Trans Panic

In a historic case, the Supreme Court just ruled that the definition of “woman” under the Equality Act is limited to biological women, therefore excluding trans women, even though the judges were careful to stress that the same law still protects trans people.

The decision has sent shockwaves through the country’s LGBTQ+ communities.

This ruling is the most significant victory yet for a small group of online campaigners who have waged a long struggle to change British law. Thanks to their relentless efforts, the media ended up fueling a moral panic rather than focusing on the implications for self-identified transgender women.

Self-described “gender-critical” feminist campaigners couldn’t contain their joy at the news. They cheered for the cameras, hugged and popped open bottles of champagne outside the court.

Just three days later, over 20,000 people gathered in Parliament Square to demonstrate their opposition to the ruling. The Supreme Court decision has sent shockwaves through the UK’s LGBT communities and the reverberation is still being felt.

The Supreme Court ruling drives a wedge between the 2004 Gender Recognition Act (GRA) and the 2010 Equality Act.

The GRA allowed transgender people to change their documents—birth certificates, passports, etc.—while the Equality Act protected them in law. Now, trans women with gender recognition certificates, a minority within a minority, will not be counted as women by the Equality Act.

The specific case waged by For Women Scotland concerned whether trans women could be appointed to public boards under allocations for women. The Scottish government had tried to implement a trans-inclusive policy.

The Equality and Human Rights Commission (EHRC) is busy revising the guidance on rights to access single-sex spaces. In the meantime, the EHRC has issued interim guidance on transgender people and single-sex spaces.

The ruling means trans women cannot access women’s spaces, and trans men cannot access men’s spaces, according to the commission. This was the main goal for most anti-trans campaigners.

Yet the EHRC also said trans men can be excluded from women’s spaces in “some circumstances”. So trans men shouldn’t use any single-sex space, presumably for fear of cis men accessing such spaces under false pretences.

At the same time, the EHRC claims businesses need to offer unisex or gender-neutral spaces, which are very far from universal. But it also suggests trans people can use whatever toilets are available if not.

Of course, how people are perceived will have much to do with how they are treated. Trans women who “pass” may be able to go about their daily lives without too much trouble, while cis women who don’t fit the stereotype face harassment.

This is already happening and will probably get worse. The ruling has emboldened male chauvinists all over the country. You couldn’t miss them online after the decision was announced.

It’s important to recognise that the struggle over trans rights is far from over. We will likely see a series of legal challenges over the right to access single-sex spaces, particularly over whether businesses offer the right spaces to workers or customers.

The long march through the institutions is bound to continue for many years.

Welcome To TERF Island

All of this must seem very odd to Americans. Unlike the US, the great divide over trans rights in the UK isn’t between left and right. Instead, it follows a diagonal line across the political spectrum.

Some people have taken to calling Britain “TERF (trans-exclusive radical feminist) Island.” Trans-exclusionary arguments have been gaining ground in Britain for the last decade. Anti-trans narratives crystallised in the UK media long before the Supreme Court heard this case.

But the gender wars go back much further than that.

Radical feminists have long been divided on the question, and it has not been easy to predict which side someone would choose.

For example, if we look at the so-called porn wars of the 1980s, Andrea Dworkin and Catherine MacKinnon were both trans-inclusive radical feminists.

While the narrative currently dominating British media suggests that the trans-exclusionary faction was in the majority, the truth is more complicated. The feminist opposition to trans rights has been declining in most Western countries.

As for the wider left, there were certainly male socialists who viewed feminism and gay rights as “distractions” in the 1970s. Indeed, some British Trotskyists denounced gay rights as a bourgeois demand.

This approach proved unsustainable once Margaret Thatcher found gay-bashing very useful. Socialists who avoided this issue risked losing potential allies at a time when the right seemed unstoppable. But a lot has changed.

Today’s so-called TERFs are predominantly liberal and conservative. Many of them come from elite backgrounds or the professional-managerial class. This coalition includes factions from the far left and the far right. It’s no coincidence that JK Rowling, a literary icon of the Blair years, has become a crucial node in the anti-trans network.

Ironically, the gender-critical movement is anchored within a part of the political centre that fractured in 2016.

In most countries, the story is quite different. Usually, the conservative right is the driving force of anti-trans animus in the political culture, while the liberal centre-left and the socialist left are united on the side of trans rights.

Why are things so different in Britain? The UK may have a Protestant state order, but its culture is profoundly secular, especially in mainland Britain. Topics like abortion and gay marriage are now consensus issues, more or less.

In the US, the fear of the radical Christian right is a useful solvent for bringing together liberals and leftists, who are so often conflated in the minds of conservatives. By contrast, the decline of Christian Britain allowed opposition to trans rights to take another form.

The British opposition to trans rights has built a broad coalition, bringing together sections of the right and the left. But for gender-critical politics, the mainstream comes from the old liberal centre.

It’s no coincidence that the gender-critical movement included many cultural figures from the New Labour era. In addition to Rowling, former comedy writer Graham Linehan has played an important role.

Another prominent gender-critical writer is Helen Joyce, who spent many years as an editor for The Economist, the de facto house journal for centre-right pro-business, pro-war liberalism.

Somehow, the traditional standards of liberalism don’t apply to the trans question. For example, the harm principle, crucial to classical liberal thought, would allow individuals to adopt a new gender and live freely, provided they aren’t hurting anyone.

No liberal who rejects trans rights would accept this line. For this one issue, liberal shibboleths of tolerance, pluralism, individuality and choice are all suspended.

Although liberalism has always been Janus-faced, something more is taking place here.

The pipeline that directs erstwhile liberals to devote themselves to the gender-critical cause ultimately leads to Postliberalism.

What Brexit represented for militant Eurosceptics, the movement to restrict trans rights represents for centrist dads and liberal mums who voted Remain.

The Postliberal Moment

Much like ultra-Leave voters, many liberals have been radicalised by the algorithms of the culture war. The intense polarisation over gender is even more extreme than the national spat over the EU.

Follow this discourse closely, and you will discover a strange smorgasbord of wild beliefs. You’ll read that trans rights will abolish women’s rights, even abolish lesbianism. You’ll see trans women are compared to Nazis and conflated with paedophiles.

Of course, the lack of a systematic politics leaves many anti-trans activists vulnerable to conspiracy theories. Many militant transphobes are fixated on the idea that transgenderism is the leading edge of a transhumanist project backed by Big Pharma capitalists with Jewish surnames.

It’s no accident that so many anti-lockdown cranks have ended up as anti-trans campaigners. So-called “gender ideology” is seen as one component of a new totalitarianism imposed by the same globalists who backed lockdown.

Something is in the air. Transphobia is one part of this picture, just as scientific racism is back in vogue on the right. The cultural backlash to “woke ideology” is intensifying rather than dying down.

White nationalists like Jared Taylor call themselves “race realists.” By unlikely coincidence, some relentlessly online feminists who oppose the trans rights movement are calling themselves “sex realists”.

Critical race theorists and gender theorists are often dismissed as postmodernists or worse. Anyone questioning the reduction of strict gender roles to biology is immediately accused of denying the very existence of biological sex differences.

While many gender-critical campaigners continue to believe that they support human rights, they are seeking to reshape the framework for them around human biology. This is almost how classical liberals once viewed individual rights as God-given or natural.

That conviction was always wrong because governments can bestow rights to anyone. They can be created into law overnight and abolished the next day. Our rights are only real because they carry enforceable weight under the law.

Normative political claims can’t be bypassed by descriptive scientific claims. The fact-value gap is nowhere to be seen in anti-trans discourse because nature is normative, and biology is destiny.

The bio-essentialism of the gender-critical movement is fundamental to its politics. Everything else can be fed through the siphon of sex realism.

When challenged, anti-trans campaigners will quickly pivot to arguments about safety: the safety of women and children. The twin focus is single-sex spaces and bodily sovereignty.

Of course, this fixation on living space and sovereignty easily translates into the national body.

This is why former centrists are now increasingly aligned with national conservatives and the radical right on immigration. The emergence of so-called reactionary feminists Mary Harrington and Louise Perry is a prime example.

The movement to restrict trans rights is part of a much bigger story. We may be witnessing the consolidation of an “alt-centre” to match the alt-right. The postliberal moment is transforming the entire political spectrum.