If you’re a trans person in the UK – love one, or even like one – then you will have already seen the transphobic guidance released by Equality and Human Rights Commission (EHRC): a cowardly release, late on a Friday night, following the significant rollback of trans legal recognition and protection in the UK by the Supreme Court last week. If you need an excellent primer on what the guidance does and doesn’t mean – and all its legal complications – here are two by TransActual and Good Law Project.

The UK is at a dangerous juncture, and the clock has been turned back on trans right. I thought, then, that as researcher and writer of trans history I should take the space to reflect on the history and beliefs driving both judgement and guidance – and what that means for us as trans people at this point of crisis.

The EHRC guidance – by saying that trans women are entitled to use neither women’s nor men’s facilities and spaces, and vice versa for trans men – are clearly stating their position that trans people should be barred from public life. They also – in the implied instruction that trans people, no matter how much they pass1 and/or whether they have a GRC2, must not be allowed to access the spaces/provisions of their lived genders – clearly state that trans people have no right to a private life: the privacy of our own medical data and the privacy of our own bodies, a right legally protected under the Human Rights Act of 1998.

What I find fascinating about this guidance is that, in this dual attack against both public access and personal privacy, the EHRC is also attacking the rights of trans people to be public about being trans. And I believe that this by design – taking us right back to another pivotal moment in UK trans history.

Before April Ashley’s disastrous and highly publicised divorce case in the late 1960s, trans legal rights in the UK existed in a deeply grey area. Whether a trans person could have their documents updated, and could live without interference as their true selves, depended on the usual factors – wealth, privilege, luck – but that was changed, the denial codified into law, by the judgement made by Judge Ormrod. He was tasked with deciding whether or not it was possible for Ashley to have been legally married to Arthur Corbett when she had been assigned male at birth. Ormrod ruled that it was not possible: that Ashley’s vagina was not a ‘real’ vagina3, and that therefore ‘real’ penis-in-vagina sex – the necessary consummation of marriage – was absent, and the marriage was void. With his ruling, Ormrod stripped trans people of the patchy recognition they had previously enjoyed, and declared that they would forever be the sexes they were assigned at birth.

HOWEVER. In Ormrod’s own judgement, he created a gap – a gender fail state. He decided that it was impossible for Ashley to have consummated her marriage as a woman – but, in that judgement, it was also ruled that Ashley could not have consummated her marriage as a man. For a trans person who had undergone medical treatments which changed or reshaped their genitals, neither ‘woman’ nor ‘man’ were available legal options. And, for all trans people, the social categories of ‘men’ and ‘women’ – what men and women were allowed to do – were closed to them.

I wanted to draw attention to this part of our history not only because of its direct parallel with EHRC’s guidance that trans people be barred from both the category of ‘woman’ and ‘man’ – and not only because I’m currently writing this history as part of my next book and my mind is very full with it – but because there is a reason for the creation of fail state, in both court case and guidance: punishment. EHRC’s guidance, the Supreme Court’s verdict, and Ormrod’s judgement are all punitive: how dare trans people think they have a right to all the normal parts of a normal life? How dare the freaks think that they’re equal to real people?

And – just as it did in the 1950s, 60s, 70s and 80s – this legal and social punishment comes with an additional sting, and an additional benefit, for those who believe trans people are sick fantasists, and that our movement is a social plague. If you’re a trans man or a trans woman – not gender-nonconforming (at least not in public) – who can pass, who just wants to get on with your life, who cannot detransition – what are you meant to do? Out yourself, and have no access, and no recourse? Or keep being trans a shameful secret, and hope to god that you’re never outed.

Don’t tell people
Don’t go on a pride march
Don’t wear a trans flag pinned to your jacket
Don’t talk about your life story on social media
Don’t advocate for yourself
Don’t advocate for others
Don’t show other people like you that they have the chance of an honest and fulfilling life

This punishment – from the EHRC, from the Supreme Courts – is designed to take us back to precisely what the medical and legal systems of the mid- to late-twentieth century pushed on their patients: a truly limited hope of transition, and then – for the lucky few – transition as a form of death: the necessity to leave everything behind and assume a new identity and a new life, and hope to god you can stay safe.

But, of course, those trans people were never safe, because the threat of outing was always there to keep them in line: the stick to beat them with should they ever dream of wanting more than the barest margin of acceptance conditioned upon secrecy.

Outing was used against celebrities – look at what happened to Caroline Cossey.

Outing was used against ordinary people – in everyday life, across the press as entertainment. It was the standard trans media narrative of my childhood in the 1990s – in newspapers, on TV – the titillation of finding the freak hiding in the midst of the normal people, and the excitement of punishing them with humiliation, ostracism, and the threats and realisation of violence.

That was the status quo, and a lot of people – a lot of people still with us, in establishment roles, deciding the laws and norms of our country – liked it. They wanted it to continue, and have done their best to return us to the conditions where that could become the status quo again.

Deny trans people access to public life, and we disappear. Deny trans people access to a private life, and we can do no longer afford to be public. Deny the contagion a chance to spread, and you can stop the trans plague altogether.

We have a choice now – us, as trans people, and all the people who love us (or even just like us) – do we allow this strategy to succeed? How much are we willing to put on the line – not only our words, but our actions – not once, but over and over again, over time – to make sure that we are not dragged back either into the closet or the stocks, but are free and safe to build our own lives – private and public both – with agency and autonomy?

I feel the justified panic in the air all around us right now. I’m trying hard to step back and think deeper and harder about what strategies this moment requires. I don’t have answers yet – but I’m working on getting some. A great many brilliant people are doing the same.

I hope, when we do, that we’ll have the forces to make it count.

The clock only ever moves forward.

Passing is a justifiable critiqued term/concept – but, also, necessary to discuss in this framework ︎The Gender Recognition Certificate is designed to give precisely the kind of medical, social, and legal privacy that both ruling and guidance claim to have overturned. We’ll see what happens in the courts and in practice… ︎Other vaginas crafted through vaginoplasty – even in the case of another woman assigned male at birth – were deemed to be acceptable. Ashley’s chromosomes were found to be XY – and, thus, her vagina to be ‘fake.’ More on this in forthcoming works. ︎