Today, on Trans Day of Visibility, once again the Left Unity-led Standing Orders Committee (SOC) have sought and issued legal advice from Thompsons Solicitors not only to rule out of order at least 2 motions defending our trans members, but to refuse to publish them altogether.
Using Rule 6.22g of the Union’s constitution, which states that SOC may “Exclude any motion which the Standing Orders Committee consider (after taking written legal advice) may provide grounds for any legal proceedings against the Union or any of its officers or agents.”, they have written to proposing branches stating that they refuse to publish the motions and there is no recourse open to the branch to challenge this ruling.
We don’t have the same qualms.
The motions call for practical solidarity with trans people. The first motion (which we publish here) instructed the NEC to “publicly commit to all trans people being able to use the facilities of their choice at all PCS events/buildings.”
The second motion (published here) instructs the union to “”oppose segregationist and anti-trans laws, policies, and practices” and to “write to branches stating that PCS stands with members acting in defiance of anti-trans policies and practices”.
The legal advice, published here and here makes the claim that the union is open to legal challenge if either text is published and therefore neither motion should be published in the conference agenda. We don’t accept this advice. Notably, the questions asked by SOC have not been included, only a general statement that SOC asked Thompsons to ‘consider whether the Motion may provide grounds for legal proceedings against PCS or any of its offìcers, agents or printers.’
In summary, the advice against the first motion makes the incorrect assumption that the ruling applies to union conference facilities. But we should be clear that if the motion cannot be implemented the union will be sanctioning the forcing of trans people to use a toilet for the gender which they do not identify with and/or do not present according to.
Regarding the second, the advice is that opposition to ‘anti-trans laws and practices’ could be seen as harassing those who hold support for such views. And that for PCS to ‘stand with members acting in defiance’ of them would alternately be inducing members to a breach of contract or inducing a contravention of the Equality Act by opposing the beliefs of trans exclusionary individuals. Thompsons admit on both counts that any cases brought on this basis would be ‘highly fact dependent’ and that it ‘is not necessarily the case that such a claim would succeed’.
Let’s be clear, there are many subjects which ‘may provide grounds’ for legal challenges against the union on the above basis. Consider the many motions which rightfully ‘discriminate’ against anti-union or racist political beliefs, or support the right to abortion, that could amount to discrimination of political or religious beliefs as a protected characteristic. Or indeed the many motions which encourage a ‘breach of contract’ by advocating strike action.
These motions have not been subject to this scrutiny and we should ask why motions supporting trans liberation have been singled out in this way .
Last year we wrote extensively on this issue. We repeat here: it is a very basic trade union tradition, repeated at key points throughout history, that if a law or ruling is judged to be discriminatory to a marginalised section of society or a union membership, then that law shouldn’t be accepted. It should be straightforwardly opposed.
We acknowledge that the Supreme Court ruling is detrimental to trans people and is part of a wider trajectory of the erasure of trans people from public life.
As with all other liberation struggles, the law is often not our friend and will need to be challenged to protect our members, not used as an excuse to silence their voices. Where we believe trans inclusionary policies should be defended, including in the courts if they are challenged, the current PCS leadership have been clear that just the threat of being challenged is enough to make them back down. This is not how a union seeking to change society acts.
It is down to the Standing Orders Committee to choose which motions it seeks legal advice for. Yet the existing rule does not discriminate between challenges that are likely to be successful or not. Therefore, it stands as a useful mechanism for a politicised standing orders committee to seek justifications for not hearing motions.
The SOC have made a choice to seek legal advice for this motion and not for others. The safety, wellbeing and equality of our trans members has once again been relegated below the interests of those who wish to deny their existence. Perhaps this is no surprise for an organisation running a prominent activist of an openly transphobic political outfit for Vice President.
In the final analysis, it is the Annual Delegate Conference that is supposedly the sovereign body of the union, not the Standing Orders Committee and not Thompsons Solicitors. ADC, as the union’s democratic body, should be the arbiter of what the legal appetite of the union should be. And judging from last year’s conference, where it repeatedly refused to endorse the Standing Orders report on the same basis, it is more than capable of exercising that responsibility.
Rule 6.22g must be reformed or removed as part of a wholesale re-founding of PCS and the democratisation of our rules and constitution.
We urge branches to be aware of this issue and be prepared once again to organise at conference in solidarity with our trans members and trans people as a whole. Even if delegates have reservations on the union’s legal standing, it is surely a basic democratic tenet that they are provided with the motions passed at branches and allowed make up their own minds. And even if the union won’t do so, we will continue to ourselves.
If any branch has received similar contact from the Standing Orders Committee, please get in touch at independentleftpcs@gmail.com. And be sure to support candidates who consistently stand with all our members against discriminatory laws and beliefs in the upcoming NEC and Group Elections.