Dare to be different

Hungary
On Monday, the Hungarian parliament voted through a constitutional amendment which bans Pride events. Law enforcement authorities will be able to use facial recognition software to identify participants, who may then be fined. The amendment also recognises only two sexes, which will enable other gender identities to be denied.

This follows executive action taken by the Hungarian President, Viktor Orbán, to block same-sex couples from adopting children and to ban the mention of LBGTQ+ issues in school education programmes.

The official reason for these restrictions is to prioritise the protection of children’s physical, moral and mental development against what is described as “sexual propaganda.” This is not what we in the UK civil service used to call “evidence-based decision-making.” With elections due soon, it seems more likely that the Orbán government is scapegoating the LGBTQ+ minority in order to mobilise its conservative base.

The developments have attracted domestic and international criticism, as an attack not only on minority rights but on dissent more generally. Katalin Cseh, a member of the Hungarian parliament and spokesperson for the opposition Momentum Party, said that the Budapest Pride march planned for the end of June would go ahead even if the President tried to stop it. And this would not be a one-off: her party would be protesting, organising, standing with those affected, all the time. As a former member of the European Parliament, she called on democratic allies everywhere to join them.

Trinidad & Tobago
LGBTQ+ activists are protesting against a recent regressive decision by the Trinidad & Tobago supreme court which upholds a legislative ban on anal sex deriving from the colonial law – the so-called “buggery law.”

In 1925, when Trinidad & Tobago was still part of the British Empire (independence came in 1962), a law was passed declaring buggery illegal. A high court judgment in 2018 removed the buggery law. The government appealed the judgment and it has just been reversed by the supreme court.

The case turned on the court’s interpretation of a colonial legacy known as the “savings clause.” The court upheld the view that any law pre-dating the constitution could not be challenged in the courts (for example because it violated human rights) and could only be amended by parliament. The ruling has implications for the interpretation of similar laws in other parts of the Caribbean.

LGBTQ+ activists intend to challenge the ruling in an appeal to the Judicial Committee of the Privy Council in the UK. It’s hard to understand how such an avenue can even exist following independence, but there it is. Some Caribbean countries have dropped the Privy Council and made the Caribbean Court of Justice their court of last resort. The activists will have to see whether the Privy Council takes a literal or modernist approach to the savings clause itself.

It is discouraging that the regressive driving force in Trinidad & Tobago is the country’s government. It’s bad enough having religious conservatives on your back, but now the state is against you as well. This may reflect wider social attitudes in the Caribbean, where the fight against discrimination continues on several fronts.

One approach taken by the activists is to urge LGBTQ+ people to get more involved in politics so that they can influence decision-making. Another is to promote collaboration with other minority groups. As one of the activists puts it: “The fight for the rights of LGBTQ+ people is a fight for equality for all.”

United Kingdom
Yesterday’s decision by the Supreme Court does not mean what the media and traditionalist women’s groups say it means. In particular it does not define a woman as only a biological woman. But its implications for trans women are serious nonetheless. So the context is worth restating.

The Gender Recognition Act 2004 enables trans people to apply for a Gender Recognition Certificate (GRC) which means they are regarded legally as having their acquired rather than biological gender. A GRC requires a mental health diagnosis of gender dysphoria. The legislation was introduced in response to a finding of the European Court of Human Rights that a trans person’s inability to change the sex on their birth certificate was a violation of their human rights. There are some exceptions, notably to protect access to some single-sex services.

The Equality Act 2010 prohibits direct and indirect discrimination against a man or a woman on the basis of a number of protected characteristics. These include gender reassignment and sex. It applies in a range of situations covering work, education, the provision of services, and membership of associations. The law does not define the terms “man” and “woman” and in particular does not state whether they mean biological sex or legal sex.

The relationship between these two statutes has caused a lot of debate. For current purposes this was crystallised by statutory guidance issued by the Scottish government in 2018, aimed at improving the gender balance on public sector boards and stating that a GRC changed a person’s sex for the purposes of the protections granted by the Equality Act. The campaign group For Women Scotland challenged the guidance and the case finally made its way to the UK Supreme Court. The court decided that the Equality Act protections for women do not apply to trans women with a GRC.

In legal terms, all this decision means is that trans women do not qualify as female for the purposes of sitting on public boards in Scotland. That affects only a small number of people. The decision does not change the general legal rights provided for trans people by the Gender Recognition Act 2004. And the court made it clear that trans people with or without a GRC remain entitled to protection against discrimination under the Equality Act 2010. But that did not stop politicians, media outlets and trad wives groups from describing the decision as “a victory for common sense” which could act as a springboard for further regressive legal changes.

Today the chair of the UK’s Equality and Human Rights Commission promised a statutory code of practice within months which would exclude trans women from women’s sports and from using women-only toilets and changing rooms. She added that the NHS would have to update its guidance on single-sex wards to ensure they referred to biological sex only. In relation to trans women, the chair said that they still existed, they still had rights, and these should still be protected. But that will be cold comfort for the many trans women who will face increased restrictions on what they can do and where they can go.

The backlash has already started. Tonight, the British Transport Police amended its policy on strip-searching to state that trans women arrested on trains would be searched by male officers. Under its previous policy, any arrested person with a GRC would be searched by an officer matching the detainee’s acquired gender. And it doesn’t take a genius to see that the next big campaign, in the UK and elsewhere, will be to repeal the GRC and other rights that trans women already have. This is rollback time, big time. Your very identity is threatened.

What can trans women and their allies do about this? It’s tempting just to sit by the wall and cry. Instead, follow the example of activists elsewhere, whose rights are also under attack: be active, make your voice heard, join with other minority groups, and protest while you still can. Or else the darkness will cover us all.

Tags: LGBT+