The Gist: Trans rights are Data rights

In the main I try not to intrude on issues that fall outside my personal well of experience or knowledge. The issue of legal recognition of the dignity due to trans people is one of those areas. But the last few weeks has seen that discussion veer directly into my patch. We have had two decisions from courts delivering two incompatible approaches to addressing trans people's lives.

One, from the UK, takes the classic Imperial approach of setting out rigid boundaries and then placing people on one side or the other of the borders they've drawn up. The other, from the Court of Justice of the EU (CJEU) starts, not with abstract rules, but from the individual's life and derives the way forward through existing rights and freedoms to what will do most good and least harm.

Of the two, I obviously prefer one over the other. Unfortunately, as we live in an Anglophone media space, the decision from the CJEU (originally issued in French and Hungarian) didn't get even a fraction of the decision from the UK Supreme Court.

The approaches differ and, as a result, so do the decisions. But both cases acknowledge one thing. The rights of trans people to live their lives (a modest expectation) are rooted in decisions on privacy and, more recently, in data protection laws and caselaw.

That's right, eventually every issue bursts into our Data Kitchen. Let's see if we can clean up some judges' mess for them.

Gender Borders, Policed

Once upon a time there was a thing called the British Empire. It was big, and it controlled the lives of millions of people and it was bad.

That last element is not a truth universally acknowledged, particularly amongst those who wish they could control other people's lives. Obviously the famines and looting of the colonised countries (starting with Ireland) were no fun for those living there. But a more pernicious and less noticed effect of Imperial power is that it changes and imprisons the minds of those in power at the centre, not just out at the edges.

Drawing borders on a map might make a fellow feel powerful and important. But to become a big important Empire fellow, you have to accept borders drawn all around inside your head too.

The key issue is that running an Empire requires strict binary definitions of things. At base, this means there are the colonisers and the colonised. It is critcal, if the Empire is going to justify its actions to itself, that the line between the two is constantly policed. If colonised people are actually just like the colonisers then the things done to them would be just like doing those, intolerable, things to the real people you know and love. That can never be thought.

So that's the first border of an Empire. Who are the rulers? Who are the ruled?

Oh dear. Because now things get more complicated. We have to start creating definitions of behaviours and characteristics of the rulers and the ruled so that we can both justify their oppression and our power over them. If we say we have to rule them -because they are feckless and childlike and require guidance like a parent- that means that we have to become constantly serious and grown-up. Joy is sucked out of our lives as the price of taking it away from other people.

Also, we've now defined our family lives as a mirror of colonial rule- parents now rule over children, as colonisers over the colonised. Sending infants to British boarding schools is intentionally designed like a miniature colonial posting, teaching subjegation of difference as much as conjugation of verbs. Or conjuration of potions.

Now the Empire is drawing borders inside families. Inside homes.

What if we define those colonised as being weak, of needing protection, even from themselves? If they are too emotional to govern themselves, while we are defined as rational? We go to work. They would lie about all day if left to their own devices. What if they are womanly and we are therefore manly? It looks like we've constructed models of oppression based on strict versions of gender behaviour between men and women.

The Empire is drawing borders inside our heads now. Real men and women must behave in a particular way, because we have said that if either gender is not behaving in that way it becomes like the colonised- the lesser races. Most importantly, men (because they rule) must not be womanly (it undermines that rule).

To step outside of those borders is to reject Empire's natural order. Being a gay man was always a threat to Imperial power- punishable by violence and possibly death- because it was a breach of those borders. A man from the centre of Empire could not behave like some native from the colonies (or like a woman, which was analogous). Oscar Wilde was not really imprisoned for being gay (he was Irish, and therefore Other already). He was destroyed for having sex with a Lord of the British Empire and the son of a Marquess.

The border had been transgressed.

Asking why British institutions are Like That when it comes to their responses to trans people is to forget the Imperial soil those institutions' roots have grown from.

Let's talk about sex, baby

“When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’

’The question is,’ said Alice, ‘whether you can make words mean so many different things.’

’The question is,’ said Humpty Dumpty, ‘which is to be master — that’s all.”

― Lewis Carroll, Through the Looking Glass

The judgment in For Women Scotland v The Scottish Ministers was a unanimous decision of all the judges of the UK Supreme Court. One of the reasons for this is that the question they were asked to determine was carefully circumscribed. They were not asked to determine 'what is the definition of a woman', as some careless reporting might have you believe. They were asked to draw borders around the edges of the use of the word 'woman' in a single Act, the Equality Act 2010. Paragraph 2 of their judgment is at pains to stress just how limited their decision is;

"It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010."

But the court does need to set out its boundaries at the start. If the question is whether a trans woman is a women in this Act, we'd better draw a border around what is or isn't a trans person.

"A person who is a biological man, ie who was at birth of the male sex, but who has the protected characteristic of gender reassignment is described as a “trans woman”. Similarly, a person who is a biological woman, ie who was at birth of the female sex, but who has the protected characteristic of gender reassignment is described as a “trans man”. - Paragraph 6 of the Judgment.

For the UK justices, there is always a bright boundary- reassignment or 'biological'- around a gender definition. No personal fluidity or uncertainty is acceptable in a court of calcified Empire. Ambiguity is literally outside the law.

The Court spends paragraphs 36-53 of its decision describing a repealed law, the Sex Discrimination Act of 1975, as part of its mission to decide what legislators mean by 'man' and 'women'. You might wonder what relevance the contents of legislators' heads as they were drafting laws half a century ago has, given that law has been repealed. That is not the sort of comment that gets you made a UK supreme court judge, laddie.

To no great surprise, the Court decides that the legislators of 1975 had not been thinking about trans people when they wrote their, now defunct, law.

Then it implicitly acknowledges that the UK has not had a stellar history of legislating for the rights of trans people. It was only after the European Court of Human Rights found that its refusal to recognise the gender as-lived of one of the UK's citizens (in the Godwin case) was a breach of their right to privacy that it passed a law to allow for trans identities to be recognised.

It is worth pausing there to note both of these facts. Firstly, that the UK state system, including the UK judiciary, completely refused to uphold the rights of the trans plaintiff. It took a trip to a European Court to get justice. And secondly, that the right the court found had been breached by the UK was the right to privacy. The plaintiff was not being permitted to live a private life, because the British state was constantly demanding that life was invalid. It was outside the permitted bounds.

Even after Godwin had been decided, the UK courts remained unwilling to see their strict borders crossed. Paragraph 66 describes a precedent decision post-dating the ECHR's judgment, on trans people marrying;

[The Judge] said that recognition of Mrs Bellinger as female for the purposes of section 11(c) of the Matrimonial Causes Act 1973 “would necessitate giving the expressions ‘male’ and ‘female’ in that Act a novel, extended meaning: that a person may be born with one sex but later become, or become regarded as, a person of the opposite sex”

The trans experience was denied. Novel, extended, meanings on being human were not to be allowed. Further, as noted in paragraph 74, the UK state will not recognise anything other than a male or a female gender identity. Even if a foreign state issues a certificate recognising a non-binary identity, the UK will not accept it. Everyone is to be on one side or the other of this defined line, which must not be crossed or blurred.

The Scottish Government pointed out to the court that the legislators were specifically thinking about trans people when they brought in the regime for gender recognition certificates. There was even an explanatory note in the Gender Recognition Act 2004 pointing out that the legislator's specific intent was to make it so the earlier 1975 Act would have its meaning changed.

I think the court's response to this unhappy counter-example, after harping on about legislative intent in the 1975 Act, is one of the most breathtaking pieces of judicial handwaving I've encountered.

"the Scottish Ministers drew the court’s attention to para 27 of the Explanatory Notes. The notes give as an example of the effect of section 9(1), that a trans man with a GRC would be entitled to protection from discrimination as a woman under the SDA 1975. In our view, this is a good illustration of why the use to which the courts should put explanatory notes is limited to the context of the legislation and the mischief to which its provisions are aimed: see Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956, para 5 and the passages from R (O) cited earlier. There is nothing in the notes to suggest that the department had undertaken the kind of detailed analysis of the effect of such a change on the operation of provisions of the SDA 1975, as amended by the 1999 Regulations, that we have undertaken in the following sections of this judgment before giving that as an example of the effect of section 9(1)." - Paragraph 81 (emphasis added)

When the legislators of a repealed law from 50 years ago were not considering trans people in their drafting and definitions of a man and a women, then we spent paragraph after paragraph on it. When a specific piece of legislation explicitly acknowledged an intent to define a gender marker inclusively, the court dismisses the legislators’ clearly stated intent, on the basis that they hadn't thought enough about the consequences of their actions.

Later the court returns to this push back against the intentions of elected legislators in Paragraph 101, saying they "See the force in Mr Cooper's [KC for a group called Sex Matters] argument" that there should be exceptions allowed for from the protections in the Gender Recognition Act 2004 which are not anywhere in legislation.

"... the carve out in section 9(3) is not limited to express statutory provision excluding the application of section 9(1) or to circumstances where that is a necessary implication"

They go on to define exactly when such an unwritten exemption from legislation might arise, in the Court's opinion. The Scottish Ministers had argued that it had to be given the most narrow definition, as one of strict necessity. The Court disagreed. It declines to be bound to a standard that would have prevented it from imputing

"what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included" - Paragraph 101

The context for this assertion that the court can know better than the legislature what's good for it is a sequence of paragraphs considering the UK legislative idea of 'living as a woman'. Paragraphs 87-93 go on an extended riff on the concept of 'passing', of living and dressing a certain way as evidence that you are living as a woman. This, of course, means that women could also be assessed against their adherence to this model of gender-approved behaviour. If there is a legal standard to live as a woman (which the court implicitly suggests ought to exist beyond having official documents showing you are a woman) it follows that all women are now subject to having their lives assessed against this standard.

Addressing an earlier judgment which had determined in favour of a trans person the court waspishly points out that;

"The Court issued a GRC. The Court did not therefore address the question whether, if AB’s evidence showed that she complied with the guidance because her official documents used female names and pronouns but that she did not “present” as female or occupy a stable female social role, she would have satisfied the criteria that she was living as a woman and that she intended to continue to do so." - Paragraph 93

If this judgment of the UK Supreme Court did nothing else, the complaint that there should be a set of criteria to measure women's behaviour against, to assess if they are sufficiently womanly, would make it an historically bad example of British Imperial thought.

Empire requires that women be womenly and men be manly. So too, still, does the Supreme Court of the erstwhile British Empire. In Paragraph 154 it asserts "clarity and consistency about how to identify the relevant groups that share protected characteristics are essential to the practical operation of the EA 2010."

In the end, at Paragraph 172, the Court tips its hand. Following the explanatory notes of legislators or limiting itself to only legislative interpretations of the text as written or even limiting carve-outs to the actual stated intentions of the Gender Recognition Act? It had to reject them all. Any one of these limits would get in the way of the Court's key cri de coeur.

In Paragraph 172, it describes a series of gender-affirming situations and groupings, a listing of open-minded acceptance and then responds in horror;

"We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group."

They can’t identify any good reason why the legislature should have intended this, you see.

This is not a decision of statutory interpretation. It is an ideological declaration by the heads of the Judiciary.

Data Protection: a right to be the main author of your own life

Let us leave the Imperial Court. We have tarried too long in its obsessions, which grow adhesively unpleasant the more one is exposed to them. Reading the UK Supreme Court's learnéd judgment, delivered unanimously, comes awkwardly close to the experience of being trapped listening to a bar room reactionary, demanding men cut their hair with a short back and sides or that women should only wear dresses.

In fact, we will probably return to that scene later, when we address the Cyclops and Bloom in the context of Sinn Féin's embrace of partition, so don't put it down too far away.

For now, we're leaving these western isles and heading into the heart of Europe. Specifically, to a big building off a motorway near Luxembourg airport, where the Court of Justice of the European Union lives.

On 13th March 2025 the CJEU, the top court in Europe for interpreting the effect on EU law, made a ruling on a case which had been referred up out of Hungary's courts- VP v Országos Idegenrendészeti Főigazgatóság. The case related to Hungary's predictably hostile treatment of trans people who were also seeking asylum. As part of its system, Hungary required that these applicants for international protection would have to have their gender recorded.

Here, from paragraph 15 of the CJEU's judgment, is the description of the facts of this case in a nutshell;

VP is an Iranian national who obtained refugee status in Hungary in 2014. In support of their application for that status, VP relied on their transgender identity and produced medical certificates drawn up by specialists in psychiatry and gynaecology. According to those certificates, although VP was born female, their gender identity was male. Following recognition of VP’s refugee status on that basis, VP was nevertheless registered as female in the asylum register which, in accordance with the provisions of the Law on the right to asylum, is kept by the asylum authority and contains identification data, including gender, of the natural persons who have obtained that status.

So far, so Orban's Hungary. However, although the case came out of Hungary, the decision of the CJEU applies everywhere, to all EU member states. And that application is immediate and direct, meaning that any national provision which existed or was passed in the future would be automatically nullified if it was in conflict with the EU law. This is the decision that states what Ireland, for example, can and can't do when it comes to gender identity.

So, quite a significant case on a hot-button issue. Let us just check on the multitude of Irish press comment about it;

Yes, I see. OK, well, let's see what we can do to make up for that oversight.

The CJEU knows where "Papers, please" ends

“No permanence is ours; we are a wave
That flows to fit whatever form it finds”

― Hermann Hesse, The Glass Bead Game

Unlike the UK judgment, the EU court is pretty succinct in its reasoning. There are three key passages to this judgment.

Paragraph 32 sets out the test for any Member State to apply when obtaining and then recording the gender of a person. That test is derived from longstanding and current data protection principles. The key focus is on the purpose for which the data relating to gender is collected. If the purpose is to identify the person, then it should "refer to that person's lived gender identity" not that assigned at birth.

it is for the referring court to verify the accuracy of the data at issue in the main proceedings in the light of the purpose for which they were collected and to assess, in particular, in the light of Article 81(c) of the Law on the right to asylum, whether the purpose of collecting those data is to identify the data subject. If that were the case, those data would therefore appear to refer to that person’s lived gender identity, and not to the identity assigned to them at birth. In such a context, contrary to what the Hungarian Government maintains, it is for the controller, in the present case the asylum authority, to take into consideration that person’s gender identity at the time of their registration in the asylum register, and not the gender identity assigned to them at birth. (emphasis added)

Paragraph 37 explains the logical consequences of this simple application of existing principles. If accurately recording gender (as lived) for the purposes of identity is either not addressed or specifically legislated against by a national law, that law is incompatible with EU law on Fundamental Rights (and therefore is to be set aside).

Thus, national legislation which prevents a transgender person, in the absence of recognition of their gender identity, from fulfilling a requirement which must be met in order to be entitled to a right protected by EU law such as, in the present case, the right enshrined in Article 8(2) of the Charter and given specific expression in Article 16 of the GDPR, must be regarded as being, in principle, incompatible with EU law (see, by analogy, judgment of 4 October 2024, Mirin, C‑4/23, EU:C:2024:845, paragraphs 53 and 60 and the case-law cited).

I said CJEU judgments were succinct. But one of the ways they manage this is to be very information dense. To expand on that paragraph a little- where a person has a right covered by the Charter of Fundamental Rights or any other provision of EU law and access to those legal entitlements is being blocked by a failure to correctly record their gender (in line with the definition at paragraph 32 above as being defined by "lived gender identity, and not to the identity assigned to them at birth") then whatever national law that is causing that impediment is to just be set aside. It is a dead letter. Every court, every state body, every individual official has to behave as it it didn't exist. That's the consequence of incompatibility with EU law.

Article 8(2) of the Charter is

data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

And the relevant part of Article 16 of the GDPR is;

The data subject shall have the right to obtain from the controller without undue delay the rectification of inaccurate personal data concerning him or her.

In other words, the CJEU, building on the earlier findings of the European Court of Human Rights' privacy law decision in the Godwin case against the UK, recognises that the issue of recognising, recording and otherwise processing a person's gender identity is an issue of data protection.

This is not a novel application of data protection law. It is exactly what the law has always been intended to achieve- it is a recognition that, all other things being equal, a person should be empowered to be the primary author of their own life.

Finally, for good measure, the CJEU creates an absolute ban on any attempt to limit a trans identity only to those who have undergone surgical reassignment.

The last paragraph of the Decision is;

a Member State may not, under any circumstances, by way of an administrative practice, make the exercise of that right conditional upon the production of evidence of gender reassignment surgery. (emphasis added)

And with that the EU's top court bound every Member State of the Union to a minimum standard they are to apply when processing data relating to a person's gender recognition. This is an EU-wide gender recognition law, based on people's lived experience.

And, unlike the UK Supreme Court, they didn't need to travel back half a century to justify their reasoning.

Sinn Féin demands Ireland follow Britain's example

The reaction to the UK's Supreme Court decision in Ireland was swift. Mostly this was because it was in large-print headlines throughout the UK media, which is the primary yardstick our media uses for the newsworthiness of any judicial event.

The most striking response was from Sinn Féin, whose health spokesperson, David Cullinane was at pains to hail its arrival, on X of all lamentable places;

Firstly, the ruling was not on the 'legal meaning of woman' outside of a single Act. See Paragraph 2 of the judgment quoted above, if you can remember that far back in your life. What is more striking is that the SF TD for Waterford thought he should welcome a decision of Britain's Supreme Court, hailing it as 'common sense judgment' and saying 'The ruling needs to be fully examined in this state'.

That last sentence is particularly baffling, as the only act the judgment applied to doesn't exist here. And even in the UK, the judgment didn't apply to the whole country- Northern Ireland is specifically excluded from this decision.

The next day, we had the form (but not the content) of an apology for this tweet.

This is a 'sorry you were offended' apology, which doesn't take back any of the substance of the policy position of the earlier tweet.

But then Páidraig Mac Lochlainn, SF TD for Donegal and the party's chief whip in the Dáil, felt the urge well up inside him to address the same question in an interview with Highland Radio;

You can see the full clip linked to for as long as notorious transphobe Elon Musk leaves it on X, the platform he owns.

Mac Lochlainn could hardly be clearer on his desire for the Imperial borders to be erected here. For the Donegal TD, matters must be defined by the clear binary between a man and a women and he expresses his demand that 'we're going to have to deal with the legislation in Ireland".

"this ruling does bring clarity...it defines in terms of equality legislation what a women is, and also what a man is because as you know it works in different directions... we need to deal with it and we're going to have to deal with the legislation in Ireland because unfortunately it isn't clear"

We have already discussed why British Imperial institutions are Like That. But why are Sinn Féin, alone amongst the major parties of Ireland, so eager to declare they share Empire's need for gender binaries?

An Invented Ireland

"The androgynous vision of a world whose gender boundaries were endlessly open turned out to have a wider political, as distinct from a merely personal, meaning: the manly women and womenly men of the Irish renaissance had positioned themselves on the cusp between worlds between the coloniser and the colonised, between west and east, between having (a phallus) and being (a woman). Now such a confusion of gender boundaries could stand only for "the fragile status of nationality", and so it was ruthlessly disallowed. The ideologues of independent Ireland reverted to the old, neurotic philosophy which saw the male as in all things the opposite of the female."
- Inventing Ireland, Declan Kiberd, 1995

Ireland, Britain's first overseas colonised people, is now the EU's richest post-colonial state. The place where all those Imperial boundaries and partitions were first tried out- the laboratory where Britain invented its Imperial self- spent decades working through and out the corrosive effect of the coloniser's binary definitions. For Sinn Féin, the work clearly isn't complete.

Some Joyce? Let's have some Joyce.

—The memory of the dead, says the citizen taking up his pintglass and glaring at Bloom.
—Ay, ay, says Joe.
—You don’t grasp my point, says Bloom. What I mean is …
—Sinn Fein! says the citizen. Sinn fein amhain! The friends we love are by our side and the foes we hate before us.

-Joyce, James. Ulysses (Penguin Modern Classics)

Bloom encounters the one-eyed citizen in the Cyclops episode of Ulysses. He is a rote-reciting nationalist of the most conventional sort. During the encounter, where the citizen has denied the possibility of being both Jewish and Irish, Bloom is challenged to define a nation as a binary, and refuses.

—But do you know what a nation means? says John Wyse.
—Yes, says Bloom.
—What is it? says John Wyse.
—A nation? says Bloom. A nation is the same people living in the same place.
—By God, then, says Ned, laughing, if that’s so I’m a nation for I’m living in the same place for the past five years. So of course everyone had a laugh at Bloom and says he, trying to muck out of it:
—Or also living in different places.
—That covers my case, says Joe.
—What is your nation if I may ask, says the citizen.
—Ireland, says Bloom. I was born here. Ireland.

The citizen said nothing only cleared the spit out of his gullet and, gob, he spat a Red bank oyster out of him right in the corner.

Joyce, James. Ulysses (Penguin Modern Classics)

Empire is internalised and mirrored by its nationalist foe. Joyce shows that the British Empire's demand for binary selves has colonised the mind of the self-defined Irish nationalist and points to a radical and freeing alternative in Bloom, a man who defines himself and his nation in terms of and not or.

It was that escape, that leap out of the prison of binaries, which allowed the Good Friday Agreement to eventually cut the Gordian knot of Ireland's uncivil war. Its signatories agreed that people could be both Irish and British, not forced to decide between the two. The public overwhelmingly endorsed it. Even Ian Paisley Junior now holds an Irish passport and advises his constituents on how to apply for one themselves.

Sinn Féin's present chorus of binary enthusiasts are as trapped as the UK Supreme Court in an Imperial, pre-Good Friday Agreement, world.

Synthesis and rest, at last

What does the UK Supreme Court decision mean for Ireland?

Outside of the rhetorical opportunities for people eager to reverse the country's existing provisions for the legal recognition of trans people, nothing at all. Furthermore, the CJEU's decision ensures that the UK decision could never be given an effective local implementation. You can't circumscribe the rights of trans people to their own identity if it is not permitted to process data regarding their gender to identify them when that data rejects their lived experience in favour of their gender status at birth.

I doubt the SF spokespeople even knew that the 'clarity' and 'dealing with the legislation' they hoped for would be incompatible with EU law and therefore not possible in Ireland. But it would.

What does the CJEU decision mean for the UK?

A more interesting question this. The UK's position on gender recognition is now nominally at odds with the EU's Data Protection regime. But the UK mustn't let their data protection regime come unmoored from the EU's, or they will lose their status of 'adequacy', threatening the free exchange of personal data that their economy relies upon.

So it seems likely that this is the high water mark for the Imperial gender binary. The UK Supreme Court decision applies to one word in one act. But, without coming undone from the principles of data protection, the UK state can't lawfully take actions to process people's gender data in a way that ignores their lived experience in favour of their gender status at birth. If the government tries to operationalise the judgment more generally, the UK GDPR sits waiting for it like the troll under the bridge.

For the rest of Europe, Ireland included, this particular issue now remains a very British dis-ease.