into 8 new holistic headings. Those are family context, developmental history, physical health needs, mental health, social life, safeguarding, gender development, and sexual development. Although these aren’t meant to be done in any particular order, I cannot help but notice that gender is the seventh one. Without going into too much detail on everything, the focus on developmental history means all patients should be screened for neurodevelopmental conditions such as autism. The physical health aspect is weirdly focused on if patients have anxiety about being in a clinical setting. In looking at mental health, everyone should get a CAMHS style assessment which feels a little redundant as most patients are likely to have reached the service via CAMHS anyway. The gender identity section has plenty of familiar questions, asking what the child and family are already doing about dysphoria, how it impacts daily life, and what the child slash young person wants to do. That should include a discussion of what can be done to help and the associated risks. A notable new addition is a recommendation that the child or young person and their parents or carers should be interviewed both together and separately. This is to establish a timeline of the child’s gender identity and to see where the recollections differ. The guidance suggests that any differences in perception may be a cause of conflict in the family. Hmmm.
Alyx: Carry on.
Flint: Yeah. Well, elsewhere in the document there are a few good, ish, changes scattered about. We spotted two surprisingly OK ones. First of all, the under 18 services will now in exceptional circumstances continue to see patients until the age of 18 and three months should there be delays in transferring to the adult service. The other good thing is that CBT has been removed from the list of treatments offered, though, given the system is primarily just about psychological support and some of what it offers, like psychoeducation, is adjacent to behavioural therapy, I’d be curious as to how that plays out in practice.
Ashleigh: Yeah, and there’s a lot more technical bits as well because most of the other changes to the service spec that we were able to find reflect changes in law and changes elsewhere in the NHS. So, for example, there’s more than one under 18s clinic now. So those clinics are expected to communicate with each other. The new service spec also has to tie in with a whole bunch of other documents that were published since the Cass report, like the new referrals pathway in the new clinical commissioning docs. One notable example of this is that the service spec used to include details on prescribing HRT to under 18s. However, you’re now simply directed to a different document for the relevant clinical commissioning policy. That policy was released at the end of March 2024 and we know from the month after this policy was released, not a single young person has started HRT with a gender clinic and that reminder is all I think I need to say about that. And of course the puberty blocker ban now exists. So the text on unregulated prescriptions has now gained a new statement about the ban and now has a warning, sirens warning triangle, beeping [sound effects], red light, all that terrible stuff.
Alyx: So not great really. I think we could agree it could have gone better. There’s several different stories about the NHS and there are warning triangles attached to all of them, really.
Flint: Yeah, yeah, yeah. This document is 20 pages, so there will even be stuff in here that we’ve likely missed, because there’s a lot of stuff to work through this week and it’s a document out of many.
Ashleigh : I just want to say thank you to our co-writer Sammi for going through it as well.
Flint: Absolutely.
Ashleigh: We’ve recently had a new co-writer, Sammi, and they have been fucking amazing and they’ve had to go through this 20 page spot the difference.
Flint: Yeah, yeah, exactly. Because on top of all of the extra news that we’ve had this week, we’ve also been as you said, busy with projects and stuff and Sammi has been an absolute lifesaver. A lot of Sammi’s work is here this episode as in the last episode. So genuinely, what a legend.
Ashleigh: Fucking legend.
Alyx: So let’s talk about some of the concerns here, right, because, talking about, ohh your story is different from what your parents say and that must indicate there is disharmony in the family. It sounds like that’s going to be something that well, if your stories don’t absolutely precisely match, we’re going to refuse you care.
Flint: Yeah, and also the way that I read it, it came across like it was saying that the point at which your experience of gender you – oh how can I put this, the point at which you come out and your parents wouldn’t necessarily recognise that. The point at which both your parents and your understanding of your gender diverges, that’s going to be the point of conflict. As if transness is caused by trauma, and one of the things that really, really concerns me in this is the universal screening for autism, because it sounds on the surface like something that is going to be good and in another set of circumstances, I would be more encouraged by, because there’s a lot of crossover with neurodivergence and trans people.
I am autistic, I am ADHD. I am also trans as fuck. The thing is, is that within this ecosystem where autism has continually been weaponised in a very degrading and dehumanising way to indicate that it’s like this vulnerability that’s being exploited, and it’s autistic people getting confused and not really knowing themselves and things like that. And it’s considered a developmental lack. That’s a problem for me. I can’t trust them screening for autism and speaking about autism in these circles in such a way, without it making me think that you’re screening for autism so you can then refer someone to the autism services to prevent them, like Ohh go and get this handled first. Knowing that’s going take you easily two years, minimum two years. But that’s just my own speculation. That’s my own personal thoughts and opinions, just from my own experiences.
Alyx: I agree, and I think so much of this to me, reading it as the deeply cynical person that I am, it kind of looks like they’re introducing more roadblocks, more ways of saying Nope.
Flint: Yeah. Yeah, exactly. And I should be saying, or I want to say on top of this, it’s great anytime the access to a diagnosis is made simpler for the most part, it’s just it’s really concerning with all of the context of everything else going on around it. I really want to see diagnosis to be not such a privilege in terms of who can access it and how easy or difficult it is made for people to access it. I’m saying this is someone who was diagnosed very late and had to fight tooth and nail for it. So you know it’s difficult because it’s something that I would in other circumstances be like, yes, I want more people to be able to be assessed quickly. I want people to be able to be diagnosed if that is a thing that is going to help them. If they feel that they, you know, all of that. It’s just, you’re going to use us to delay and defer.
Ashleigh: Yeah, yeah, I think this is definitely unfortunate. There’s even more stuff to go over with regards to the NHS.
Alyx: Yes indeed. So let’s move on, shall we?
Flint: Yes. So next story is still within the realms of the NHS. It’s about the new GP guidance. It’s primarily relating to HRT for under 18s. And the guidance serves a couple of purposes. It informs GPS of the upcoming service spec that we covered in the last segment, and it reminds GPs of the current ban on puberty blockers. But the big thing it does is issue a bunch of warnings about working with unregulated providers of HRT. The justification of this new guidance is recommendation eight of the Cass review which suggests extreme caution in providing HRT to under 18s. “Shared care agreements should be made on an individual basis, assessing the relevant evidence and the needs of the patient.” That fact is still true even within this document. However, it strongly advises GPs that they should not support under 18s accessing HRT via unregulated sources. The guidance calls out by name both Gender GP and Anne Health, cautioning GPs against working with them, though they’re not strictly unregulated. They’re literally just based outside the UK. GPs are advised to decline new shared care agreements with unregulated providers of HRT and where a shared care agreement is already in place, the GPs are advised to take a final set of bloods, inform the providers that the agreement is no longer in place and instructs the provider to test slash monitor the bloods themselves. So, this matter is so serious that it will get another warning triangle. [sound effects] Jesus Fucking Christ. You are leaving children without proper monitoring or testing. That is despicable.
Ashleigh: Hmm. But little instruction or emphasis is given to how a GP could evaluate an agreement as worth continuing, or in what manner the GP should continue to support and care for a patient once an agreement is ceased. It’s important to say that GPs still have the option to continue these agreements and GPs still have a duty of care. Anne Health, which has been singled out by this new guidance, says the approach frames care as risk rather than relief. On the other side, the DHSC has issued a statement on Twitter saying that GPS can still provide trans people with blood testings for other things, but that GPS should continue to provide care and arrange for blood tests and other tests when there are concerns the child or young person is at risk of harm, for example, suspected blood clots.
Alyx: Some have worried what this guidance might mean for adults, but there are no changes at this time. However, it does reveal there are plans to update the adult non-surgical clinical commissioning policy for gender identity services, specifically that to create standards for when someone already on HRT by their own means wants to start getting it via the NHS. Consultations for that proposed policy change are expected to happen this year or next year. When it reaches the public consultation stage, then we can assess the tone of the thing and how restrictive it might be and whether any other changes are being considered. Let’s just hope it’s better than the equivalent spec for under 18s. So, we’re just going to signpost here to some resources from our friends over at Trans Actual. There might be more commentary on this in the future, but for now if you worry if you might be affected by this, there are resources on the Trans Actual website with information about shared care agreements and what your GP’s responsibilities are. And obviously we’ll link that page in the usual place in the show notes. So more NHS fuckery and it’s not over yet. I’m sorry everyone.
Flint: Yeah, we’ve got another one. So yeah, do you want to take us through detransition services?
Ashleigh: Yeah, why not? NHS England has become the process of consulting stakeholders for a new detransition pathway for the NHS. This is part of their work to follow through with Recommendation 25 of the Cass review, NHS England should ensure that there is provision for people considering detransition, recognising that they may not wish to re-engage with the service whose care they were previously under. Cass suggested setting up care pathways for detransition and even went as far as to suggest the commissioning of a new service. I wonder if people wouldn’t want to re-engage with a GIC simply because they are a poor service and for that matter, care pathways related to transition do often feel rather inflexible. At the practical level, the pool of gender specialists in the NHS is quite small and I’m not sure if this separation could be achieved. In any other field, great value is placed on continuity of care. But in the case of someone who’s had an orchiectomy but wants to detransition to a man, may want to take testosterone, creating an official framework for that would be useful, and people who detransition absolutely deserve support. Our concerns are over the fact that this is grounded in the Cass review and its implementation will reflect in the culture of the NHS and in government. Whereas these systems should be designed to cater to the needs of the trans, detrains, or non-binary people who will be on the receiving end of them. Although currently it’s only stakeholders who are consulted and the public consultation is expected down the line, we will express our concerns when it’s available.
Flint: It feels inherently this thing that is being offered that would be and should be quite a good thing, there’s a tinge of a slight threat in there because of how it’s being constructed and offered and the context surrounding how it’s being offered that’s just concerning. And the way in which this government and this NHS era have treated the idea of any changing around of gender, any kind of transition, it gives me pause for thought and doubts surrounding their actual willingness to genuinely support versus weaponise and pathologise.
Alyx: Yeah, agreed. And I find myself thinking about, if it’s a whole new service, how many people is it realistically going to be treating? If they just are focusing on the people who are genuinely detransitioning. It’s going to be like 0.1% of 0.1%. So yeah, I agree. I do think it’s more likely to be weaponised to say, oh, well, if you want that, you’ll have to detransition, which sucks, honestly. And, well, currently stakeholders are being consulted. But a public consultation is expected further down the line. When that comes out, we will express our concerns in that, once it’s available and you may wish to do the same.
Ashleigh: Yeah, I think looking at all this makes me just want to say fuck you to Wes Streeting. And on the subject of which –
Alyx: So, you may have heard this one. It was all over social media the day it happened. This is the story about Wes Streeting at the Unison National Healthcare Service group conference in Liverpool on Wednesday, April 9th. He made his speech where he talked about how there should be a zero tolerance policy within the NHS for people who are physically abusive towards NHS staff. Or at least if you were to look at the news coverage of the conference, you’d come away thinking this was the only noteworthy thing to happen there. But it wasn’t. There were some protesters in the room, too, quite a few of them, in fact, stood at the back, silently holding a banner, saying vote Labour to sell our NHS and a number of placards critical of the Cass review. These were described as anti-privatisation and pro-trans protesters. After his speech, Wes took some questions, one of which was about waiting times for trans people, but it looks like he took a look at trans rights more broadly while answering, during which he talked about his now indefinite ban on puberty blockers.
He said that this decision was quote solely about the clinical advice that he received, and he added, quote I did what I think any health secretary should do when they are confronted with that sort of choice, which is to seek the advice of clinicians and to ask clinical experts and leaders what we should do in that case. I am very conscious that for lots of people, not just in the trans community but across the LGBT community, in fact, across wider society, there is real anxiety about the decision that I took. I would challenge anyone in my shoes to say as a politician that you would overrule clinical advice, especially when it comes to medicines that are challenged on the basis of whether they are safe or not for children. I know people disagree with that decision. I know it’s caused real fear and anxiety in our community and that certainly doesn’t sit easy with me.
Which, you know, it shouldn’t.
He then started talking about the upcoming clinical trial of puberty blockers, claiming that the trial would quote, take the political poison out of what should always be a considered, compassionate and evidence based conversation about how we provide care and support to a vulnerable group of children and young people in our society and trans adults.
Before adding, quote, I totally get why having taken this particular decision so soon, why it’s caused that fear and anxiety and I’m genuinely sorry about that. And I have met many, not just trans organisations, but family and children and young people who strongly disagree with this decision and are fearful as a result of those decisions. And that breaks my heart. It genuinely does. End Quote.
Sorry to belabour the point here, Wes, but once again, good. If you make ghoulish decisions, you should feel ghoulish about it, assuming of course he’s not just saying that to try and assuage criticism.
Finally, we’ve got, quote, what I hope you will see through our actions, not just our words over the course of this Parliament, that this will be a Labour government that cuts waiting times for trans people, that improves access to services for trans people of all ages in our health services, that clamps down on hate crime and attacks against trans people, that introduces new laws and protections, including a ban on conversion therapy and a trans inclusive ban on conversion therapy.
All of which remains to be seen, but is anyone else finding it a bit weird that he made a ban on conversion therapy and a trans inclusive ban on conversion therapy two separate things, that should just be one thing, right?
Flint: Yeah, yeah, it should. And I just got to briefly pull us back to the point about, well, surely, if you were a government minister, you wouldn’t overrule clinical advice. Wow, that’s what you fucking did, my guy. What do you mean? Overwhelmingly clinicians support gender affirming care. You are the one who was overruling so many endocrinologists. So I don’t want to hear. Also, “see through our actions”, we are, dude. We are, Wes, we are seeing through the actions, that’s the whole point. That’s why we are the way that we are right now. Ohh my goodness.
Alyx: Yeah. I agree. And just on the point of a ban on conversion therapy and a trans inclusive ban on conversion therapy, pretty sure they’re not going to do a ban of gender affirming care on the grounds of pretending that it’s conversion therapy, given the way the wind is blowing at the moment. Pretty sure they don’t need to. They’ve got that stitched up already with the Levy review poised to be a rerun of Cass. Obviously that remains to be seen. I’m probably just being deeply cynical. I’ve been doing this for too many years, perhaps, but yeah, your point about, we’re seeing through your actions, actually Wes, and we don’t care for it, that’s a good point well made. Anyway.
Flint: On to the next one.
Ashleigh: More irritating people.
Alyx: Which is not about the health service or the health minister.
Flint: No, but it’s about something just as gruelling. So last episode we talked a bit about the fine issued to the University of Sussex for the wording of its trans and non-binary equality policy statement. Now the University of Sussex has released a pre-action protocol letter.
This is an order that is sent to the Office for Students. It is one of the initial steps in getting the issue challenged in court and is basically a letter to the Office for Students saying this is what you can expect our legal arguments to be. A bunch of legal arguments are presented, including that the Office for Students used a subjective and incorrect reading of the trans inclusion policy. The OfS missed a bunch of wider uni policy, the OfS defined legal speech in a very narrow way, and that other laws should apply too. And that the uni has a duty to prevent stuff like bullying and plagiarism, which cannot be done with the law alone, as the Office for Students seems to recommend. Now there’s a bunch of other stuff too, but at a skim, those are the juiciest arguments. As of yet we don’t know if the OfS has responded to this pre action protocol, though in theory they should have. So that’s an update on where that is.
Alyx: Honestly, they’ll probably respond to that. But like the day after we finished recording this.
Flint: Yeah, it’ll be 5 minutes after we wrap up and it’s been sent into the right folder, yeah.
Ashleigh: That’s how it works when we do our recordings.
Alyx: Exactly. Yeah. So, well, I’m glad the University of Sussex are fighting back, though, because that was a bullshit judgement, straight up.
Flint: Yeah. Freakish. Freakish judgement. Really gross.
Ashleigh: Speaking of gross people, I suppose, we’ve got to move to losers corner [Losers Corner sound effects]
Alyx: Just a quick one though.
Ashleigh: But we’ve got so much shit that we need to have a bit of a light and well, even if it is not light, I suppose it’s something, being Elon Musk having the shit ripped out of him with going on a live stream and I think we’ve had some interesting comments that Elon Musk receives.
Alyx: Yeah. Yeah, so this is him streaming himself, playing a game and dying in the tutorial level.
Flint: So there’s backstory on this as well, which relates back to a favourite of ours, Vivian, his wonderful daughter. He was claiming that he was a like pro-player on a certain game, he was streaming at one point, him playing a game. And people were saying it looks like he had probably paid people or paid for advancement in the game because his skill was just not matching up with like the rank and the stuff that he had or whatever. Forgive me, I don’t know the name of the game.
Alyx: Path of Exile 2.
Flint: Fantastic. Thank you ever so much. Then Vivian gets on to Hasan Piker’s stream, in which Hasan’s like, so what’s the situation with the gaming thing?
Do you think that he could be a gamer? Was he a gamer like that? And she said, No, she was like, oh, I have tea. I can tell you tea, Hasan. And she literally says, he used to pester me and my younger sibling, when we were on Overwatch because we were barely in silver and he wasn’t. And he used to pass for us to try and play, we think mainly because we could carry him, and I cannot remember the particular build that he played, but friends that I know in Overwatch when they heard the character that he played, and he played on bronze, they were like oh yeah, that tracks. And so then in response everyone kind of dunked, this that and like the other. And he, I feel like it’s somewhat in response but that’s just my own speculation, he then did another stream where he was playing a different game and he was playing on the tutorial and he literally died in the tutorial before he could even get to – he died on the first mini-boss that you get that’s in the tutorial before you get into the game proper. And people hacked into the stream and were leaving really, really vicious comments. And he ended up basically shutting down the stream, looking very sad and dejected.
And also do you not have other stuff to do? I mean, please don’t do it. Everything you’re doing is terrible right now, but also like you’re a government minister, you shouldn’t be this free.
Ashleigh: And also, didn’t he end the stream with like, there was technical difficulties because he was testing the Starlink Line, quote unquote, to try and –
Alyx: I think that was his excuse. Yes, I think he claimed there were technical difficulties, but actually he just straight up rage quit. After people said stuff to him like you have no real friends and will die alone, repeatedly, which was one of my favourites and you’ve ruined the country just like you ruined all your marriages.
Flint: Yeah. Yeah. And I mean it just reminds me of that article that was like, I never thought that the faces of fascism would be such losers or something akin to that. And it’s like, yeah, what a surprise that people doing, deeply uncool things are deeply uncool.
Ashleigh: Who would have thought it?
Flint: Yeah, what a surprise. I don’t know. It’s not really a losers’ corner story in the traditional sense, but I understand you’re putting it in here because like god damn, this was such a big failure.
Alyx: Oh yeah, tremendously. But just right at the end, he looked so angry. He was hilarious.
Ashleigh: Nice little gasp of air. Now it’s back to drowning. [sound effects].
Flint: Sorry, this is Sonic drowning noise. My bad.
Ashleigh: Don’t worry.
Alyx: Now that we’ve finally chomped through the rest of the news section here, let’s go to the delicious main course. I say delicious.
Ashleigh: This is absolutely rank. [sound effect]
Alyx: Yeah, this is definitely some rotten meat, isn’t it? So, of course our main segment this week, as we’ve already hinted at, is the UK Supreme Court ruling that trans women are not, in fact, women. This was the case brought by For Women Scotland, and took evidence from Sex Matters, Scottish Lesbians, The Lesbian Project and he LGB Alliance, among others, but refused to listen to any trans people, trans academics, trans charities, trans legal experts and practitioners like Victoria McCloud and Stephen Whittle. The judge overseeing the case, Lord Hodge, has been outspoken about gay and lesbian rights before. He headed a Commission on same sex relationships for the Church of Scotland, which was published in 2011. In it, the main recommendation was that gay and lesbian people involved with the church avoid same-sex relationships and quote, seek to rid themselves of their desires. And so of course, this was the man chosen to be in charge of this Supreme Court case.
Now, after the judgement came out, Baroness Falkner from the EHRC wasted no time letting her views be known, saying it means that single sex spaces like changing rooms must be based on biological sex. But then also saying that there’s no law that forces organisations to provide a single sex space and there is no law against them providing a third space, an additional space such as unisex toilets, for example. And we’ll come back to that in a moment. When she was asked directly about trans people who are worried that they’re now not able to use any public toilet or changing room, she again said there isn’t any law saying that you cannot use any third space and they should be using their powers of advocacy to ask for those third spaces. Forgetting, of course, Britain does not possess TARDIS technology and these additional third spaces cannot be crammed into buildings that already exist. And the Tory fucks who gave her her job made it difficult, if not illegal, for any new public buildings to have any gender-neutral toilets in them at all. It is literally Faulkner’s job to advocate for trans people in an equalities context. So her saying yeah, fuck you, it’s your problem now, is her abandoning her role entirely even more than she already has. And as Bluesky user Steph Paton pointed out, we couldn’t even have our voices heard in the Supreme Court while they were ruling on our lives. What magical power advocacy is going to get us third spaces? So, to preserve everybody’s blood pressure in this discussion, the rest of this segment will be an interview with journalist and legal expert Jess O’Thomson. So, let’s play the tape.
Interview
Alyx: All right, so Jess O’Thomson, thank you so much for joining us. Just for the benefit of the listeners who possibly haven’t read your article, can you give us a quick overview on the judgement.
Jess: So effectively, the Gender Recognition Act, which was put into place because of a decision of the European Court of Human Rights, so there was a challenge brought against the UK. It’s called Goodwin, in the UK, the case, and there was a challenge by a trans woman basically complaining that there was no legal way to change your gender in in the UK, right? And so she brought a challenge. And the European Court of Human Rights agreed that it was in violation of her Article 8 rights, that there was no mechanism which allowed her to do this. They basically said that it put trans people in a sort of state of limbo. This, I think they call it an intermediate space, right between different genders, and that that wasn’t OK. And they held that that was a violation of trans people’s human rights.
And so, following that decision, the UK implemented the Gender Recognition Act 2004 and what that says in section 9-1 is that for all legal purposes, so for all purposes, when you change your gender by obtaining a gender recognition certificate, it changes your legal sex, your legal gender. For all purposes, that’s what the legislation says. So everyone thought, OK, well, clearly that means for all purposes, right. That means under the Equality Act. That means that when we’re talking about sex under the Equality Act, and we’re talking about who’s a woman under the Equality Act, that must include people who have changed their gender via a gender recognition certificate because that’s the presumed reading from “for all purposes”, right?
But the Supreme Court decided that Section 9-3 of the Gender Recognition Act contains an exception to this, and the exception is that if Parliament wants to in the future, it can explicitly say, well, we’re talking specifically about something else, right? The Gender Recognition Act doesn’t apply here. What the Supreme Court said in this case is that the way that the Equality Act is drafted means that implicitly, that must have been what Parliament intended with the Equality Act. They must have intended in that act for sex to mean biological sex. And biological sex in this context has nothing to do with biology, although there will be gender critical people who will tell you it does, and then it’s just simple and it just means that. It doesn’t. And the court doesn’t provide any definition of biological sex and doesn’t talk about biology in any detail at all. But it says biological sex is actually just what is written on your birth certificate, basically. It says the sex of a person at birth and all that can mean is what was initially written on your birth certificate. So unamended by a gender recognition certificate, because obviously a GRC lets you change your birth certificate.
So what they said is that because of the way the Equality Act is drafted, and they focused on a few things, but specifically on things like the fact that it says when referring to things like pregnancy, the Equality Act specifically refers to women as being the people who can get pregnant. Now obviously a trans man with a gender recognition certificate would be a man, right, who could get pregnant potentially, depending on various things. So what the court said is that, well, they’re just saying women who can get pregnant and therefore the Equality Act must mean biological sex by this. And they go on to talk about several other provisions of the Equality Act. They talk about sexual orientation as well. They say, well, Parliament couldn’t have possibly intended trans women to be included under the definition of lesbians, so it has to be biological sex.
And what this means in terms of some of the other conclusions the court came to, and this is what I’m a little bit concerned about people are missing, is there are a few paragraphs later in the judgement specifically related to single sex spaces. Now, it’s important to be really clear what I mean here. I don’t mean every single space that tends to be used by one sex, right? That’s not what I’m talking about. There is a specific exception in the Equality Act that allows you to discriminate based on sex, if you are setting up a single sex service or space. So, for example, and this is the example that the court uses, a support group for women, specifically women who have been victims of sexual violence, so for female survivors, that is the specific example the court uses. So what you’re allowed to do as a service provider is set up a single sex space, but in order to do so, because what you’re doing right is discriminating based on sex, like on the face of it, you’re saying this space is only for women, no men allowed. And so by doing that, you are discriminating, right, on the face of it, you’re saying no men and so you’re discriminating against men by doing that on the face of it. So, what the Equality Act allows you to do is it has an exception that says you’re allowed to do that. But only if it’s a proportionate means of achieving a legitimate end.
So, what the court is now saying, which is different to how we thought about this before. So the way we used to think about this is that you had to pass that first hurdle there to be able to set up a single sex space in the first place. But then, if you additionally wanted to exclude trans people from it, there was an additional exception for discrimination based on gender reassignment. So, you could have a single sex service for women, right? And you were allowed to exclude trans women from it as well. You just had to show that excluding trans women specifically was also, as part of a separate test, also a proportionate means of achieving a legitimate aim. So you have to prove that it’s proportionate to have a single sex service in the first place. And then you have to prove that it’s proportionate to have a single sex service that excludes trans people, but specifically trans women, is usually how this works, because it’s usually about female spaces.
What the court said is that people have been understanding the law wrong. That’s not how it works. You do have to have that initial test to see if it’s proportionate to set up a single sex space. But the moment you’ve done that and you’ve proved that’s proportionate and honestly, so far, in the case law, that’s been a pretty low bar. It might change because of this judgement because of the implications of who else is excluded now, but I wouldn’t place your bets on that, but it could be argued that way basically that now, if you set up that single sex space, it automatically excludes transporting because trans women are considered male. They’re considered men, so they’re just part of the group that you’re already automatically excluding, right? Because they, for the purposes of the Equality Act, are considered to be men. The additional thing? So then people go, so what’s the point of having a separate gender reassignment exclusion? That doesn’t make any sense.
The court goes, well, actually it does. Because the people you’re then potentially excluding is trans men as well. Right. So you can then additionally, if you’ve got your female single sex space, not only automatically exclude trans women, you can then go actually, it’s also proportionate to exclude trans men as well from the service because they might upset women by being there, because they look too masculine. That’s literally the example the court uses, specifically with regards to that Survivor Support Group. So you might additionally be able to, you might effectively from a female single sex space, be able to justify excluding literally all trans people. So that is how the exception seems to work now. So yes, you still have to prove that it’s a proportionate means of achieving a legitimate aim to exclude men from a female space to have a specifically single sex space. But you don’t, it seems, have to do that anymore, to specifically exclude trans people, unless the trans people you’re excluding are of the same biological sex in big scare quotes there as the space you’re running.
So, yeah, that’s the real big concern, I’d say from this case. The other really big concern is equal pay. So previously, trans women with a gender recognition certificate, because they were considered female for the purposes of the Equality Act, were able to bring equal pay claims because the way equal pay claims work in the Equality Act isn’t through the usual discrimination, whatever stuff. It’s not through the usual mechanisms. It’s a specific thing. You as a person of one sex have to point to a person of another sex who’s getting paid more than you, right. And then you can make the argument. So it’s usually women pointing to men, obviously. But you can then make the argument that you are being paid less and should be paid more. You should be paid the equivalent.
The way that the court has interpreted the Equality Act now means that trans women who are facing misogyny, who are being underpaid. Who according to stats from the US, we don’t really have UK stats, are earning $0.60 on the dollar compared to cis men and that’s less than cis women are, right. So trans women who are underpaid more compared to anyone else, they can’t bring equal pay claims anymore because it’s a man bringing a claim against a man for the purposes of the Equality Act. So, you can’t do that. Trans men, however, now can bring equal pay claims against men. So, it’s kind of switched it around. But the reality is that trans women are the people who are hurt by this, right? Because trans women are the people who are being underpaid the most. So that’s a brief overview, slightly more than brief, but I hope it’s useful.
Alyx: It very much was. And it’s just gone and made me slightly angry all over again. Speaking as a trans woman who doesn’t have a gender recognition certificate. I’m in the process of getting one. But now what’s the point, really?
Jess: You can update your birth certificate. That’s about all it does now. If you want to get married, you can have the correct pronouns used for you. That’s it. That’s basically it.
Flint: I’m curious where non-binary people stand in this ruling so far because obviously understandably, a lot of the focus is on trans women and trans men, understandably so. But yeah, where do non-binary people stand within this.
Jess: So obviously I’m non-binary myself. The answer is nowhere, because that was the state of the law previously, our position is mostly unchanged in the sense that we have no legal recognition whatsoever. So sex, for the purposes of the law, is entirely binary and so non-binary people don’t really fit into this. The only thing that you know we do fit into is, and this is the important thing to emphasise is that it’s still unlawful to discriminate against trans people, right. And that includes non-binary people. It’s people with the protected characteristic of gender reassignment and the case law for now says that non-binary people are capable of fitting into that and having that protection right. It’s anyone who is proposing or has undergone to change their sex. But that doesn’t necessarily mean having done so completely right or whatever in like a very binary static way that includes social things. There is case law that says non-binary people are still protected under that kind of discrimination of the Equality Act. But in terms of sex provisions, nothing’s really changed for us because we didn’t have any protection anyway.
Alyx: OK. So what do you think was behind the court’s reasoning for excluding all of the trans voices from participating in the case?
Jess: I think it’s complicated. I’m trying not to be too generous to the court. There were two interveners who applied, right, so Stephen Whittle and.
Alyx: Victoria McCloud.
Jess: Yes, who is a retired trans judge. So Stephen Whittle is a trans academic who researches and writes on these issues, both of whom would have obviously, I think contributed very significantly to the case. The thing that concerns me is that no trans organisation intervened, which probably would have been more likely to be heard from my understanding. So, Amnesty International were able to intervene and they spoke on behalf of trans rights, but obviously are not trans, do not necessarily represent trans people, but they were concerned about the human rights implications, rightly so, and I think what has happened is that the environment that has been created for trans organisations is so hostile, threats from Charity Commission, getting just absolutely destroyed in the press for weeks at a time, having the people who work for you, people who do this work publicly targeted and harassed, the financial cost. The reality is, is that the trans sector just doesn’t have the resources. It doesn’t have the resources in any form, not money, not time, not emotional energy and ability to withstand this. Just me writing about this judgement has gotten me insane amounts of hatred, and I’ve not even said anything really of interest. I just said what I thought the law was. And I can understand why no transport organisation intervened. Because it would have probably destroyed any organisation that did it. But the sad reality is, is that I think that that’s part of the reason why none of us were heard in court.
Flint: Speaking on the Queer AF article that you wrote, you spoke about how this judgement seems to go against one of the European Court of Human Rights. Could you expand on that a little bit for us?
Jess: Yeah, of course. So as we said at the beginning, the reason the Gender Recognition Act was brought into force in the UK, this wasn’t some nice gift of the Labour government to be clear, all of our rights that have been achieved in this country have been achieved with great protest from the people who have been forced to implement them, right.
Which I think is why people are so upset about the Supreme Court judgement actually, is because generally speaking, trans people have had to rely on the courts a lot to get our rights protected in this country. Legislation has never been something that’s happened just organically to help us out. And so I think people feel that one of the few avenues that has actually protected us sometimes has done a lot of harm, so I think there’s almost a sense of betrayal there. I know there are a lot of trans people who believed in and trusted in the law to protect us. I mean, even me to some extent, I didn’t expect this Supreme Court judgement whatsoever. And I’m definitely one of the more sceptical legal people. I think everyone thought this legal argument was a bit ridiculous and that there was no way that the Supreme Court would agree with it, but apparently they have. So there we are.
But the issue is, is that obviously the Gender Recognition Act was brought into force to address the idea that trans women are recognised as women in some contexts and not in others, and that it creates this weird thing where it says female on your passport. And so this was the case, right? It says female on some of your documents but not other documents. And it says you’re female to, you walk through the world as a woman, but your pension says you’re a man. It was specifically that disconnect that the court felt, the European Court of Human Rights felt was not OK, that there was a violation of trans People’s Article 8 rights. And so what the Supreme Court have done in my view, and certainly the view of other people is just created that kind of disconnect again, right. So what, trans women aren’t going to be able to use women’s toilets anymore? That’s what some people are saying. I’m not sure that’s true, but that’s certainly what some people are taking from this judgement. And trans women aren’t being able to bring equal pay claims. That’s huge, right? Because what you’re saying is that trans women, even though they’re being underpaid in the same way women are, aren’t being recognised in that way. So, yeah, I think there’s big implications that for the ruling in Goodwin in the UK and I think potentially, if a case could be brought to the European Court of Human Rights, then it might be held that the current legal state of things now is a violation of Article 8 rights, in my view.
Alyx: Well, sticking with that in fact, so if we were, if someone was to challenge this in the European Court of Human Rights, what do you think some of the outcomes might be?
Jess: The Human Rights Act, the way it works, it has two ways of implementing incompatible, like issues of conflict between domestic law and domestic legal interpretations and the European Convention on Human Rights, right. So if Strasbourg, say, Strasbourg, being the European Court of Human Rights, if they say, actually no this is this isn’t OK, this is a violation of human rights. You’ve got to treat trans women with a gender recognition certificate as women for the purposes of the Equality Act or else, you’re violating their rights, if Strasbourg come out and say that, then the domestic courts have two options. The 1st is Section 3 of the Human Rights Act, so that obligates courts to interpret domestic legislation compatibly with the European Convention on Human Rights. What that means is that the court might have to actually go, OK, we have to reinterpret this and assume that Parliament did, in fact intend trans women with a gender recognition certificate, for example, to be recognised as women for the purposes of the Equality Act. They might just have to change their interpretation. But that decision would probably have to be made by quite a higher court, if not the Supreme Court, I’d say. The other avenue is actually to go, there’s no way you can read the Equality Act to be compatible, right? There’s no way you can understand it in a way that is compatible, it would be too strange a reading. And if they were to take that decision, then what they could do is they could issue a declaration of incompatibility. Which says this this piece of legislation is incompatible with human rights, and that’s the sort of invitation to Parliament to legislate and to change.
Flint: Yeah. So when talking about an invitation to change, do you mean that would mean that the government would have to rewrite the Equality Act?
Jess: Yes, or pass a piece of primary legislation of a similar kind that amended the Equality Act afterwards, right? That made clear that trans people should be treated as, whatever.
Flint: Turning to the Equality Act, then. If this was to be challenged in the courts, what, I suppose you’ve already spoken on this, but what do you think that that would look like? Obviously, having spoken about the fact that they would have to bring in a clearer law about protecting trans people.
Jess: So I think our options now are two ways, so we can think about legal challenges. So that would mean a challenge to the European Court of Human Rights. So there would need to be someone who could bring that kind of claim, and they would need to be supported both financially, legally, whatever to be able to bring that claim because it’s a long and difficult process, so that needs to happen. That’s one way of going at it and then you can try and get a decision which should make the courts reinterpret the Equality Act or issue a declaration of incompatibility.
Or you can do what we all kind of should be doing now, which is specifically lobbying for legislation right now, right. We don’t need to wait on a decision of the European Court of Human Rights. We have a Labour government in power who are theoretically supposed to be the pro-trans ones, right? You know, if everything I was told for why I should vote for Keir Starmer is true. Then Labour should be on this straight away. You know they should absolutely oppose the removal of trans people’s human rights, which is, in my view, exactly what this Court decision was. They should be looking to legislate right now to make it clear that no, trans people are protected under the Equality Act as their acquired sex, and so we can be pressuring Labour MP’s right now to to do this. And not just Labour MPs. It’s Lib Dems, Greens, people who can speak up in Parliament and say, actually, no, this isn’t OK. Because it’s not OK. The thing I would say is that there are currently a lot of different contested interpretations of the judgement, and a lot of academic lawyerly types talking to each other about what precisely things mean. But in my view, that doesn’t actually matter. What matters is what’s going to happen in practise, and that’s what I’m a little bit concerned about because the EHRC have made clear that the way they interpret this is that trans people won’t be able to use a variety of different everyday services, including toilets.
So what the EHRC are doing right now is they are drafting a code of practice that’s going to go before Parliament and specifically related to these things, and Parliament have to approve it and it will become a statutory code of practice. So that doesn’t mean it will be the law, but it will be influential on how the law is interpreted and very, very influential on what service providers do in practice. And the concern is that the way that Kishwer Falkner has been speaking is that that code of practice is going to look like it’s saying that trans people should be automatically excluded from toilets and should be campaigning for a third space, so should be using disabled toilets or gender neutral toilets, which obviously are not available everywhere.
Speaking as a disabled person, it’s not great. In practice, that’s what we should all be looking out for. I think that code of practice, the ball’s in the EHRC’s court. Now I think in terms of what’s actually going to happen in practice, the other thing to be concerned about is that there are very, very well-funded and dedicated anti-trans campaign groups who will be writing to the NHS, to every service provider, to M&S, to every shop, to everyone that they can potentially get in contact with and say you should be banning trans women from your changing rooms or your shop toilets or your whatever. And if you don’t, we’ll sue you. Because whilst it is absolutely not, apart from incredibly specific circumstances, for example in schools, mandatory to provide single sex spaces and single sex toilets, gender critical campaigners are threatening to sue on the basis that it is, and that if you allow trans women into women’s toilets, you’re somehow breaking the law. And that’s not the case at all. And I really want to emphasise that providers absolutely can choose to allow trans women into their services, the only fear is that there is a potential interpretation of the law that if providers do decide to do that, they might be obligated to let men use those services as well.
Jess: And that’s what people are afraid of. So wait for the EHRC guidance, that will be what we need to fight.
Flint: When it comes to the EHRC, I know we’re speaking quite speculatively here, but if they were to come out with such a code of practice that was so exclusionary. Where could GANHRI maybe come into that at all?
Alyx: The Global Association of National Human Rights Institutions.
Flint: Thank you. Yes.
Jess: So I was part of the initial attempt to get GANHRI to review the EHRC on the basis that it is in fact now a front for anti-trans campaigning in many senses, right. And I thought that it should be reaccredited, and its accreditation should be lowered. But GANHRI refused to do so. I fear that there is very little that will motivate GANHRI to change their position on that front. I think we’re in a position where I think the Supreme Court, maybe the Supreme Court judgement, has made me cynical, more cynical than I was before. But I think we’re in a position where we need to be a little bit less optimistic about how human rights organisations and courts and people are going to treat us, and that even though something might seem to be plainly correct on the face of it or plainly in breach of human rights, the political situation is such that there is either cowardice or indifference with regard to trans people’s rights. So, I think we’re going to have to do a lot of work for ourselves.
Alyx: Yeah. So, full disclosure, we recorded the main bulk of the podcast last night and a lot of what we were talking about, the end of this segment is look, we’ve got to look after each other because nobody is coming to help us. We didn’t say it quite so bleakly, but that was that was the vibe. OK so, let’s talk about Ben Cooper, KC, because he has defended anti-trans causes before in court, hasn’t he?
Jess: Yes. So Ben Cooper is the gender critical lawyer of choice, or at least one of them. There are a couple to choose from, but he represented Maya Forstater. He represented Allison Bailey. Really, he’s known for this kind of work. It’s a special interest of his, potentially. He got a special thanks in the judgement. It really went out of its way. It went, thank you for all the submissions from everyone, like judgements usually do, but it was like, Thanks in particular to Ben Cooper. Providing the framework of how we’ve understood all of this.
So that’s probably why the judgement reads like it was written by Sex Matters. Because it seems to be their argument by Ben Cooper that really stuck with the judges and that’s what they decided to go with, I don’t know. Maybe he’s just such a compelling advocate that he just made what to lots of people previously seemed like an implausible legal case seem so persuasive, and maybe it’s the fact that there were no trans people to speak against him that also helped the court reach that conclusion. I’m not particularly surprised that the judgement is the way it is when it spends so much time citing anti-trans campaign groups and gender critical laws and gender critical academics. It’s not just people who were intervening because obviously Ben Cooper is acting on behalf of Sex Matters who were intervening in the case, and it cites a lot from the interveners and the evidence they provided. Though very little from Amnesty International. It also cites from people like Michael Foran, who is a gender critical academic who I believe did some work for Policy Exchange who are a right-wing lobbying outfit.
They’re a very well organised set of people, very well-coordinated and I’m not surprised that they were all citing each other and all got cited in the judgement.
Alyx: It’s just like I’m trying to think of a professional way of saying circle jerk.
Jess: The judgement feels incredibly one-sided. There’s barely for example any discussion of the human rights implications in relation to Goodwin in the judgement, which I was really shocked by because I was like, maybe it’s human rights lawyer brain, but for me that was a huge element of the case and why you couldn’t possibly interpret the Equality Act in that way, because to do so would be incompatible with Goodwin. So how could you? I think the lack of trans people speaking in court was quite significant.
Flint: Yeah, I also wonder if maybe sidestepping Goodwin – now that you’ve laid out how instrumental it is, I wonder if sidestepping Goodwin in direct discussion was in part so that you didn’t have to write down an argument against that, when it is such a strong argument as to why this ruling shouldn’t go ahead.
Jess: The thing is, they mention the case. They bring it up, they are aware of it. They didn’t really consider the implications and that really worries me. I worry that – I wasn’t there. I wasn’t in court. I worry that maybe the Scottish Ministers case didn’t focus on that enough. That should have been something that trans people could have intervened on. And this judgement is just a real shame. It’s going to have such a negative impact and it’s going to take us years. To get back to the position that we were even in and the position we were in wasn’t great.
Flint: Our final question, and so I’m going to add in this caveat, is there anything else you wish to add, what do you think this means for us now?
Jess: I think this means a significant reduction in our rights. I think there are a lot of people who are trying to downplay it including trans people. There’s kind of two groups of people who are trying to downplay it, right? There are the sort of centrist types who are like, you know, the court said that it doesn’t change anything for trans people’s rights, so then it must not change anything for trans people’s rights, right? It’s all fine. It’s all fine and dandy and everyone should just get along. And now that everything’s clarified and there are no questions anymore, there shouldn’t be fighting anymore. Hopefully this will take the heat out of the political debate. That kind of nonsense. So that’s harmful for obvious reasons, I don’t think I even need to particularly lay out.
But the other thing is, I think, there are trans positive, trans friendly people, I think who have not read the judgement closely or have not perhaps understood that it’s what the EHRC are going to do with this, that is going to matter in practice, right? We can say whatever we want academically about the law. I worry that underplaying this and underplaying its significance is just as damaging as the way that GCs usually try and overhype and mislead with cases, right? I want people to know the seriousness of what’s happened. I want people to understand that yes, they do still have legal protections. Yes, this isn’t the end of the world. Yes, we can fight this.
But it’s serious harm, right? This has seriously impacted our rights, and it should hopefully be a rallying point for us and our allies to do something about it. But just sitting there and pretending that this isn’t going to have an impact, I think is harmful or naive. I think it is going to have an impact and we’re going to have to be prepared for that impact.
Flint: Yeah, this really does seem like a very, very sickening turning point in our rights in this country and I’m also very scared about the ripple effect it’s going to have.
Jess: I think it’s also important to acknowledge the rhetorical effect it’s going to have, right, outside of the law. Put the law to one side because what’s written down in case law and statute isn’t what happens in real life, right. What’s going to happen is this is going to more than ever, embolden people to discriminate against us. I mean, we’ve seen that with police forces, the British Transport Police saying they’re going to allow male officers to, or in fact, oblige that it is male officers who strip search trans women. Right, there is, as far as I can see, nothing in this judgement that would suggest that that needs to happen. I think it might even be directly contradictory to some existing law, though I’m not a specific expert on that, so please don’t quote me. It doesn’t matter what it says in this judgement. What’s going to happen is that people are going to use this to harm us and if it emboldens people to harm us, we still have to deal with that harm regardless of what it says on paper.
Alyx: So of course, you two saw this because this judgement came out yesterday as we record this.
Flint: Yeah, yeah, I watched it live. I think I took some psychic damage from that choice but we live with the consequences of it. It felt like it was written by Sex Matters. It felt like it might as well have been written by For Women Scotland.
And I’m concerned about the way in which it seems to have immediately bled into the EHRC, Falkner jumping on it, the way in which it seems like bans to public spaces are imminent.
Alyx: So yeah, I think part of the reason it feels like it was written by Sex Matters is because Ben Cooper KC, whose job title changed its pronouns a couple of years ago, is quite the anti-trans defender. He’s helped Sex Matters out in court before and the judgement specifically called him out for providing clarity and understanding to the issues, I think that was the phrasing they used. Ben Cooper.
Flint: What a prick.
Alyx: Yeah, absolutely. No two ways about it. So we can spend a while talking about, Ohh, And The Thing Is, Oh, Those Bastards and stuff, because we’ve spent the last day or two doing that in the group chats that we’re in. But let’s talk about looking after each other and fighting back.
So let’s talk about looking after each other first, right? Mutual aid. That’s where it’s at. Maybe there’s a mutual aid group near you, dear listener, or that you can get involved in. Or if you if there isn’t one, maybe it’s time to start one. Look after the most vulnerable people in your community, because one day that will include you if it doesn’t already. Speaking as a disabled trans woman it feels a bit close to home now, that.
Hold your friends close.
Flint: Remember, there are so many wonderful and amazing parts to this world that we get to experience. Genuinely as much as I was like, LOL, Poisson le Steve, sometimes you need doses of that kind of fucking whimsy. You need spaces to be able to shut off and allow yourself to just be, to find those people that you can switch off around and find those people who can help take care of you. Ask your mates for a cup of tea as in, you know, ask them if they want one. You know what I mean? Simple shit like that.
When there is some all-crushing news and I’m saying this, I’ve been in a position where the last 48 hours I’ve been flitting between anger, tears, dissociation, numbness and, you know, add forth infinitum. Ground yourself. Allow yourself moments to feel the feelings. Allow yourself moments to cry, to shout, to get it out, and then allow yourself to ground and to remember why you’re here. Remember that you are loved, that there are people around you who love you. This ruling is not going to be the final ruling ever made about our lives, there will be a time where this will be remembered for the absolute fucking stitch-up that it is. And get to that point. Get to that point where you can celebrate that, please.
Ashleigh: Yeah, this is a marathon, not a sprint. Every time I’ve seen something on social media, there’s always mention of rest is a form of activism taking time to recover, that is a bit of activism because you’re getting yourself ready for the next bout, when that happens and making sure you take a minute to take a breath as you said, feel the feelings. Because there’s going to be a fight back, but you need to make sure that you’re ready for it.
Flint: Yeah, there’s a saying and I may have said this on the pod before, but it’s relevant now, but there’s a saying that for me as someone who loves club culture, rave culture, less club culture, more rave culture. There was a saying from during the AIDS crisis that sticks with me and has stuck with me for the last year or so, which is in the mornings we buried our friends, in the afternoons we protested, and in the evenings we danced all night, and it’s the dancing that allowed us to get through to the next morning and do not forget that you are allowed to feel joy in spite of hard times. That is not to say focus on feeling joy to distract wholeheartedly from the circumstances we live under, right. But there’s a balance there and do not feel as though giving in wholeheartedly to your hypervigilance is going to be a good and healthy mood for you? It won’t be.
Give your nervous system times to settle down, settle back, and to not be provoked quite so much and I know that’s going to be really fucking difficult. But you know, I’m saying this as much to myself as to others right now.
Ashleigh: Exactly, I suppose, to round things over, we’ll definitely keep everyone aware of if there’s actions to take place, we’ll be directing you and we’ll be keeping you informed as everything happens. We’re here for you, for all of you, and we’ll make sure to be keep you informed for most accurate and information and most up to date as we can. And yeah, give you the ammunition you need to fire it back at those fuckers. Yeah, yeah.
Alyx: And on that note, yeah, an absolutely solid note to end on, I think, thanks for listening. We love you. Look after yourselves and Nolite te bastardes carborundorum.
Flint: Is that don’t let the bastards get you down?
Alyx: It is indeed. Don’t let the bastards grind you down.
Flint: Too fucking right.
Alyx: Don’t let them win. Do not comply in advance. Or another way I’ve heard, don’t comply in advance, a way I’ve heard it phrased is fuck you, make me.
Flint: Yes, absolutely. Abso-fucking-lutely. I mean, fucking live out of spite if you have to, but fucking live. Yeah, yeah.
Alyx: Yes, yes. We’ll all still be alive for the next episode, coming along in two weeks. Thanks for listening, and we’ll be back then.
Ashleigh: This episode of What The Trans was produced and presented by Alyx, Ashleigh and Flint, and written by Ashleigh, Alyx, Flint and Sammy. It was edited by Amber Roberts and Amber Devereux, and our opening theme music was composed by Waritsara Yui Karlberg, with our episode thumbnail by Uppoa Piers, and transcription performed by Sam Wyman, Rowan B, Rachel Aldred, Georgia Griffiths and Becky. And we would especially like to thank our producer-level Patreons. Who are:
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