So Sorry About Our Coach and Horses

The UK Observer says “neigh” to trans rights, chiding us for coming too close to driving and smashing right through equalities law

Horses by G.C., rainbow kablooie by Gerd Altmann, both from Pixabay

On April 16, the UK Supreme Court ruled on a major case, For Women Scotland Ltd v The Scottish Ministers, saying that trans people aren’t really members of our genders.

The Observer wrote an editorial on it, and I want to talk about that.

The Guardian

An editorial is the opinion of a newspaper as an institution, written by its staff. The Observer published this one four days after the Supreme Court ruling.

The headline is incorrect

To start with, the Observer’s headline “A dignified compromise that respects the rights of everyone” is laughable on two fronts.

No trans people were allowed to testify in this case. You can’t have a “compromise,” let alone a “dignified” one, if one party isn’t allowed to speak.

Them Magazine (April 16, 2025)

Secondly, experts have not yet figured out how ordinary people are supposed to interpret and act upon this decision. Saying that the ruling “respects the rights of everyone” is quite a leap if no one knows what anyone is supposed to do. Here on Medium, you can read legal researcher’s Jess O’Thomson’s current understanding (published by QueerAF on April 17) and sociologist Kaylin Hamilton’s reading (published by Prism & Pen today). On LinkedIn, London-based Pride in Education has raised concerns, while Australian barrister Ghassan Kassisieh offered some insights. Or you can just read the 88-page decision for yourself and see what you make of it. See if it’s quite obvious to you that it respects the rights of everyone.

Apparently trans people run over everyone else with a horse or two

The Observer resurfaced a lovely old metaphor:

The question at stake was whether “sex” means someone’s biological sex, or their “certificated sex”; in other words, should those who are male but who have a gender recognition certificate (GRC) be treated as a woman under equalities law?

The answer that the supreme court produced is no: because to do so would be to drive a coach and horses through Equality Act provisions aimed at protecting women, lesbians and gay men.

Got that? Treating a trans person as a member of our gender is tantamount to horse warfare on everyone who isn’t a straight man.

Horses by G.C., rainbow kablooie by Gerd Altmann, both from Pixabay

No, neither do I really know what that means, but let’s move on.

The Observer tells us the outcome

The newspaper lists the effects of the court ruling as if they’ll be uncontroversial and simple to execute. (They won’t be.)

“It is unlawful to operate single-sex services, hospital wards, changing rooms and toilets that are open to trans members of the opposite sex.”

The newspaper is telling us that the court says it’s illegal to run a business or organization in which you refrain from behaving as bathroom police and simply trust your customers to know their own gender. Instead you now must detect everyone’s true “biological sex” and help administer everyone’s genders. If one customer has a transphobic meltdown against another, as a practical matter you’ll have to side with the transphobic customer to demonstrate your unwillingness to allow anyone to self-declare their gender.

“Workplaces and schools must always provide single-sex facilities; other service providers can choose whether to, but not doing so might be sex discrimination.”

This means you can’t get out of the problem by marking all your bathrooms gender-neutral. You’ll have to provide at least two bathrooms, designate them for males and females, then police who’s using them.

“A hospital or care provider cannot honour a woman’s request to have intimate care provided by a female with a male professional who identifies as female.”

This means that if a woman requests a female doctor or nurse, the hospital has to fulfill that request by assigning a cis woman, never a trans woman, to care for her. But this entails not only that the hospital needs to know which of its employees are cis and which are trans; it also means the hospital will need a way to prove that employee’s sex to anyone who might doubt it, lest they sue over the suspected trans person. Oh dear.

Nurses by André Santana Design André Santana from Pixabay

“Lesbians and gay men can now run membership associations without being obliged to admit heterosexual members of the opposite sex who have a GRC [gender recognition certificate].”

The court has made this too easy for trans-inclusive people to mess with. 🤷 I bet there are a few same-sex-assigned-at-birth couples who are straight-appearing and who are ready to annoy these trans-and-bi-exclusive gay organizations by signing up for memberships, which, as this new court ruling has clarified, is their right.

“…trans men remain entitled to the same protections against pregnancy and maternity discrimination as other members of their sex, regardless of whether or not they have a GRC.”

It would be interesting to hear from a person who’s had two pregnancies, pre- and post-gender-transition, whether the “same protections” would have been adequate or applicable when they were perceived as a pregnant woman compared to when they were perceived as a pregnant man. I guess we’ll never know whether trans men have unique concerns about pregnancy and parental discrimination, since trans people weren’t allowed to testify at this court hearing.

“The judgment is also clear that trans people have exactly the same level of protection against discrimination, harassment and victimisation as other groups, which is exactly as it should be.”

Exactly the same level of protection — except regarding our genders given that our genders are no longer recognized and GRCs are worthless. If you are trans and you want to live according to your gender identity, this court ruling does indeed enable discrimination against you based on your trans status, i.e., because of the discrepancy between your sex assigned at birth and the gender in which you want to live. To view this as non-discriminatory against trans people, you must already assume the trans-denialist position that someone’s sex assigned at birth is the true and relevant indicator of who they “really” are and that gender transitions are invalid or meaningless. In contrast to that worldview, trans people generally find it self-evident that someone’s refusal to recognize our gender transitions is itself “discrimination” against our trans identities and experiences and that it culturally encourages our “harassment and victimisation.”

“It cannot therefore be represented as the rollback of rights…”

Yes it can.

“Instead, the supreme court has emphasised the balancing nature of the Equality Act, which adjudicates between the rights of different groups…the balance of rights had been pushed off kilter by campaigners insisting that trans women must be treated as though they are female…the law has in effect been rewritten by leaders and HR managers in response to activist demands…”

Which different groups are having their rights balanced? Men and women? Because apparently “trans” is not a category that has meaning under this court decision. Notice the use of the terms “campaigners” and “activist demands” to refer to trans people, shifting the emphasis off our gender and refocusing on the disparagement of our voices as inherently unlistenable. In this passage, the term “trans women” is used only to say in the same breath that they shouldn’t be recognized as women, which is (among other things) a subtle way of establishing in popular imagination, achieved through repetition, that the word trans means *fake.*

“…the bravery and resilience of the three grassroots feminists who set up For Women Scotland and forced this issue in front of the highest court in the land. Their fortitude has paved the way…”

So trans people are “campaigners” making “activist demands” that can only push “the balance of rights” off-kilter, while anti-trans cis women show “bravery and resilience” and “fortitude” even and especially when they “force” an issue into the court system. No trans person has ever been brave nor ever balanced anyone else’s needs. Got it.

“…for judges to provide this important reset that reminds organisations that their legal obligations are not just to one group, and they must take their legal duties to women as seriously as they do their duties to trans people.”

If organizations must continue fulfilling their existing legal “duties to trans people,” in what sense was there an “important reset”? My question is directed at the Observer’s editorial staff. Is it only cis women whose rights have been restored, and not trans people whose rights have been diminished? But why, then, does the Observer refer to a “balance of rights”? Has one side of the balance got cis women and the other side no one whosoever, so that no one who isn’t a cis woman has a valid complaint? (What is erasure?)

UK by Peggy und Marco Lachmann-Anke, balance by OpenClipart-Vectors, women by Agata, all from Pixabay

“…it is fairly evident what they [the policy solutions that accommodate everyone’s rights] should be. Service providers should provide gender-neutral changing rooms and toilets alongside single sex and accessible facilities to ensure trans people have spaces they can feel comfortable using.”

The newspaper is suggesting that everyone build a third bathroom. I wonder who will pay for this?

Given a need for accessible bathrooms, it might actually be a fourth bathroom. Civil rights lawyer and retired High Court judge Dr Victoria Helen McCloud has an upcoming gig as a keynote speaker. She reports that, the day after the court decision, the venue and the intended restaurant informed her she’ll be expected to use the bathrooms designated for disabled people. She says she isn’t disabled and doesn’t assume she has the right to enter a space intended for disabled people.

By the way, no, none of this ensures trans people’s comfort. Trans people were not allowed to testify about our comfort nor about anything else. Ensuring trans and nonbinary people’s comfort would involve talking to a critical mass of trans and nonbinary people. I have talked to a few myself, and my observations are that we will tend to feel comfortable continuing to manage our own genders rather than be forced to use an obviously transgender bathroom in all circumstances.

“Sporting bodies should adopt a fully-inclusive open category, which anyone can enter, alongside the female-only category necessary to protect fairness and safety in women’s sports.”

Again, the newspaper is suggesting the creation of a third category, this time a gender-neutral category, regardless of whether any athletes wish to play in it. Note that, if the sports organizations fail to create this category, they will have failed to “accommodate everyone’s rights,” according to the newspaper. If you’ve got only one person who wishes to play on a gender-neutral team, you’ve got to create the team for them, even though they are a team of one, because if you don’t create it then you haven’t accommodated their rights. That’s the Observer’s “fairly evident” solution.

“This is the dignified compromise that respects the rights of everyone.”

It is not, and it doesn’t.

A note about where to read the Observer’s editorial

The Observer has shared a parent company with The Guardian, hence the editorial appears on the Guardian website. However, last December, Tortoise Media purchased the Observer. Three days ago, the Observer and Guardian staff had a farewell party at a pub in Kings Cross, and in another two days, the transfer will be complete. The Observer’s new website is expected to launch at the end of the week.

Should the Observer editorial become unavailable, you may find it archived.