A very British victory for women

Admirably, he was no less clear that this was a legal decision, not the endorsement of a particular tribe, identity group or campaign. He also emphasised – as does the full 88-page ruling – that trans people are still, and always were, extensively protected by the Equality Act and the Gender Recognition Act 2004.

As Baroness Falkner, the chair of the Equality and Human Rights Commission, made clear on the BBC’s Today programme the next morning, much granular, practical work lies ahead, as public services, businesses, sporting facilities and other organisations seek guidance on how to comply with this judgment. There is no one-size-fits-all template: the adjustments ahead will require imagination, resources and goodwill. But there is now a clear basis upon which to proceed, delivered by the highest court in the land.

The question progressives should be asking themselves is: how did it get so bad? When did so many liberals forget that the essence of a pluralist society is the negotiation of conflicting rights? As Isaiah Berlin wrote, such collisions of values are not only “an intrinsic, irremovable element in human life” but “are of the essence of… what we are”.  

The fundamental error in this case was one of wilful blindness: the refusal of trans rights activists (TRAs) to acknowledge that there were two vulnerable groups involved in this controversy. On the one hand, trans people wanted, quite rightly, to be treated with dignity, respected in the workplace and elsewhere, and protected from harassment. On the other, women – distinguishing biology from gender – wanted their hard-won same-sex spaces and rights to be preserved. 

But the TRAs simply refused to recognise that such a conflict of rights existed. Anyone who contested this was a “TERF” (“trans-exclusionary radical feminist”), a bigot, a transphobe, a Nazi. It was routinely said that feminist groups trying to protect same-sex rights were, in fact, seeking the “erasure” of trans people (nobody was, ever). 

Biological women and their allies were accused of branding all trans women as predators, when, in fact, they were simply asking for the dignity and privacy of single-sex spaces to be retained. The fields of public discourse filled with swaying strawmen.

At the low point of the controversy, Stonewall, the LGBTQ+ charity, insisted upon a #NoDebate strategy; as if the discussion itself were intrinsically fascistic and “genocidal”. Such campaigners indulged in what I would call toxic compassion. They sought not to protect trans people but to force everyone to sign up to an absurdity: that a trans woman was literally, wholly and completely the same as a biological woman.

Many progressives made themselves look foolish: insistent, quite rightly, upon the primacy of science on questions such as climate change, vaccine uptake and nutrition, but airily dismissive of human biology when it came to the definition of sex. To speak of the physiological differences between male and female bodies, and the consequent power gap, was condemned as “biological essentialism”.

Unfortunately, all this coincided with the most intolerant, flame-eyed period of the “Great Awokening”, when true social justice was too often subordinated to ideological conformity; when there was far too much lazy invocation of “the right side of history” (which doesn’t exist) and too great an assumption by some of their own absolute moral rectitude. 

Trans people were woefully represented online by the noisiest activists, serving the algorithm rather than the vulnerable. Too many liberals were scared of saying anything that might attract criticism on social media or at work. The herd mentality was pathetic, a wretched case study of a broader cowardice.

In this context, the political scientist Yascha Mounk has correctly identified the “short march through the institutions” which meant, among much else, that gender ideology became, at great speed, the unchallengeable orthodoxy in public services, universities, charities, publishing, some media groups and companies chasing high “corporate social responsibility” scores. 

There was money involved, too. Having helped to secure marriage equality legislation in 2013, Stonewall chased a new business model with trans ideology at its heart, offering corporate partnerships to companies eager to drink – or be seen to drink – the latest flavour of Kool-Aid. The Guardian, especially fearful of losing advertising in the US, drove out award-winning gender-critical commentators such as Suzanne Moore and Hadley Freeman and then denied, against all the evidence, that they had been working in a hostile environment.

Most egregiously, the Gender Identity Development Service (GIDS) became a major revenue stream for the Tavistock and Portman NHS Trust in north London: incentivising its “gender-affirming” care and over-prescription of puberty blockers to children and young people. After the interim report in March 2022 of the independent review led by Hillary Cass, NHS England announced the closure of GIDS. 

In the 388 carefully argued pages of her final report last year, the former president of the Royal College of Paediatrics and Child Health showed that the medicalisation of surging gender dysphoria among teens was based on almost no respectable scientific evidence; took insufficient account of the part played by eating disorders, autism, child abuse and psychological disorders in the distress experienced by young patients; and that “for the majority of young people, a medical pathway may not be the best way” to “thrive and achieve their life goals”. In December, Wes Streeting, the health secretary, announced an indefinite ban on the prescription of this under-researched medication to under-18s.

As we audit the whole sorry saga, it is important not to forget the price paid by whistle-blowers and those who dared to challenge gender ideology in public. As Cass noted: “There are few other areas of healthcare where professionals are so afraid to openly discuss their views, where people are vilified on social media, and where name-calling echoes the worst bullying behaviour”. 

As always, there was an element of fashion in all this. Women’s rights were boring compared to the newest multi-coloured flag, the latest undebatable ideological claim. Too often, progressives infantilised trans people, treating them not as fellow citizens but as quasi-magical figures, enchanted unicorns in need of unique protection from the evil witches of the TERF forest; as though the women who simply asked that their existing rights be preserved were axiomatically cruel and reactionary.

Much of this was just silly sympathy-hoarding. But plenty of it was sinister.

It was downright wicked to declare that gender-critical opinion was a form of murder because it allegedly encouraged trans suicidality (“Do you want a live daughter or a dead son?”). Last year, Professor Sir Louis Appleby, who advises the government on suicide prevention in England, formally called for this appalling messaging to stop.

When I hear or read that trans people are anxious in the wake of last week’s ruling, I hope very much that the practical measures which follow, and the surrounding debate, will take full account of what Lord Hodge said about their undiminished rights and entitlements. Indeed, the court was unequivocal on this matter: “We consider that the [Equality] Act continues to have relevance and importance in providing for legal recognition of the rights of transgender people”. 

That said, I am equally mindful of the women who have faced vilification, harassment, physical attack, loss of livelihood, or other forms of cancellation simply because they believed in same-sex spaces and the importance of biological sex. 

I think of Maria MacLachlan who, aged 60, was punched and kicked in Hyde Park in September 2017 by the male-bodied trans activist Tara Wolf and instructed in court to use her attacker’s “she/her” pronouns; of the academic Kathleen Stock, driven out of Sussex University, after a campaign of intimidation that included the letting off of flares by masked trans activists outside her family’s home and the warning: “Fire Kathleen Stock. Otherwise, you’ll see us around”; of the nurse Sandie Peggie, suspended in January 2024 by Victoria Hospital in Kirkcaldy, Fife, after she complained about having to share changing facilities with a transgender doctor; of Jennifer Swayne, a disabled woman arrested by Gwent Police in January 2022 for putting up posters with slogans such as “Woman = Adult Human Female” and “respect women’s spaces”; of the barrister Allison Bailey who won damages three years ago after being harassed at her chambers over her gender-critical beliefs; of the Scots author Gillian Philip, sacked by her employer Working Partners for backing JK Rowling on Twitter; of the founders of For Women Scotland, the successful appellants in last week’s ruling, who have been inundated with death threats and misogynistic abuse since the Supreme Court’s judgment.

Sadly, I could go on and on. Worst of all, perhaps, has been the gaslighting of these women; the suggestion that they were making a fuss about nothing or that they were merchants of hate being justly held to account. 

My deepest disdain is reserved for those, especially in the political class and the media, who averted their gaze and steered clear of the fray. I have watched with dismay as journalists, academics and publishers, who I knew were privately appalled, held their tongue, all in the name of a quiet life. 

And I could only laugh when, immediately after the ruling, Downing Street rushed out to declare that “we have always supported the protection of single-sex spaces based on biological sex”. How stupid do they think we are? 

Does this government imagine that we have all forgotten Keir Starmer’s scolding of Rosie Duffield, when she was still a Labour MP, for saying that only a woman can have a cervix? “It is something that shouldn’t be said,” he insisted. “It’s not right”. Does the prime minister not remember the numerous occasions on which he said that a woman can have a penis? Where did “always” come from?

Careful blandness, righteous inaction and strategic equivocation: this is what truly paves the road to hell. We know this, because its gates have recently opened in America with the crassly transphobic measures taken by the Trump administration. 

Consider, for instance, the new ban in the US military, which declares, deplorably, that the “adoption of a gender identity inconsistent with an individual’s sex conflicts with a soldier’s commitment to an honorable, truthful, and disciplined lifestyle, even in one’s personal life”.

Yet this is precisely what happens when progressives curl up in their cosy echo chambers. It is no accident that one of the most successful campaign messages of last year’s election was “Kamala is for they/them, President Trump is for you”. This nasty slogan struck a chord because it chimed with the feeling of many voters that top-down ideology was being imposed upon them; that institutional elites were ignoring those they were meant to serve in the name of obscure radicalism.

The ghastly consequences are unfolding daily across the Atlantic. So I am cautiously proud that we have found a different way of resolving – or at least trying to resolve – this issue in the UK.

The mania of the TRAs got us nowhere and did the trans community no favours at all. Politicians dithered, appeased or hid. But the calm expertise of Cass and now the juristic wisdom of the Supreme Court have offered a path forward.

It is a path of civility, rooted in clinical experience and jurisprudence rather than ideology. It takes account of rights old and new and deploys calm and measured language to achieve clarity, but also to reassure those who feel vulnerable, disenfranchised or humiliated. It is the splendid opposite of the polarised, performative politics that is now so dominant, on right and left.

There aren’t many reasons at present to feel that Britain is leading the way – but this is one of them. It is how democracies survive and prosper. It plots a route out of screaming matches, virtue signalling and tribalism. It calls upon us all to be decent, adult, mindful of evidence rather than decibels, clicks and smug assumptions.

This is, in other words, that rarest of things: a moment of authentic opportunity. Let’s not squander it.