On 16 April, the UK Supreme Court judged that ‘sex’, in the Equality Act (2010), refers to ‘biological sex’, which they define as ‘the sex of a person at birth’. This has been welcomed by many journalists and politicians as clarifying, as providing necessary clarity: despite it being a highly specific and vexed judgment, it has been treated as an official state announcement that trans women are men and trans men are women. 

This sleight-of-hand has been demonstrated by Keir Starmer himself, who has repeatedly praised the ‘real clarity’ provided by the judgment, but only given one example of that supposed clarity: the idea that the judgment says ‘a woman is an adult female’. These words occur nowhere in the judgment; the judgment explicitly says that its role is ‘not to define the meaning of the word “woman”’ beyond a specific interpretation of the Equality Act. Yet this invented ‘clarification’ of how gender works has resulted in an onslaught of institutions falling over themselves to drop any pretence of trans inclusivity, from the British Transport Police announcing trans women will be exclusively strip-searched by male officers, to the FA and ECB banning trans women — who were already subject to heavy testing and surveillance — from their women’s football and cricket events.

‘Clarity’, here, is not being used to describe something actually being made clearer. There is nothing clarifying about someone’s assigned sex at birth representing the permanent truth of their sexed and gendered life in a world where people can change, and are changing, their sex. People widely understand that this definition is not socially workable. Aside from the real cranks, few people want to commit to a platform of openly calling Elliot Page a woman and Hunter Schafer a man, or indeed Brianna Ghey a boy; if asked to do this, most politicians of any party would cough into their sleeve and ask to go to the bathroom. Instead, they retreat to the abstracted safety of discussing ‘adult females’ and ‘biological males’, maintaining a ridiculous two-tier system of gender where trans people are provisionally allowed to transition to a new gender unless, and until, a cis person takes issue, and wishes to turn the object of their ire from a person in the world into a butterfly pinned to a corkboard.

But the invocation of clarity signals the use of a powerful anti-left tactic, namely the recently coined conservative idea of ‘luxury beliefs’. The right treats progressive assertions of human complexity as either candyland delusion or malicious deception, but they do understand that the liberal tenets of kindness, multiculturalism, and personal agency have good PR. (There aren’t many kids’ movies about how you can’t be whatever you want to be.) So, they offer a counternarrative in progressive terms: supporting trans self-determination might look like kindness, but it’s actually an elite project to suppress material reality in order to harm a more sympathetic group. The sympathetic group changes depending on what’s convenient. Sometimes it’s kids and grannies who might be fatally ‘confused’ by gender fluidity; other times it’s cis women and girls, who supposedly risk annihilation if ‘womanhood’ is not secured as a biological category. 

This is more than an assertion that trans people are ‘really’ our birth sex: it’s a call to punish trans people for looking and acting in ways that have sustained the ‘luxury belief’ that people can, in fact, change their sex and gender. Those who cannot pass as their birth sex are supposedly obfuscating the ‘truth’ that sex change is not real, and must therefore be pushed out of public life. This farcical move is clear in the Supreme Court judgment’s discussion that trans people of any gender may be reasonably excluded from both men’s and women’s facilities and services, from one because of their birth sex, and from the other because their changed appearance makes their inclusion unworkable. Presumably, they are being encouraged to either wait to use the bathroom until the Great Unisex Awakening or to avoid leaving the house. ‘It is a breach of human rights to leave people between genders,’ argued footballer and activist Natalie Washington in the New York Times. The Gender Recognition Act (2004) mostly prevented this kind of double exclusion by legally recognising and prioritising trans people’s ‘acquired gender’, but the recent judgment revives that prior state of being potentially excluded from both. 

Progressive movements seek to loosen centuries of inculcated prejudice about the ‘true nature’ of minorities. Conservative movements seek to consolidate that prejudice, and to appeal to a supposedly crystalline, intuitive, and biological human reality. Backlash against trans rights is of a piece with other antifeminist and racist movements: all begin with ‘you might not like it, but…’ and then present a litany of pseudoscientific ‘truths’ concerning the weakness of women, the violence and stupidity of people of colour, and the insanity of trans people. You can see the ‘luxury beliefs’ framing in both of these other examples as well. Racist scares about immigration and white birth rates promote, to white listeners, the idea that it was all very well being kum-ba-yah about race and ethnicity in some Obama-flavoured recent history, but that racism is actually a necessary tool to protect white people from mortal peril, and those who seek to dismantle it secretly want white people to die. (Similar claims have been made about transphobia as a threat detector; the trans panic defence relies on that idea.) 

This supposedly ‘clarified’ view is cobbled together from a confusing, self-contradictory mix of intuitions — the racialised other must always be simultaneously very weak and very powerful, for instance — but it markets itself as both a sobering return to hard facts and as a cathartic release from self-work. You’re not a dinosaur for retaining prejudices, they say; you’re a free-thinking evolutionary marvel, and you’re going to survive the race war! There are also more conciliatory appeals to nature in modern contexts: conservative influencers market tradwife aesthetics to women by extolling the relief and joy of accepting their natural femininity, which provides a clear path (marriage, kids, a cow maybe?) through the confusions and drudgeries of modernity. But all these movements do roughly the same thing: they argue that letting go of categorisation, hierarchy, and prescriptive ideas of biology would mean losing everything. There must be people who are clear, bright, and ideal, and there must be people who fail to be real, in order to prove the success of the real people. If everybody is compromised, then that would call into question why there needs to be an underclass at all. 

Laws can be made clear, but people cannot. The enforcement of sex assignation at birth on trans people cannot get rid of the living, warm, complicated reality of transness; it just seeks to make that reality unofficial, to deprive it of legal power, and to prioritise a supposedly intuitive and clarifying notion that birth sex should be all-encompassing. Conservatism always claims the territory of intuition, but intuition is neither reliable nor conservative by nature. The rhetorical power of the ‘single-sex space’ can be met by the power of seeing, in practice, how simple ideas of sex fall apart under the slightest pressure. Progressives must disrupt the appeal of a comforting false vision of human simplicity, instead encouraging an aversion to cruelty and to farce. And what could be more cruel, or more farcical, than seeing trans people partake in the changeability of sex, and punishing them for making sex look changeable?