ONE OF the most extreme manifestations of woke ideology, and certainly one of the most controversial, comes from the support that progressive ideology offers to ‘trans rights’ and the lobbying and activism associated with the movement. Parties of the left and the law itself had moved to a position of regarding ‘the trans community’ as a group of people subject to unjust discrimination and mockery and therefore automatically deserving of special consideration and protection.
This understanding was put into law in 2004 with the Gender Recognition Act. This Act supported the right of individuals to identify as the sex of their choosing, and to some extent legally required others to accommodate and recognise that identity. But it also identified trans individuals as a special category of person deserving of extra protection within the law. In 2010 with the passing of the Equality Act trans individuals joined ethnic minority groups and the disabled as persons with ‘protected characteristics’ and as ‘vulnerable persons’ with a right to extra protection and support.
The Acts didn’t just protect trans from discrimination, it baked in the idea that their suffering was greater than that of others and that the law should be particularly keen to protect them.
This, like many other subjective decisions in modern law, like the general trend towards putting subjectivity and ideology into law rather than assuming that the law should be objective and fair to all, was a disastrous corruption of what the law is supposed to do. The law isn’t supposed to protect specific groups– it’s supposed to protect everyone equally. And the law isn’t supposed to be judged subjectively on feelings or thoughts, according to accepting narratives of victimhood or by politically identifying with groups and causes-it’s supposed to concentrate on actions, on crimes, interpreted the same way regardless of who commits them or who is the victim of them.
The only way you can offer justice to everyone is if the same laws apply in the same ways to everyone, and making some groups victim groups whose protection is prioritised over the protection of others shatters this real equality and real objectivity within the law.
In April, the Supreme Court made a ruling that suggested a return to objective reality and to true equality before the law. Rather than automatically considering the trans position as the one deserving special protection, the April ruling asserted (in contradiction of the 2004 Gender Recognition Act) that a person’s legal gender status matches objective reality. Persons may choose to identity as a different gender from their birth gender, but when the law refers to ‘man’ or ‘woman’ it is referring to the gender you are born with, to biological reality. This ruling finally offered some protection to women who objected to biological males who identify as women entering female-only spaces or female-only competitions.
The necessity of such protection was, in common sense terms, obvious – trans ‘women’ possessed of a penis offer a sexual threat to women and girls. One doesn’t have to assume malign intent to understand that there is a difference in capacity to cause harm involved here. The same applies to trans ‘women’ in female sports -when still possessed of a degree of ineradicable biological sex differences in strength and athletic performance, their presence increases the risk of injury to female competitors as well as giving the trans competitor an inbuilt and unjust advantage in competition.
That ruling, though, was deeply unpopular with trans activists and with many of their political champions. Horrified reactions confirmed the existence of a woke ‘hierarchy of victimhood’ in which previously championed groups (in this case feminists arguing for the protection of women and girls) found that their former leftist advocates became bitter enemies if they dared to challenge trans activism and the assumption that trans rights are more important than female rights. The hatred and death threats made to J K Rowling, the similar cancel culture reaction to Graham Linehan and his outrageous arrest at Heathrow airport for social media posts that offended trans activists, showed this contextual background of still fierce identification with the trans cause from both radicalised keyboard warriors and the British justice system. Linehan’s arrest showed us that the police were still acting subjectively on these issues, since current hate crime, public order offences legislation and the Online Safety Act all retain the disastrous idea that subjective offence is an objective harm that should be policed.
For both public order offences and online content, the current tyrannical approach to free speech has been enabled by British law stating that the perception of harm, the feeling of distress, must be treated as a real instance of crime. It’s this absurd notion that the current government has exploited to target dissent and that activist groups have exploited to assert power over other citizens.
And so we come to the Sandie Peggie case. The circumstances are easy to outline. On Christmas Eve 2023, Peggie, a nurse working for the NHS Fife Hospital Trust, entered the ladies’ toilet at the hospital where she worked. Peggie found Dr Beth Upton there. Beth Upton is a trans activist who is a biological male identifying as female. Peggie told Upton that men should not be in female changing rooms. Upton claimed distress and discrimination and reported Peggie to the hospital authorities (citing several other alleged claims of harassment by Peggie which have all since been dropped). Peggie in turn filed a claim of unfair treatment following her suspension, which has just been decided upon in an employment tribunal ruling.
Now the law, following the April Supreme Court ruling, should be clear. That ruling clearly stated that since the law considers all references to gender to refer to biological, birth gender, trans ‘females’ are not entitled to use female changing rooms and toilet facilities. Based on the Supreme Court decision, the suspension of Peggie was legally wrong, and the presence of Dr Upton in the changing room was also legally wrong. To have suspended Peggie and launched an investigation against her was legally wrong, since the law agrees with her that Upton should not have been in the changing room in the first place. Given the work and life impact of the suspension, it would also be reasonable to uphold Peggie’s claims against NHS Fife and Dr Upton in their entirety.
But this is not what the judge in the case has ruled. While upholding part of Peggie’s claim, and admitting that her suspension was wrong, the employment tribunal ruling also states that there is ‘nothing inherently unlawful’ in trans ‘females’ using female-only changing rooms. Absurdly, the judgement states that NHS Fife was right to take a side and back Dr Upton by investigating claims of discrimination from Sandie Peggie that Dr Upton could not substantiate. Even more absurdly, the judgement introduces yet another layer of subjectivity into the confused legal verdict it offers. It states that Dr Upton’s presence in the changing room was perfectly legal (and was rightly supported by NHS Fife management) until Sandie Peggie complained about it.
The ruling as a whole makes the UK legal position on trans use of female changing rooms utterly absurd. It makes that use both legal and illegal at the same time. It’s legal until somebody complains about it. Then it becomes illegal. Presumably the same would apply to trans sporting competitors, who would be legal to compete against women unless somebody complained. This is not how law is supposed to function. It isn’t supposed to be based on feelings and offence, and it isn’t supposed to change from one truth to another based solely on if someone complains. Stealing a car isn’t only a crime if the owner complains. It’s a criminal offence which is always a criminal offence.
This confusion derives from the judge seemingly wishing to offer at least some support for Dr Upton and for the trans cause, to put into a ruling that trans rights are to be treated with incredible respect and accommodation even if that renders your judgements both absurd and contrary to Supreme Court rulings. It exposes the legal quagmire thar comes when the system is still being administered and judged by those politically inclined to prioritise trans rights (the behaviour of NHS Fife, the employment tribunal’s contradiction of the relevant Supreme Court ruling). And it exposes the absurdities you get when subjectivity is now baked into legal rulings and the surrounding legal frameworks on discrimination and offence.
What this ruling suggests is both that anyone claiming subjective offence can bring a legal case that must be treated as if emotional reaction is the same as physical harm, and that judgements can decide a thing is legal if it doesn’t offend anyone and only becomes illegal when it does offend someone. The reasons for partly agreeing with Dr Upton return confusion to what the Supreme Court ruling had settled and will challenge the protections to females it had offered. In a way, it was the inevitable pushback we were bound to get precisely because the Supreme Court ruling offered a final and sensible judgement, one that our trans-aligned legal and political class didn’t like. Even more, it’s the kind of confusion that is bound to arise when the law as a whole continues to replace objectivity with ideology and equality with ‘equity’, with a deliberate push to protect some groups more than others even on the basis of purely subjective feelings.
The truth is that it’s not just individuals who have tried to radically transform themselves from one gender to another. The law itself, thanks to the ideologies of our ruling class, has also been transformed, and shows a deep and distressing level of confusion, still, on what it should be and what it is for.
