Sandra Duffy

First impressions on the EHRC Code of Practice for Services, Public Functions, and Associations – a Q&A

Hello, UK trans community and allies. It’s been a long old day (year) waiting for this but it’s finally upon us. Bridget Phillipson has laid the new EHRC guidance before Parliament and it’s been published here.

Everybody scream.

Let’s have a little read together.

What is the Equality Act 2010?

Good question! It’s the main legislation on discrimination which applies in the UK (England, Scotland, and Wales, and differently in NI). The Equality and Human Rights Commission oversees it. They’re the ones who’ve written this delightful tome we’re currently holding.

What is the Code of Practice and why is it important?

There are different Codes of Practice, for example for employers or for service providers. This is the service provider edition. It is basically a guide to how to implement the Equality Act 2010 on your premises or regarding the people who interact with your service. Codes of Practice don’t impose legal obligations like a criminal statute would (you can’t get arrested under a Code of Practice). But they can be used to back up, for example, a discrimination claim under the EA2010. [s1.6]

Who can be discriminated against?

Lots of us. There are nine protected characteristics (reasons for potential discrimination) under the EA2010. For our purposes, we’re interested in sex and gender reassignment.

Sex is defined with reference to For Women Scotland v The Scottish Ministers so it refers to sex assigned at birth, or as the Supreme Court put it, ‘biological sex.’ A GRC does NOT change your sex for the purposes of the EA2010. Therefore, the EA2010 no longer considers a trans woman to be a woman (or a trans man to be a man) for the purposes of sex.

Gender reassignment is the protected characteristic of being trans and having taken any steps toward transition. Medical stuff counts but so do pronouns. Non-binary people count. [2.36-2.48]

That seems pretty bad. Why is this?

That’s a very long and political answer but basically: the Supreme Court made a terrible decision last year that redefined the characteristic of sex in the EA2010, and the government hasn’t bothered to legislate to redefine it in the EA2010 itself. Which would fix this. When you’re finished reading it, I beg you to go bother a politician.

Okay, but I’m a user of services and a member of associations and I’m worried now. What does it mean for me?

First of all let’s check you’re using a service (which can be free or paid), or joining/a member of an association (which has to be 25 people or more; have rules on admission; and have a selection process). A club, like an informal book club among a group of friends, with no admission rules or selection process, isn’t an association. A women’s gardening club of 30 members is.

I told you I was.

I’m a legal academic, I have to be precise. And you’re trans, right?

I am. I’m the imaginary trans woman you’re having this conversation with.

Okay. Let’s keep going. You can be discriminated against either directly (when someone treats you worse directly because of a protected characteristics), or indirectly. That’s a bit more complex, it’s where a service provider has a neutral rule or practice that ends up treating you less favourably. The example they give is an online booking system at a GP that should be accessible to everyone, but actually ends up putting older people at a disadvantage. You can also be discriminated against by perception. That’s when you’re treated less favourably because of the protected characteristic someone thinks you have.

Let me guess, the law lets people out of their obligations not to treat me less favourably sometimes.

Well, yes. If it’s a proportionate means to a legitimate aim, you can be treated in that way sometimes. But it is difficult to define the sometimes. A proportionate means, means ‘don’t go too far.’ And a legitimate aim means ‘and you’d better have a good reason for it.’

Unlike you law nerds, I have hobbies. I want to join a women’s competitive swimming team. Can I still do that?

I’m afraid not.

Why not?!

You’re going to have to bear with me through some transphobic language here, I’m sorry. It’s because the EA2010 defines swimming as a ‘gender-affected activity.’ The Code of Practice says that’s where “an average person of one sex would be at a disadvantage as a competitor against an average person of the other sex due to their physical strength, stamina or physique.” I know that’s horrible binary and exclusionary language and I hate to be the messenger for it.

They now define a women’s team as cis women only, and if a trans woman joined the team it would become mixed-sex.

What about a trans man who wants to join a team?

He might be out of luck altogether, under this guidance. He would not be allowed to join the men’s team with cis men, and if for reasons of ‘safety or fair competition‘ the organisers wish to exclude him from the women’s team, they can do so. They can’t do so just because he’s trans, but they can if they think it would be unsafe or unfair for the cis women competitors.

This is bullshit, you know that, Sandra?

I do indeed.

What else have you got?

I’ve got about 20 pages on separate and single-sex services. I’ll summarise.

Separate-sex services are easy. The Code states: “It is lawful to provide separate-sex services if:

a joint service for women and men would be less effective, and
providing the service separately to women and men is a proportionate
means of achieving a legitimate aim.”

I get the feeling you’re holding back.

I am. I really don’t want to get in the single-sex service weeds.

Well, you volunteered to write this blog, and I want to know.

Okay, here we go. There are 6 conditions for single-sex services. Sex here still means ‘sex assigned at birth.’

If only people of that sex need the service
If a joint service isn’t effective enough without also providing a single-sex service
A joint service isn’t effective and the demand isn’t there to provide the service for the other binary sex (like a dv refuge)
The service is at a place like a hospital where users need particular care or supervision
The service is for more than one person at once and a woman might reasonably object to the presence of a man, or vice versa (changing rooms, etc)
Where there might be physical contact (like a carer’s duties)

And when you say ‘a man’ there…?

Yeah. ‘A person of the opposite sex’ also means a trans person who was assigned to the opposite sex.

Great.

I hate this almost as much as you do.

What sort of reasons can a service provider give for excluding me and other binary trans people in these situations?

It’s generally around the vulnerability of the intended service users. If people will be undressing, if they can’t leave easily, if it’s a cis women’s service about male violence, etc. The service provider does have to consider if excluding trans people is the best/most proportionate way of achieving their legitimate aim, but if they decide it is and can back that up to the satisfaction of a court, then it’s fine to do so. The proportionality of what they do also depends on the size of the service, like you can’t expect a tiny shop to put in a whole new bathroom facility but you can expect it of a mall.

Isn’t it a bit odd to make a trans man who looks very masculine use the women’s changing room, though? Surely that would make the cis women feel strange?

Oh yes. He can be kicked out if it might cause “discomfort or distress” to the cis women. They do say that it’s very unlikely to be considered proportionate to complete leave (binary) trans people without a toilet, though, although I appreciate that’s not much comfort.

What about non-binary people like you, Sandra?

Oh, we don’t exist unless we’re a useful example for shoving off to a mixed-sex facility like the weirdos they clearly consider us.

But how are the service providers going to know whether I’m trans?

Well this is the thing. If it’s proportionate and with a legitimate aim in mind… they can ask.

They can what?!

They can ask. Even though that’s private under Article 8 ECHR, they can ask. As long as they’re not rude or offensive, because that might be harassment. Examples of when they might ask include if they’re worried about your “physique or physical appearance, behaviour or concerns raised by other
service users.“

What if I tell them that yes, I’m trans?

They can ask you to leave the single-sex service or bar you from coming back.

What if I tell them I’m not?

They can still exclude you if they “weigh up the relevant factors” and decide you probably are – but they can’t rely on a passport, driver’s licence, or even birth cert to make that decision. So it’s sort of based on legal vibes.

I swear to god, you lawyers are the worst.

We really are.

Anything else I should know?

It’s still illegal to snitch that someone has a GRC, under s22 of the Gender Recognition Act 2004 – so if someone finds out that you have one, and they pass that information on, they’re committing an offence.

Super.

Sorry I can’t be any more cheerful.

Fair play if you’ve come this far. Questions to me on bluesky please – @sandraduffy.bsky.social

Go easy on yourselves this evening, this is all very distressing stuff and it’s okay if you read this in a few parts or not all the way through. It’ll be here when you’re ready.

Responses to the EHRC Code of Practice Consultation

These notes are being made by Dr. Sandra Duffy on 20th May 2025.

They are subject to update and change as time goes on and things become clearer.

They also may contain errors which are no-one’s fault but my own and which I am happy to correct.

They are intended to help people with filling in the EHRC consultation on their Code of Practice which began today.

Trans people should be aware that filling in the consultation might be difficult or distressing, as might interacting with the EHRC’s documents. You do not have to put yourself through this if it is too hard. It is better for the community that you are healthy and happy than that there is another response logged.

With an eye to the above, I would strongly urge allies to fill in this consultation instead, because you are less likely to be as personally or emotively affected by it. All answers are anonymous so your positionality won’t affect your answers’ validity.

These notes are not meant to replace a thorough read of the documents, which are here, but they can be used as a guide to it and a helper: https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-services-public-functions-and-associations

One thing you may note as you go through this is that there are not very many good or personal answers. We need to stick as closely as possible to the framing of ‘accurate/not accurate… but also!’ in order to get the responses read. All the personal responses that we can put in are not likely to be read and counted, because they’re looking for responses with ‘accuracy’ or ‘clarity’ in. So use that framing, and then say your piece.

There is a section at the end for ‘any other feedback’ in which you can put the personal things.

Massive thanks to Hafren from Trans Pride Bristol for reading through these as I wrote and giving constructive feedback on the places where I was unclear myself (ironically…)

Let’s get started.

The survey link is here: https://www.smartsurvey.co.uk/s/EHRC-code-of-practice-consultation-2025/

You’ll need to clarify that you want to give feedback.

It’ll then ask you some questions.

I suggest clicking ‘sex,’ ‘gender reassignment,’ and ‘sexual orientation’ under the list of protected characteristics.

The first question discusses ‘Changes that apply across the Code.’

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-consultation-2025-changes-apply-across-code

This means that the proposed change will apply to all instances of the term’s use across the Code of Practice. This is where they have laid out the updated definition of sex. It reads ‘legal sex is the sex that was recorded at your birth.’

It used to include the change of legal sex that comes with a GRC, but doesn’t any more.

The survey asks if you think the update is clear, and if there is ‘anything you would change to make this update clearer.’

I am going to reply: agree it is clear, and no, there is not.

Speaking legally, there is nothing unclear – specifically, inaccurate – about this statement (and we are, regrettably, speaking legally). If you would like to respond differently here, I would suggest:

It is unclear why the Supreme Court chose to remove the protection on sex discrimination conferred by a GRC from trans people.
Legal sex as conferred by the GRC leaves the trans person in a state where he or she is one sex for the purposes of equality law, and the other sex for every other purpose. This is unclear.

Just an interjection here – again, the questions are set in terms of accuracy and clarity. That means that we have to be careful in how we respond if we want the responses taken into account.

I can’t say I’m going to enjoy this as we go through, because my instinct is to tell them all the reasons I don’t like what they’re doing, but I am going to work with the assumption that we – the responders – want our responses to reach the Commissioners and not get thrown out by a Commission administrator.

Please feel free to answer any way you like, of course, and know I’m just writing this with that particular goal in mind.

The second question applies to ‘Changes to chapter 2.’

This section concerns Gender Recognition Certificates, sex at birth, and sexual orientation, and is here:

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-consultation-2025-changes-chapter-2

2.1. In this section they want comments on sections 2.1.6 to 2.1.9 only.

These sections are about the effects of Gender Recognition Certificates. They use the term ‘biological sex’ and say it is also referred to as birth sex. They say trans people are protected on the basis of gender reassignment as being trans, and from sex discrimination based on their birth sex.

You will be asked if you think this is clear and how you would change it otherwise.

I am going to reply: strongly disagree, and

‘Biological sex’ is a misleading and inaccurate term which does not in all cases correlate to the sex assigned/recorded at birth.

2.2. These sections are about asking someone’s sex at birth.

I am going to reply: strongly disagree, and:

Asking for information about birth sex is likely to be unnecessary and disproportionate in many cases, leading to possible Article 8 ECHR breaches. There is no way to know when it is a proportionate response. This leaves legal jeopardy for service providers and is unworkable.
There is no way to ask someone’s birth sex that is not ‘rude… or offensive.’
‘Genuine concern’ is a subjective metric and cannot be legally enforced.
The likelihood is if this section is carried through that trans people’s legal human right to privacy will be breached. I suggest it is not carried through.

2.3. This section asks about the definition of sex.

I am going to reply: strongly disagree, and:

‘Biological’ is a term which has no precedential or statutory legal definition in this jurisdiction, cannot be properly or sustainably scientifically defined, and should not have been used by the Supreme Court.

2.4. This section asks about the definition of sexual orientation.

I am going to reply: strongly disagree, and:

It is not possible to legally define or delimit the boundaries of a person’s sexual orientation.
This also removes protections for trans people in same-gender relationships and may interfere with the protected characteristic of gender reassignment.

The next question applies to ‘Changes to chapter 4.’

This section concerns sex discrimination by perception, and is here:

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-consultation-2025-changes-chapter-4

4.1 In this section they want feedback only on the example in part 4.1.3.

I am going to suggest you skip this one as it involves validating the misgendering of the trans woman in the example whichever way you answer it. Alternately, you could tell them that:

Holding that a trans woman is not a woman is a potential breach of Article 8 ECHR that could lead to legal jeopardy for service providers.
This example implies that only trans women who ‘pass’ can access indirect sex discrimination protections, while others cannot.

They may not listen to that, but, reader, there’s a long way to go and we need to get our shots in where we can.

4.2. This section concerns discrimination on the basis of pregnancy and maternity.

I am going to reply: strongly disagree, and:

It is unclear what case law was removed. Surely if the purpose is clarity, that would be referenced?
Repeat the bits around ‘biological’ from the above answers.

The next question applies to ‘Changes to chapter 5.’

This section concerns sex discrimination where there is a similar disadvantage between people who do not share the same protected characteristic, and is here:

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-consultation-2025-changes-chapter-5

5.1. They only want comments on the example in 5.1.3.

I am going to reply: strongly disagree, and:

If a trans woman experiences disadvantage ‘because she presents as a woman,’ this renders the whole paradigm of treating her as a man absurd.

The next question applies to ‘Changes to chapter 8.’

This section concerns harassment related to the protected characteristic of sex, and is here:

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-consultation-2025-changes-chapter-8

8.1 They only want comments on the example in 8.1.6b.

I am going to suggest you skip this one as it involves validating the misgendering of the trans woman in the example whichever way you answer it, or,

If a trans woman experiences disadvantage ‘because she presents as a woman,’ this renders the whole paradigm of treating her as a man absurd.

Shots, my reader. Shots.

The next question applies to ‘Changes to chapter 12.’

This section concerns membership of women-only organisations, and is here:

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-consultation-2025-changes-chapter-12

12.1. They want comments only on the example in 12.1.3.

I am going to reply: strongly disagree, and:

The example given is not clear and accurate because it is unclear how the women-only association knows the woman is trans. Finding that information out does not seem reasonable or proportionate for the purposes of most associations, and could amount to a breach of Article 8 ECHR.
Equally, this could potentially exclude cis women who are ‘thought to’ be trans by women-only associations because they are cis but gender non-conforming.

The next question applies to ‘Changes to chapter 13.’

This section concerns membership of sports and single-sex or separate-sex spaces. Buckle up, it’s the long one. It’s here:

https://www.equalityhumanrights.com/equality/equality-act-2010/codes-practice/code-practice-consultation-2025-changes-chapter-13

13.1. This section concerns competitive sport.

I am going to reply: strongly disagree, and:

This guidance is very dense and unclear.
The definition of a ‘gender-affected activity’ is factually inaccurate. There is no marker of ‘physical strength, stamina, or physique’ which would intake all trans women or all trans men, nor one which would differentiate every member of those categories from cis people of the same gender. Many trans people change the physical markers of their sex such as hormone levels to such an extent that they are indistinguishable from those of a comparable cis person.
There is no reason to assume that allowing a trans person to enter a sporting competition would compromise ‘safety or fair competition’ for the reasons above.
The example in 13.1.17 is very unclear. After the Scottish Ministers decisions, such an event would be counted as mixed-sex and therefore no cause for complaint for the cisgender woman in question would exist. Note that this respondent considers this decision to be in error of fact and law and therefore that they do not hold the viewpoint that the event SHOULD be considered mixed-sex.
There is no legal definition of ‘the physiological differences between men and women,’ and such a phrase would also not hold scientific merit.

13.2. This section is about sex-differentiated separate and single-sex spaces.

I am finding it difficult to argue that anything in this section is unclear in law, despite disagreeing with it all on a moral level. The text of the Equality Act 2010 has not changed, and the way the Supreme Court has interpreted ‘sex’ as ‘birth sex’ leaves this with less doubt than some other sections.

I am going to reply: don’t know, or agree, and:

Feel free to add in any of the remarks you’ve previously added about how trans women are women, I guess. Without going too into the weeds.

13.3. This section is also about separate and single-sex spaces, on justifications.

I am going to reply: strongly disagree, and:

Under the guidance laid out in section 13.3, a trans man cannot use the men’s room as it is not for people of his birth sex, but he cannot use the ladies’ room as he may cause alarm to cis women using the facilities due to his male gender. He is therefore without a place to use the bathroom.
The example in 13.3.12 where the trans people must use the accessible toilet is unclear on two grounds. Firstly, this is likely to cause disadvantage to disabled or other mobility-restricted users who require the accessible facility. Secondly, this is de facto segregation of trans people from cis people with regard to bathroom use, and is unlikely to stand up to legal challenge. I recommend that this is not used as an example and likewise that the guidance relating to it is rethought.
It is unfair and inaccurate to say that a service which is open to cis women and trans women ‘could… lead to unlawful harassment against women who use the service’ on a basis which is any greater of a risk than opening the service solely to cis women. Trans women have no greater likelihood of committing harassment against cis women than cis women themselves, and are frequently themselves the victims of harassment.

13.4. This section is about policies and exemptions on single-sex spaces.

I am going to respond: strongly disagree, and:

The example given in 13.4.3 is unclear as it implies that young boys are unlikely to pose a threat to women’s safety therefore they can be included, whereas the implied opposite is that trans women will pose a threat to cis women’s safety therefore they cannot.
The example given in 13.4.3 is inaccurate in that it states that the inclusion of a male child does not render the space mixed-sex, but the inclusion of a single trans woman would. (thank you @astridsramblings for helping clarify this thought)
Paragraph 13.4.8 does not offer any solution as to what the service provider should do in that case and it is therefore unclear.

13.5. This section concerns gender reassignment and separate or single-sex spaces.

I am going to respond: strongly disagree, and:

Paragraphs 13.5.3-5 leave trans people in a position where they are unable to use the bathroom for their ‘acquired’ sex, or for their birth sex if the service provider believes that that is a proportionate means of achieving a legitimate aim. This would have to be tested in court as to its validity; meanwhile, the trans people would go on having no facilities in the meantime. See note on 13.3 regarding making trans people use accessible facilities.
In section 13.5.11 it is implied that a trans woman would not need to attend a gynaecological service. Trans women who have undergone gender affirmation surgery may need to see a gynaecologist or a urologist. The example is therefore wholly inaccurate.

13.6. This section concerns communal accommodation.

I am finding little in here that I can define as legally unclear.

I am going to respond: agree, or don’t know.

The ‘any other feedback’ section:

Here is where you can put all the personal or other bits that you’ve been studiously removing from your answers.

Please be aware that you should only be commenting on the CONTENT of the Code of Practice, so the bits you’ve read and responded to, not the LAW.

However, this means you can talk about how it affects you or your loved ones or colleagues, etc.

Please try to be civil (but forceful!) in responding to this, as abuse will just be thrown out. It will only reach someone at the level of a back-office administrator and it won’t have any effect on them or on their bosses in the Commission itself.

P.S.: don’t enter your email at the end.

Thank you for reading if you’ve gotten this far! Please go and have a break now if you can, it’s been a long few pages.

And maybe give a trans person a little slice of cake, when you see them – or have one yourself if you’re trans. There’s been a lot to deal with lately.

Extra feedback garnered from the wonderful people of Bluesky!

@Astridsramblings adds: “Regarding 12.1 – do you think it’s worth saying it’s also unclear because it fails to elucidate when associations can lawfully be trans inclusive? Clear the EHRC think never but even the example seems to only say the association may reject the application, not that they must?

Taking orgs like the WI (unexpected bastion of progressiveness) who continue to want to include ‘anyone living as a woman’ or words to that effect – reading this guidance it looks an awful lot like they can’t, but unclear whether that is true or just EHRC deliberately choosing exclusionary example?”

@Harry-is-human adds: “An additional thought if I may – as a Public Sector worker any decision I make must comply with Human Rights Act. If guidance is vague or unhelpful about whether it had properly accounted for Article 8, it’s unworkable for me.”

White trans comrades, fix your hearts

I was at Trans Pride Bristol last weekend and it was good for the soul. One of the things that struck me was the willingness of speakers and organisers alike to call out the genocide in Palestine as an issue of interlinked liberation along with transness, queerness, disability, etc. As a mark of solidarity in a public forum, it was very good to see.

We need to understand our struggles as inseparable. The same ideologies which underpin transphobia also underpin white supermacy, misogyny, ableism, and the other oppression which seek to divide people along invented demographic lines. Two corollaries flow from this: it is possible to be multiply marginalised, at the famous ‘intersection’ of discriminations; but equally, it is possible to occupy a space in the kyriarchy where one is privileged in some ways and oppressed in others.

White trans and nonbinary people can sometimes be oblivious to this. A good example struck me today when a friend online pointed out the racism visible in a trans public figure’s history of comments. She was immediately deluged in replies from fellow white people who felt that addressing the public figure’s racism was sowing division within the trans community and preventing us from showing a united front.

At a time when the trans and nonbinary community is besieged from all sides, it is definitely vital that we are able to face the world as a strong ensemble voice – but that voice cannot be one which excuses racism or excludes our comrades of colour. The trans and nonbinary community know what it is like to be excluded and marginalised from mainstream society, and I think sometimes the more relatively privileged of us believe that because of this, we are exempt from being able to marginalise others. That is simply not true. In activist and academic spaces, white voices still ring out louder than the voices of Black and Brown people, Asian and Latino and Indigenous people. White people are still given more credence for our statements and more grace for our mistakes. White people are allowed to be learning and to behave problematically; people of colour are expected to arrive fully formed and unimpeachable, or they are excoriated. It is an unfair double standard which threatens to divide potential communities even further.

The trans and nonbinary community cannot continue to prioritise the feelings of white people over the safety of people of colour. Since the beginning of the era of colonialism, white people have imposed gender roles and strict hierarchical binaries on communities of the Global Majority, contributing to the marginalisation, criminalisation, and erasure of queer and gender-diverse people around the world. Colonialism is seen as a universal bad among progressive-thinking people in the current day and age, but we do not seem to see the ways in which our own behaviours replicate colonial logics. In the West, by which I mean majority-white countries like Europe and the Anglosphere, we are born and raised in a white supremacist society. We are taught tropes, norms, and ways of thinking which range from benignly to perniciously racist. Rejecting this is a lifelong effort. Our other marginalisations do not exclude us from the work of rejecting whiteness and its trappings.

The neocolonial mindset prevails when white people are the ones chosen to speak, and the ones who are most listened to. It prevails when the opinions of white people are privileged over the lived experience of people of colour. It prevails when we look away from helping those in need in places like Palestine, or from talking about them in ‘polite company’ with our friends or at work. It prevails when evidence of racism is brushed under the rug for the sake of a false united community front. It prevails, in short, when we act like – just because we are trans and nonbinary – we are somehow immune to the conditioning of white supremacy.

It is natural to feel reflexively annoyed when this is pointed out. None of us like to think of ourselves as racist. We are told that Good White People are not racist, after all, and who doesn’t want to think of themselves as Good? That comfort needs to be disturbed. White people are insulated from the realities of racism.

White supremacy is a practice of exclusion. It works in blatant ways and small ones. It hides in plain sight. No-one is immune. Our societies have done their work on us well. It is a life’s work to inculcate discomfort in oneself, as a white person, with the way things are set up for us. It is a life’s work to cede the space we are given by virtue of growing up white in this world. Our academic and activist spaces are all the poorer for the epistemic injustice that has been done to scholars of colour and of the Global Majority – the deliberate exclusion and diminishing of the knowledges and work produced by these scholars. Can you imagine the pluriversal world of knowledge creation and activist communities there could be if globally diverse strands of knowledge creation were respected equally with the white academy and white activist traditions? Can you imagine how many brilliant minds have been lost to racism, exclusion, and even genocide, in the recent past? How many people have turned away from contributing to their communities because of thinly-veiled hostility and ignorance?

Choosing to excuse racism is choosing the comfort of cooperation with white supremacist social norms over the wellbeing of our comrades. Don’t let that be you. I am working on not letting it be me.

Your life is not your own – R v Foster and the criminalisation of abortion

I write this post in the wake of the sentencing of Carla Foster, a British woman in her own right and mother of three, to 28 months’ imprisonment for inducing an abortion later than the legal gestational limit.

It is clear even through the unsympathetic tone of the sentencing remarks that Foster was desperate. In the middle of the strictest lockdown, when access to medical services was rare and difficult for non-COVID, non-emergent situations, she became pregnant for the fourth time, and panicked. The judge highlights her internet searches, increasingly stressed. The clock ticked. The legal limit of 24 weeks approached. Foster kept asking questions. “”[H]ow to hide a pregnancy bump”, “how to have an abortion without going to the doctor” and “how to lose a baby at six months”.” No-one was there to answer. She was living with her estranged partner and pregnant by another man. She was alone with the internet and the internet told her what to do.

In her frantic state, she phoned BPAS and lied about her pregnancy. She obtained abortifacient medication, mifepristone and misoprostol. She took the meds and miscarried – a stillbirth. She named the baby Lily. She lied again to the paramedics and midwife. Then she realised she needed to talk to the police. Now she is in prison.

I am horrified by this case and by its ramifications. Foster has three living children, one of whom has special needs. She will serve at least fourteen months. Those children are without one of their parents for over a year. The intimate details of a woman’s life are scattered across the world on the global news. Private medical decisions and personal anguish broadcast. Desperation, punished.

What I am most haunted by, though, is the surveillance of Foster’s internet searches. The internet can be a refuge or a last resort. When Foster asked Google how to abort a pregnancy at an advanced stage, one imagines that it was because she had no-one else to ask. She seemed to realise the gravity of her situation and the potential illegality of her actions. But she confided in the all-knowing internet, not in people, with an expectation of privacy and maybe a faint hope of an answer.

The law is a blunt instrument. We know this. Despite our tendency to anthropomorphise, we know that the law does not have feelings and cannot manifest compassion. The humanity of the law, if there is any, comes in its application. There was no such compassion shown here. The law stretched its tendrils into the private life of Carla Foster and exposed her to the world. The people involved in implementing the law applied it straight and true. The law is a blunt instrument.

This is not a post about the legalities of the Foster case. Nor is it a post about the morality of late abortion. This is a post about how criminalisation of a person’s intimate decisions and thoughts affects not only the person themselves, but all of us. This is a post about digital surveillance of the embodied mind. It’s about what it means to be a mind and have a body, or have a mind and be a body. It’s about autonomy and freedoms and how legal regulation closes those down like a steel trap with temporal boundaries on bodily processes. It’s about a woman, and a foetus, and the law.

Abortion is one of the most personal decisions a person can make. To allow another entity to grow inside you, or to stop that growth, is a decision taken at one’s very core. It is a decision of fullness and emptiness, obligation and freedom. The criminalisation of abortion in law is a relic of a time where women and pregnant people were not seen as having autonomy over their own embodiment. We think we are more enlightened now, and yet Carla Foster is in prison. We think we are free, and yet the law says otherwise. We think we can express our thoughts into the void of the internet, and yet the law will bring them back and lay them out for the world.

This post is a vent for feelings, really. There are half-formed thoughts in here which may make it to a paper someday. I am writing because I am sad. I am sad for Carla and her family, and I am sad for the pregnant people of Britain and Ireland and everywhere else where full decriminalisation of abortion has not happened yet. I am a lawyer, and the law feels alien to me today. I grapple with systems which I try to use for good and still I am reminded of the brute force of law on the lives of vulnerable people. And I am thinking of Carla, typing, seeking, begging.

I am sending these words out into the internet, for better or worse.

Freedom of expression is not freedom from criticism – a response to the UNSRVAWG

The conflict of human rights is not a new idea. Rather, discourses about the delicate balance which must be struck between the limitation of one right and the protection of another are as old as the notion of human rights itself; the right to swing one’s fist, it’s said, ending just in front of another’s face. Except in very few cases, such as the protection of life or freedom from enslavement, human rights are ‘qualified’ – that is to say, they come with conditions and responsibilites. This leaves them open to debate and to contestation as to where exactly the limits of the right lie.

Freedom of expression is one such contested right. A qualified right under regional and international human rights law, it is allowed to be limited for the sake of “the rights or reputations of others… the protection of national security or of public order (ordre public), or of public health or morals” (Article 19, ICCPR) and “in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” (Article 10, ECHR).

The idea of restriction of free expression for the protection of the rights of others, therefore, is not a new one either. Indeed, it is canonical in international human rights law.

Which brings me to the reason for this post. On 22nd May 2023, the UN Special Rapporteur on Violence Against Women and Girls (UNSRVAWG), Reem Alsalem, published a statement in which she decries “the escalation of intimidation and threats against women and girls for expressing their opinions and beliefs regarding their needs and rights based on their sex and/or sexual orientation.” (Alsalem, 1) What the SR is referencing here is the pushback against so-called “gender critical” views, which range from denial of the rights of trans people to be treated socially as their affirmed gender, to the “reduction” of the trans population (which has been compared to genocidal rhetoric).

“Gender critical,” which I surround with quotation marks, is therefore a polite way of saying “transphobic,” something which many adherents to the philosophy vehemently deny while continuing to act in transphobic ways. I prefer, and will continue, to use the terms “anti-gender/anti-trans views/actors,” as I believe they are more accurate. Likewise, what we agree to call something gives life to that thing, and accepting the terms on which another defines their views gives legitimacy to those terms. I do not accept “gender critical,” therefore, nor do I accept that anti-gender views can be summed up as referring only to the needs and rights of cisgender women and girls.

The rights of women and girls – all women, trans and cis – are vital. This is not up for debate. However, when the SR refers to women and girls, she is referring to “women born female,” or cisgender women and girls. She is concerned with the right to expression of women who wish to “emphasize the specific needs of women born female and who call for and engage in discussions around the definitions of sex gender, and gender identity and the interaction of rights derived from these for rights holders in any given society.” (Alsalem, 2)

It is not debated that the right to expression of those who hold anti-gender views exists. Society includes persons with many views which we may find repugnant. However, when the expression of those views impacts on the rights and dignity of others in society, the qualification of the right becomes important.

The political climate around gender identity and gender diversity is highly toxic. Opposition to trans rights continues to climb both at social and political levels. The UN Independent Expert on Sexual Orientation and Gender Identity last week produced an end-of-mission report on the United Kingdom which stated that “civil society and public officials informed the Independent Expert that… abusive rhetoric by politicians is trickling down and facilitating increasingly abusive and hateful speech in the social media, which in turn seems to be spurring rapid increases in the frequency of bias-motivated incidents of harassment, threats, and violence, including rampant surges in hate crimes.” (Madrigal-Borloz, 25). This social media rhetoric is visible to anyone who is a regular user of Twitter, where any trans-positive statement from individuals, media, or political figures, is almost always swamped by transphobic replies. Equally, and particularly in the UK, it is regurgitated in the print media, where columns in leading newspapers frequently decry the inclusion of trans people in sports and social areas such as women’s bathrooms.

Alsalem chooses to couch this political, contentious, and even violent speech in the language of “rais[ing] concerns regarding the scope of rights based on gender identity and sex” (Alsalem, 2). This implies a civil debate on a contestable topic, not – as the reality shows – the questioning of the rights of a vulnerable social minority. As O’Thomson has written, “‘Let Women Speak’ [a well-known anti-trans series of rallies and a gathering twitter hashtag for anti-trans advocates] claims to be centred on women’s rights. In reality, the ‘women’s issues’ they focus on do not concern the right to reproductive justice, freedom from domestic violence, or period poverty – they are unified around a vilification of trans people, and our right to exist peacefully in civil society.”

So too with the UNSR’s statement, which focuses only on the rights of cis women to question the inclusion of trans women in women’s spaces. The UNSR, who has previously stated that lesbians need “a life where they can to enjoy [sic] single sex social spaces and where this aspect of their identity based on their #sexualorientation is respected and protected,” and that she “do[es] not share [other UN experts’] position that there is a human right to acquire a gender identity through unregulated self-identification,” is clearly indicating support for anti-gender rhetoric in her statement.

As the UNSR herself admits, this is not a position shared by her colleagues at the United Nations. From the Human Rights Committee to the other Special Rapporteurs, there is a consensus on the rights and freedoms of trans persons to live in their affirmed gender and to partake fully in the social life of their country, from obtaining a corrected birth certificate to living free from violence and discrimination. Indeed, the existence of the office of the Independent Expert on Sexual Orientation and Gender Identity, Victor Madrigal-Borloz, shows that gender identity is considered by the UN as a characteristic worth protecting. Madrigal-Borloz has stated that “[a]nti-gender narratives defend a world of absolutes that must be challenged if human rights are to be enjoyed universally.”

I therefore put forward that the kind of speech to which the UNSR is referring is neither harmless nor uncontested, nor can it be seen as purely a defence of the rights of cis women and girls.

The logical and legal fallacies in the UNSR’s statement themselves deserve some attention. For example, she states that “Whereas counter-protesters also have the right to freedom of expression and assembly, law enforcement must ensure that this is not exercised in a manner that prevents women from exercising their rights to freedom of assembly and speech, whether through threats, intimidation, or use of violence, where women’s speech is effectively silenced by loud counter-protests. There is a positive legal obligation to protect women in such circumstances, including by keeping counter-protesters at a distance that is safe, and enables women’s speech to be audible.” (Alsalem, 1)

There is a human right to freedom of assembly, and to bodily integrity and safety. There is no legal human right to a certain decibel range, nor to audibility.

The UNSR is also concerned with the ‘silencing’ of anti-trans actors, whom she notes with concern are sometimes called ““Nazis,” “genocidaires” and “extremists”.” (Alsalem, 1) Aside from the notion that correctly labelling extremist views is something which a human rights expert disagrees with, I find it strange that the UNSR correlates the labelling of extremist views with “inciting violence and hatred.” She states that “According to international human rights law, freedom of expression should be protected unless it incites violence and hatred.” I do not disagree on that, but I disagree strongly on where the bar is set. For this author, questioning the level of human rights to be afforded to a marginalised population is far more likely to incite violence and hatred than labelling one’s political beliefs in a manner with which one disagrees. If that is the standard, then the bar is on the floor and name-calling becomes antithetical to international human rights law.

Lastly, I wish to take issue with the UNSR’s rejection of potential consequences for anti-trans speech, in which she includes “censorship, legal harassment, loss of jobs, loss of income, removal from social media platforms, speaking engagements and the refusal to publish research conclusions and articles.” (Alsalem, 2) Firstly, these are mostly actions taken by private organisations, which are allowed to set terms of service which set standards for the kind of speech they allow. Secondly, the UNSR states that “any restriction on freedom of expression should be carried out strictly in accordance with the human rights standards of legality, necessity, proportionality and to serve a legitimate aim.” I am not in dialogue with the UNSR, but if I were, I would invite her to consider why limiting the reach of those who advocate for the ‘questioning’ or criticism of the human rights of a marginalised population is not a proportional and legitimate aim.

Freedom of expression is a human right. But human rights carry responsibilities. If they are to be used in a manner against the social good, they can be qualified by states. Likewise, if someone uses their freedom of expression to endanger the human rights of others to be free from discrimination and violence, they may face social consequences or the rejection of their views. When the UNSR advocates for the voices of those who espouse “gender critical” or anti-gender views around the supposed ‘sex-based rights’ of cis women, she is utilising her freedom of expression in a manner with which many will disagree.

Dr Sandra Duffy is a lecturer in law, specialising in international human rights – a subject in which she holds a PhD in gender and rights. She is frequently asked by those who disapprove of her to name the people who let an idiot like her teach law, to which she replies that it was several top universities at last count, but that her views are individual and do not represent those employers. She does not read the comments on Twitter.

On troubled times

“I’m in a bad place right now. Not mentally – just the UK.”

Trying to find words to write at the minute and I am reduced to that old joke. Not that it rings at all funny any more – it just sounds the dead knell of worn truth. We are in a bad place right now.

It is a strange time to be a researcher on trans law. It is an even stranger time to be someone who flits and flirts at the edge of gender. As a cis-passing person, they are not coming for me yet. But as a genderqueer person, my community is screaming, drowning. The attacks are coming from all sides and it is a rare day that something new and horrible does not come down the political or media pipes.

From this writer’s point of view, this past year has been a time of separation from my work and my causes. I have been suffering from Long Covid, a legacy of a bout of the virus I picked up, ironically, on a work trip. For twelve long months I have been staring at the world as if through clouded glass – my senses dulled, my mental acuity all but deadened. For someone who lives through their mind and their words, it would have been torturous had I been able to feel acutely. In reality, though, it has felt like a combination of a new grief and an old bruise.

In such a numbness, then, I have watched the things being done to the trans community here and abroad. I have watched the rising voice of the anti-gender conservative movement across legacy and new media and, somewhere in the back of my mind, I have been afraid. I have sat staring at my computer for hours trying to dredge up words to counter it, and failed. I have been failing over and over.

I am trying not to fail any more.

I am trying to feel again.

I am trying to contribute.

My work, such as it has been, has been leading me down the path of studying anti-gender actors. I don’t really want this to be my path, if I am honest – I prefer to think about making things better rather than the people who make them worse. But I would like to know more. I would like to better understand the political currents flowing through the anti-gender movement. I know they are motivated by hate and fear, but there are other factors. Money, religion, a drive for purity. Racism, too, and misogyny. But mostly hate and fear.

I don’t know how to counter the hate, or the fear. But I am a researcher, and I can try to pull things into the light somewhat. I am a legal academic and I can show where they twist and break the law. I am a human rights lawyer, and I can argue for the rights of my community.

It’s been a long year.

But I’m back.

On anti-gender actors

My research of late has led me down the rabbit hole of investigating global anti-gender movements, whether they be motivated by religion, conservative politics, or a specific anti-trans bias. These actors, some of whom would consider themselves left-wing or even feminist, are united in a battle against what they term “gender ideology.”

Gender ideology has become a watchword for a certain regressive view of gender. It encompasses everything from transgender identities to sexual orientations to non-traditional family forms, and has been extended by right-wing commentators to include sexual and reproductive rights in some cases. As Graff and Korolczuk (2021) write, “gender” is “the right’s name for what the left calls sexual emancipation, modernization and equality, except that, of course, conservatives view the resulting freedom as a form of enslavement.”

The anti-gender movement – for that is what it is, a conservative transnational and transideological politico-religious movement – stands for the preservation of cisheteropatriarchy, a form of hegemonic ideology rooted in patriarchal standards and upholding the stable, bounded identities that make up traditional notions of heterosexual and cisgender identities and family forms (see Butler, 1990, on the heterosexual matrix, and my continuation (Duffy, 2021) in developing the cisgender matrix).

The development of gender theory poses a threat to the social stability that anti-gender actors prize above all. Gender theory is a theory, not an ideology: it gives us a vocabulary to describe a certain set of social dynamics. It describes; it does not impose. Gender – and the observable expression of personal gendered characteristics – existed before Judith Butler began their career in academia, after all. As far back as the 1920s, the Irish/British magazine Urania was positing a world where dyadic sex division did not exist; countless societies around the world have had gendered identities which do not correlate to sex characteristics for hundreds if not thousands of years. The social constructionist view of gender allows us to theorise the workings of these social dynamics.

Anti-gender activism is an ideology. It imposes a certain world order and actively campaigns for the suppression of things it considers threatening. In politico-religious conservatism, the heterosexual, cisgender, patriarchal family is the basic unit of society and is considered to be the natural, essential way in which society organises itself. The concept of gender destabilises this order. For a political demographic who prize order and authority, this is earth-shattering. Society has, in their view, been rocked by revelations of gender as mutable and fluid; of gender roles as constructed based on iteration and performable by anyone, rather than inextricably linked to biological physical characteristics.

Hidden beneath expressed concerns about bathrooms and sports teams from the nominal left, is this same anxiety for the preservation of immutability. This is the root of describing trans men as “confused lesbians” or “escaping misogyny”; it is the fear that underlies the exclusion of trans women from women’s spaces. It is an innately conservative anxiety for the world “as it once was” – except it never was so simple. Queer, trans, non-binary, third gender, and culturally specific identities have always existed. What the logical endgame of the anti-gender movement is, is the suppression of these identities into a cisgender, heterosexual frame in which sex is observed, not assigned; gender follows from a dyadic sex designation; and the boundaries of sexual orientation are clearly and strictly defined. The conservative religious elements of the anti-gender movement would go further: heterosexuality is essential, reproduction is key, and children should have two opposite-sexed parents.

Whatever the ideological background to one’s participation in the anti-gender movement, this is the movement’s end goal. It is not a new political force – anti-genderism has been seen in politics and law for decades. Strengthening and organising in the mid-2000s, as a “Vatican-inspired transnational rightwing countermovement against gender equality and LGBTQ rights” which “demonizes the very concept of gender” itself (Graff, 2020), it has picked up adherents from left and right. My research agrees with the analysis of Graff and Korolczuk (2021, op cit) that although it began in religious conservativism, it is now inseparable from political campaigning.

Anti-genderism has been seen around the world – in particular in Catholic strongholds (Vaggione, 2020) such as Latin America (Melo, 2021; Wilkinson, 2021), and Central and Eastern Europe (Valkovičová and Meier, 2020; Tranfic, 2022) – unsurprising, given that the Vatican has been one of the major drivers of the movement at international level. However, it is also evident in the rise of specifically anti-trans movements in places such as the United Kingdom (McLean, 2021) and the United States (Crasnow, 2021). My current interest is in how it impacts law reform processes at national and international levels and I am developing research on this impact for publication – watch this space.

Appearance before the Scottish Parliament’s Equalities, Human Rights, and Civil Justice Committee: Opening Statement

Yesterday (21st June), myself, Dr. Peter Dunne (UoB), and Dr. Chris Dietz (University of Leeds), appeared to give evidence before the Scottish Parliament’s Equalities, Human Rights, and Civil Justice Committee.

This is my (brief) opening statement from the Committee.

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Committee members, thank you for the opportunity to appear here today. I will be brief.

I am an international human rights law scholar, specialising in gender identity and the law. On that basis, I fully recommend a self-identification basis for the Gender Recognition Act reform.

I have worked on global and regional gender recognition law mapping and analysis. I co-wrote three editions of the ILGA World Trans Legal Mapping Report. Most recently I have completed an analysis of gender recognition laws in Europe, to be published next year.

The international movement in gender recognition law is toward depathologisation and self-identification. A non-medical, non-judicial, purely administrative process is the only approach endorsed by the United Nations Independent Expert on Sexual Orientation and Gender Identity.

Legal gender recognition should be accessible, affordable, and depathologised.

Legal gender recognition on a basis of self-declaration has already been acted in countries as diverse as Malta, Denmark, Argentina, and my own home jurisdiction of Ireland. Although highly polarised concerns have been aired in the UK around the possibility of allowing for self-identification, they have not played out in those countries.

There has not been abuse of the process or an unexpectedly large number of applications. There have not been widespread reports of abusive use of the process by cisgender men to access women’s spaces such as changing rooms or bathrooms. There has not been a sea-change in the number of cisgender women selected for sports teams.

Trans people know their own minds. They do not take the decision to transition, be it legally, socially, or medically, lightly. Young trans people too can be trusted to make their own decisions, especially if supported by their families. It is unfair to make them choose between pathologising their nature and respect for their autonomy.

The law needs to respect the human rights to dignity, equality, privacy, and autonomy. Scotland needs to respect its trans citizens. On that basis, I recommend that the Committee considers self-identification as the best option for legislation.

SCOTUS to overturn Roe?

Reproductive justice advocates have woken up devastated this morning at the news that SCOTUS (Supreme Court of the US) is likely to overturn Roe v Wade. Reading a draft opinion written by Justice Alito and leaked to Politico magazine, it seems that the conservative majority of the Court has at last achieved its long-standing goal of overturning the constitutional right to abortion conferred under the right to privacy in the American Constitution.

SCOTUS is the highest Court in the United States and there is no appeal against its decisions. They are settled law until a further Supreme Court modifies or overturns them. They cannot be altered by anyone else, including the government. Currently, SCOTUS has a conservative majority (thanks to the Republican administration of Donald Trump), with several justices, notably Coney Barrett J and Kavanaugh J, who are outspokenly anti-abortion.

The draft opinion, in the case of Dobbs v Jackson Women’s Health Organisation, begins by stating that “[a]bortion presents a profound moral issue.” While this is true, it has been settled law since 1973, when Roe was decided, that the constitutional right to privacy conferred a right to make decisions concerning abortion for oneself. Alito J takes a sceptical view of this from the beginning. The opinion is written from a constitutional originalist point of view, which means that it reads the US Constitution in a manner conforming to the views and outlooks of its authors. This is in contrast to a living instrument doctrine, which reads a Constitution or other legal document in terms of the present day.

Roe v Wade is a landmark case in American law. The decision that a woman or pregnant person’s 14th Amendment right to privacy conferred a right to obtain a legal abortion was momentous. However, the Roe Court also stated that the right to obtain an abortion was not absolute. In the interests of the potential life of the foetus, or the health of the pregnant person, the government of the State in question could put limits or restrictions on the right to an abortion. Many American States have done so and severely restricted the right to abortion through vexatious limitations on the ability to access the procedure. This has been challenged before the Supreme Court previously in cases like Whole Women’s Health v Hellerstedt (2013), which concerned excessive restrictions on doctors who could perform abortions in Texas. In WWH, the restrictions were struck down as being too limiting on the right to access an abortion.

Roe has been controversial from the beginning. Opposed profoundly by religious and anti-choice groups on moral grounds, its reasoning was also opposed by conservative or originalist legal commentators and legislators, who felt that Roe overstepped what could reasonably be read into the constitutional right to privacy. This is the view that Alito J takes in his draft opinion in Dobbs.

He states that “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.” (5) He believes that the right to abortion is a newly invented right which does not root in American history and is therefore not within the purview of the Court to institute via a living reading of the Fourteenth Amendment. He believes that the matter of legalising (or not legalising) abortion should be left to the legislators of each State, elected by the people. He also believes that abortion should be a special case with regard to rights, because it involves a “potential life”(32).

The removal of abortion rights from the constitutional right to privacy is not just devastating for women and pregnant people, but it is also worrying with regard to other freedoms based on cases moored in that right, such as same-sex sexual activity (Lawrence v Texas) and equal marriage (Obergefell v Hodges). Although Alito J’s opinion states that this ruling just concerns abortion and not other rights, he also says that rights based on the Fourteenth Amendment must be “deeply rooted in this Nation’s history and tradition.” (14) It is not difficult to see a future conservative SCOTUS using this logic to overturn other rights and freedoms belonging to women, LGBTQ+ people, or other vulnerable minorities.

If this is the final opinion of SCOTUS on Dobbs, it is a profound setback to reproductive freedoms in the United States. 26 American States have ‘trigger laws’ which are certain to come into action when Roe is eventually overturned (whether this is the deathblow or not, with the current make-up of the Supreme Court, it is more or less inevitable that a challenge to Roe will eventually win). For now, we wait and see when the blow will fall.

A Call for Trans Inclusion in Reproductive Justice (text)

Text of the response I gave at the Bristol Law School Centre for Health Law and Society conference on “Reproductive Expectations,” 27th October 2021.

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I am grateful to Ben and Sheelagh for the opportunity to speak on this issue today as it is both pressing and exceedingly topical.

This month, the pregnancy and abortion charitable organisation BPAS announced that it will not be using the term ‘pregnant people’ in its messaging, for the following reasons.

“From choice in childbirth to access to emergency contraception, our reproductive rights are undermined precisely because these are issues that affect women.”

“Women’s reproductive healthcare and choices remain regulated and restricted in the way they are precisely because they are women’s issues, sadly still bound up with heavily gendered and judgmental approaches to female sexuality, ideals of motherhood and expectations of maternal sacrifice, and the need to control women’s bodies and choices.

“If we cannot clearly articulate that it is predominantly women, rather than people at large, who are affected by this, we will find it much harder to dismantle a framework that today is still underpinned by sexism.”

I want to unpack this argument somewhat and take a look at the reasoning behind it. In doing so, I do not mean to ‘erase’ women or the very real effects of misogyny – they are factual and oppressive.

It is not untrue to say that sexism and misogyny underpin the restriction of abortion rights and the stigmatisation surrounding provision of pregnancy care. Historically, it has been understood that these were ‘women’s issues’ and were therefore relegated to the back burner, at best, by government and policy makers. However, now that our knowledge and experience of the complexities and forms of gender have evolved, it is no longer correct to say that these are solely ‘women’s’ issues.

Trans men get pregnant, give birth, and have abortions. Non-binary and agender people get pregnant, give birth, and have abortions. These are facts. A politics of reproductive rights which ignores these facts is exclusionary to this already marginalised population.

Reproductive rights are undermined because reproductive labour is not considered valuable. Historically, the undervaluation of reproductive labour has been entangled with misogyny. Women, and all people who can become pregnant, were seen as of inferior status in a male/female hierarchical sex binary. This arose from societal, religious, and overridingly, patriarchal power structures. The issue of women’s oppression is very real and continues to be a predominating factor in social life as we know it, whether that be through denial of abortion access, the shocking statistics on the prevalence and prosecution of rape, or the refusal to provide appropriate funding and access to childcare.

Reproductive rights are undermined. But reproductive justice seeks to undo that. Reproductive justice is a framework developed by Black American feminists in the mid 20th century, which seeks to centre justice, as opposed to rights. Rights are often viewed as individual claims against the state, or entitlements which are enacted by an individual agent. Justice is achieved when people are empowered to make decisions about sex, reproduction, and family life in an equitable society. It is socially and institutionally focused and is about improving the systems of life for everyone. Reproductive justice as a framework relates heavily to intersectionality theory, looking at the different factors which influence life and the matrices of oppression and discrimination which hamper the full enjoyment of equality.

I want to emphasise in particular that reproductive justice has a racial aspect, and came from the insights and experiences of Black feminists in a particular social context. Black people are still left behind in the provision of reproductive services and are frequently omitted from discussions around reproductive life. I give all credit to the exceptional feminists who developed, and lived, the reproductive justice framework.

I want, however, to consider reproductive justice in the context of trans life. Trans people are a minority within a minority, and pregnant trans people the most marginalised of reproductive labourers. The use of the language of ‘pregnant people’ has been dismissed and even mocked by commentators outside the community, for applying to a tiny fraction of the pregnant population. It has been said that the use of the term erases women, erases the misogyny inherent in the dismissal of reproductive labour. But the fact is, and it cannot be overlooked, that pregnant trans and non-binary people exist. Trans and non-binary people get pregnant, give birth, or have abortions. Trans and non-binary people need care pathways for reproduction. And it is not unfair for them to ask that we are inclusive in the provision of that care.

In healthcare institutions which systematically undervalue the lives and health of trans and non-binary people, the exclusive use of the term ‘pregnant women’ without the addition of or replacement of ‘and people’ is another signal that trans and non-binary people are an unvalued population. Let us say it again, to be very clear: trans people exist. The erasure of trans and non-binary people from reproductive healthcare services does not serve to make them not exist. All it does is exclude people from inclusive care at some of the most vulnerable moments of their lives.

Commentators, and organisations such as BPAS, argue that the use of additive – ‘women and people’ – or inclusive – ‘pregnant people’ – language would erase the unique oppression faced by women in and around reproduction. But trans people are de facto erased when law and policy refuse to use inclusive language. This is not a potentiality or a matter of abstract academic debate – it is real people who are not being recognised by the healthcare system and by us, the people with the power to influence law and policy. A refusal by us to use inclusive language continues the erasure of a population who need our support now more than ever.

This is, however, not just about language. It is about policy and healthcare provision. The trans healthcare system in this country is not just in crisis – it is in stasis. People are being denied transition related healthcare, from children who need puberty blockers to adults on years-long waiting lists for surgery. Recognition that trans people are people with healthcare needs is the first step – and a tiny first step, but a real one – toward reforming the healthcare system toward reproductive justice and autonomy for all.

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I ended with a call for academics and policymakers, and in particular, those involved in health law, to understand firstly that inclusive language is important, and secondly, that it is only the first step. Mindsets need to change. Trans inclusion in reproductive justice discussions needs to be active and a push needs to be made for substantive provision of reproductive and transition-related healthcare.

It is a difficult time to be working in trans/gender identity-related academia and in reproductive justice. It is hard not to feel like one is mounting a Sisyphean struggle. Solidarity from our colleagues and friends is so necessary. Please heed the call.