Why now is NOT the time for “common sense"
Because common sense is a tool of oppression
'A very practical, common-sense decision'
This is how the decision to make the gender binary explicit in the 2010 Equality Act was described by the UK Supreme Court.
A decision that immediately erases 20 years of progress for trans rights.
A decision that excludes non-binary people and intersex people from legal protection.
A decision that will further embolden those who seek to demonise and oppress trans women.
A decision that was taken without hearing from any trans women.
The judge argued that trans people are still protected under the definition of gender reassignment (and don’t need certification to prove this). But that's not the full story.
It’s another example that the law simply serves to protect power, not the most vulnerable. And the cisgender women (cisgender or cis = not trans) cheering outside the courts after this decision have missed this point. They have failed to understand that what they are cheering for, is the law to legislate over their bodily autonomy and freedom. And that when the courts will do this, they will not even be allowed in the room to advocate for themselves.
When we allow definitions to be changed to exclude minoritised groups, we have to recognise that, as people from minoritised groups, this will happen to us too. It’s only a matter of time. Trans people were not, obviously, cheering in the halls after this decision. Far from it. Trans campaigners recognised this for what it is. A decision that was politically motivated and deliberately made to make trans people a target and remove decades of progress and recognition.
Also, the court says that biological sex will now define a woman - but how will they tell? Invasive, violent examinations before someone will be allowed entry into a designated “women’s only” space? The idea that you can tell someone’s identity by physical appearance is both incorrect and harmful.
Yet it’s common sense, apparently. Common sense (from Latin sensus communis) is "knowledge, judgement, and taste which is more or less universal and which is held more or less without reflection or argument". Universal? Or held by the dominant majority (in this case, cis people). No reflection? This sounds like no thought given. No space for exploration. No argument - this assumes that argument is a bad thing. Let’s replace that with discussion. A judgement which is more or less universal and held without thought or discussion.
Is that really how we want human rights to be decided? Without thought, discussion and always in favour of the perceived majority, not the people who need the most protection?
One of those things, that is, just “the way things are done”. Which is a frequent argument used in favour of oppressive structures and policies.
When it comes to human rights, we don’t want ‘common sense’
I would argue that when it comes to the rights of the most minoritised groups in our society, we don’t need common sense. We want decisions that are taken with reflection and that are not universal but equitable instead. The alternative is frankly terrifying and results in decisions like this, which only fan division and fear - and benefit no-one in the long run. Because let's be clear, this isn’t about women's safety. It never has been. If it was, our legal system would be focused on tackling the 83% of sexual abuse and 76% of domestic abuse that goes unreported. And given that trans people are under 1% of the UK population and twice as likely to be victims of crime, making them the target and focus of Supreme Court action when there are so many legal injustices that need attention is…telling.
As the Good Law Project have said,
“This is a real low in British legal history”.
For any cis-led organisations (or cis people) who are thinking of changing policy or activities to exclude trans people based on this ruling, think again. Please.
If you are serious about justice, you will know better than to take your lead from the law - protection of the most marginalised and vulnerable has always had to go way beyond this.
Solidarity and love to my trans siblings.
P.S If you want to do something proactive, donate to the following organisations:
Black Trans Foundation
(NB their services are closed but they redistribute funds to Black trans folks who need support).
https://opencollective.com/blacktransfoundation
Trans Actual
https://www.peoplesfundraising.com/donation/support-transactual
Mermaids
https://mermaidsuk.org.uk/
Trans+ History week
https://chuffed.org/project/queeraf2024
This will be my last free Substack post for Doing the Work
At least for a while. Doing the Work is about taking sustained, committed action. Providing resources that can be consumed passively, without commitment or follow up is not in keeping with how we do things or what I know works. Also expecting free labour from Black people is… not in keeping with anti-racist and anti-oppressive work (and if I am enabling this, then I am complicit). I know that you, as part of our community will agree with this.