Transition – 10 years on By Robin Moira White, barrister, Old Square Chambers August 2021 marks 10 years since I became the first barrister to transition from male to female at the discrimination bar. Much has changed but not all for the better. Back then, the Equality Act 2010 was new and the profession was getting its head around the changes it introduced, not least on gender reassignment discrimination where the 2010 Act had removed the medical diagnosis requirement that the previous 1999 Regulations had required. The more recent loud arguments about self-identification of gender appear to have ignored the fact that the Equality Act has had self-identification of gender reassignment for over a decade now and the walls of Jericho have not fallen. Britain itself seemed rather different then. Under the coalition government, a confident Britain looked forward to the 2012 Olympics, LGBT folk knew that same-sex marriage was finally on the cards. How could we have predicted that we would find the country 10 years later I the hands of a rump Tory government, the first country ever to imposed trade sanctions on itself in which bigotry and hatred of minorities – one minority in particular – would be being validated by significant public figures. Cameron and Corbyn have much to answer for. But in ignorance of the changes to come I finally took the step of transition and on that Autumn Day walked into Chambers for the first time as myself. A good friend had advised me to get my story ‘out there’ myself and a piece appears in the law section of The Times written by Francis Gibb. Reflecting the changes to Britain, The Times was still under its last real editor, James Harding. My transition was delightful, with wonderful help from Chambers, professional colleagues and friends, and I got on with settling into middle age. The decade since has seen the rise of a number of unpleasant anti-trans organisations. They often have worthy-sounding names but are easy to spot if you look at the material they put on their websites and distribute. It is highly reminiscent of the anti-gay material familiar to those of us who remember the 1970’s and 80’s when Section 28 stalked the halls and gay men were said to pose a threat to children. Now trans women are said to pose a threat to women and girls and responsible public officials who should know – and act - better feel able to endorse statements suggesting trans people are ‘dangerous’. Strangely enough, the trans friends I have are lawyers, medics, entrepreneurs, and public servants and pose a threat to noone. When using the loo in Sainsbury’s
on a Saturday, I am there to ‘pee’ and for no other reason. But many trans people are deeply affected by the moral panic being whipped up with delight by the ‘nasties’ and their allies in the media. But Britain threw away its membership of the European Union based on scare tactics and innuendo, so why should this not be effective? There is an attempt to capture the language by characterizing being trans as a ‘debate’ and an ‘ideology’. It isn’t. It is a very real state of being. It would be amazing if I, as an isolated teenager in rural Somerset in the 1970’s had managed to invent the same ‘ideology’ as everyone else. Being trans can be really tough and those who wish to populate cyber-space with unpleasant anti-trans rhetoric might do well to take a moment to think of the consequences of their actions on real people. Fortunately, the position in the courts is rather different. Chambers and Partners were kind enough to describe me as the ‘go to’ lawyer for trans cases. I act for both employers and employees and have gently grown this as an area of my discrimination practice over the past decade. It is a source of pride that both ends of the trans issue spectrum have felt able to come to my conference table and receive objective advice about when the law really is. In May, with my wonderful Chamber’s colleague Nicola Newbegin and some top rank contributors we published ‘A Practical Guide to Transgender Law’ which we hope will establish itself as the leading text in the area. It seeks to be an accurate statement and explanation of the law as it is, not a campaigning book. One reviewer described it in the Employment Lawyers Association monthly magazine ‘Briefing’ as ‘authoritive, knowledgeable, objective and highly readable’. So we have one fan at least. I also speak regularly on trans matters. Trans has been keeping the courts busy and the so-called ‘gender critical’ groupings have made crowd funding of litigation their weapon of choice. However the results have been rather patchy. The Bell v Tavistock judgment which criticised the use of puberty-blocking drugs for trans children seems likely to be overturned by the Court of Appeal. A challenge to Equality and Human Rights Commission guidance on the Equality Act embarrassingly failed at the permission stage, and Prison Service policy on the treatment of transgender prisoners was upheld in the High Court. The Forstater judgment means rather less than Ms Forstater would have everyone believe and harassment of trans people
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in the workplace remains unlawful. In Scotland, where prospects for legislative reform are brighter, the inclusion of trans women on government panels has survived a legal challenge. Under the present UK government progress on discrimination rights is even less likely than a rapid return to EU membership but forward motion continues in the courts as represented by Taylor v Jaguar Land Rover last year which recognised non-binary (and by extension other complex) gender identities as protected under the Equality Act. An area to watch will be guidance for schools on dealing with trans children. This not an easy area and schools do need help. The England and Wales Equality and Human Rights Commission promised national guidance for some years. A well-written completed version was available but spiked by their unsupportive political masters who, it is reported, wanted something far less supportive of trans pupils but a version which achieved that within the law could not be achieved. The Scottish Government have had more courage and recently published excellent guidance and the Welsh Government is consulting on doing the same. This has left English education authorities isolated and many have been unwilling to bear the cost of resisting legal challenges by gender critical groups or parents. Oxfordshire withdrew their guidance believing the EHRC guidance was in prospect and a Welsh local authority have been a recent casualty. At least one local authority is, to my knowledge, standing ready to end this particular game of ‘whack a mole’. Several anti-trans groups publish superficially attractive schools guidance which when read can be summarised as ‘don’t support trans children’. Following these groups’ guidance would leave schools open to legal challenge. Not helpful. If the above all seems a bit ‘doom and gloom’ one area gives me hope for the future. I am privileged now to spend some of my time with law students and junior lawyers. The upcoming generation ‘get’ trans and complex gender identities and regard the opposition to recognizing such folk as rather odd. As they replace our current leaders I am sure the landscape will look rather different in 20 year’s time. We just been to survive the next ten. The one certainty is that there will be more litigation. Robin Moira White, barrister, Old Square Chambers
Robin became the first barrister to transition from male to female in practice at the discrimination bar in 2011. She practices in all aspects of employment and discrimination law and lectures regularly on the area.
