Unlike the scores of women who gathered this week in Courtroom 1 of the UK Supreme Court in Westminster – there were so many that they had to be herded into an overspill room – I watched the proceedings online. It was a surreal experience. On Tuesday 27 and Wednesday 28 November, the highest court in the land listened to arguments on how to answer a question that would, I think, seem extraordinary to most people: what is a woman? That we have got to this point makes a mockery of the Labour Party’s insistence, during the general election campaign, that the law is clear when it comes to the definition of sex.
Two things stood out as I followed the case on day two: that women (in Scotland in particular), were being gaslit by the Scottish government; and lesbians were, in effect, being told by the Scottish government that they were no longer protected in law according to their sexual orientation. By virtue of a legal piece of paper, it was argued, a “heterosexual male” could become a lesbian woman overnight. These were the words of Scottish government lawyers.
This case is about interaction between the 2004 Gender Recognition Act and the 2010 Equality Act. The former allows someone with a medical diagnosis of gender dysphoria to gain a gender recognition certificate (GRC). This certificate grants that person the right to be treated under the law as belonging to the sex they identify as, “for all purposes”.
Under the Equality Act, it is illegal to discriminate against anyone on the basis of nine protected characteristics: age, disability, religion, race, marital status, being pregnant or on maternity leave, sexual orientation, sex, and gender reassignment. The last of these, rightfully, protects trans people from discrimination. The problem comes when you ask what “sex” means in this context: biological sex, or legal sex – as defined by a GRC.
This particular row goes back to 2018, when Holyrood passed legislation to mandate that boards of public organisations in Scotland be made up equally of men and women. The Scottish government defined women to include transgender women – whether they had a GRC or not. Anyone who self-identified as female would be considered as such. The feminist campaign group, For Women Scotland successfully challenged this in the courts. When SNP ministers issued revised guidance that included those with a GRC within the definition of a woman, For Women Scotland challenged again – and lost.
In late 2022, Scotland’s Court of Session ruled that sex, for the purposes of the Equality Act, was “not limited to biological or birth sex” and included “those in possession of a GRC”. It’s that judgement, and its widespread implication for the provision of single-sex spaces and service provision, that was taken to the Supreme Court.
The case put forward by For Women Scotland, expressed in court through Aidan O’Neill KC, is that: “In the Equality Act, sex just means sex, as that word and the words woman and man are understood and used in ordinary, everyday language, used every day in everyday situations by ordinary people.” The Scottish government argues that a transgender woman with a GRC is entitled to the same protection under the Equality Act as those who are born female.
O’Neill urged the panel of five Supreme Court judges to take account of “the facts of biological reality rather than the fantasies of legal fiction”, while Ruth Crawford KC, representing Holyrood ministers, countered that a GRC was not a “legal fiction”, but rather it had “far-reaching consequences” in setting someone’s legal status and thus their relationship with the state. It relates, she said, to a “fundamental right” and a human right, and is “no more a legal fiction than is adoption”. (In closing arguments O’Neill stressed that there was no such parallel with adoption: the process “doesn’t change an adopted child into a biological child”, he said. Nor does it generally impact on anyone outside the familial relationship. A GRC, on the other hand, “compromises women’s rights at large”.)
Watching proceedings felt at times like being in a strange parallel universe. Questions from the judges and answers from the legal teams were incomprehensible, such was the mess that both were getting into around language. There were sentences which began, “If you exclude a pregnant man…”; sex and gender were muddled; natal women and trans women were often confused; and a new concept of “certificated sex” was introduced. Lawyers representing the Scottish government seemingly had no idea how someone showed they had been “living in their acquired gender” for the purposes of gaining a GRC. Would a natal man with a GRC saying they were a woman, but who presented as a man, be discriminated against “as a woman”, one judge asked, if people perceived them to be a man? Crawford said she’d like to think about that question over lunch. It’s easy to laugh, but the outcome of this case is fundamental to the rights of women, and of those who are same-sex attracted.
Having spent two years dismissing women’s concerns over the Gender Recognition Reform Bill – arguing that a GRC had no impact on the Equality Act or other people; that it was “just a piece of paper” that afforded trans people the dignity of having their births, marriages and deaths being recorded as their chosen gender – the Scottish government spent 27 November arguing precisely the opposite. “You had their lawyers in court using the words “far-reaching” more times than I could count”, Lucy Hunter Blackburn, from policy analysts Murray Blackburn Mackenzie, told me.
Crawford argued that so few GRCs were issued that the issue was “insignificant” – that any potential clash of rights is so unlikely to happen, that women shouldn’t worry. While telling the court, “I’m not a statistician”, she said the number (based on 8,464 GRCs being issued over 20 years) equated to just 0.001 per cent of the UK population. (For the record, it’s actually 0.01 per cent – ten times as many – but Crawford may well have just misspoken.) That “very small number”, she suggested, “goes some way to allay concerns”. Crawford’s colleague argued that the process was for gaining a GRC was “onerous” and therefore the level of rights it conferred justified. Does that undermine the argument in favour of making the process for gaining a GRC simpler and less rigorous then? “These people, two years ago, were going to keep all the same consequences and make the conditions less onerous,” Hunter Blackburn said.
The Scottish government appeared to argue that in every single piece of legislation published after the 2004 Gender Recognition Act, sex should be read as “sex as changed by a GRC”. This is patently absurd: why would UK parliaments produce legislation subsequently that did not state this? Indeed, that was so unclear that it would be argued over in the Supreme Court. And, like the argument surrounding GRCs being few in number and difficult to obtain, it also ignores historical discussions that appeared to acknowledge that sex and gender were different.
Take just one example: in 2020, the Forensic Medical Services Bill proposed by the Scottish government was amended to explicitly state that survivors of rape and sexual assaults should be able to choose the sex – as opposed to gender – of the person examining them after an attack. The then Labour MSP Johann Lamont brought this amendment, which initially faced SNP opposition. “It’s quite clear that when that bill was going through, everybody knew what sex meant at this point,” Hunter Blackburn argues. “Yet now the Scottish government seems to be saying that everything that was done around that bill – which was a huge, huge political storm in Scotland – was a lie. They are burning everything to the ground to win this case.”
And so to the erasure of lesbians. One of four interventions in the case was granted to “the Lesbian interveners” – a group of three organisations representing the rights of lesbian women. Among their arguments was that the Scottish government’s view of the law denies lesbians the right be protected as a group defined by their sexual orientation – one of the nine characteristics listed in the Equality Act.
Crawford confirmed to the court that a lesbian association of 25 members or more would not be able to restrict membership to those who are born female. Natal males – in the language of the court, meaning those born male – with a GRC who were attracted to females could not be refused entry. The only way for these trans women to be excluded would be to regroup as an association which seeks to advance a protected philosophical belief: in this instance, the gender-critical belief that sex is immutable. Those inside the court building have reported “audible intakes of breath”. Under this scenario, lesbians were no longer lesbians but rather, as the academic Jo Phoenix put it, “gender-critical women attracted to other gender-critical women”: this was sexual orientation being replaced by “belief orientation”.
“This has a chilling effect on these kinds of organisations, doesn’t it?” Justice Ingrid Simler asked the Scottish government’s representative: a lesbian association would not only have to include natal males with GRCs, but also those who identified as women but who did not hold a GRC, because the law dictates that you cannot ask if someone has a GRC. “No, you cannot,” Crawford confirmed. This was grade-A catch-22 material. “If they simply want to associate as a group of lesbians… do you say that it doesn’t have a chilling effect?” Simler pressed again. “I say it doesn’t m’lady,” Crawford replied.
“It was just gobsmacking the way she dismissed our concerns, our legal rights, actually our existence,” Sally Wainwright, who helped write the Lesbian interveners’ case, told me. “She actually denied the existence of same-sex attraction as a protected characteristic. Their position is, in my opinion, really beyond the pale: lesbians don’t matter. If men can be lesbians, then what does same-sex attraction mean? It doesn’t mean anything.”
President of the Supreme Court, Robert Reed, appeared to speak for many when he said, “We have to try to give the Equality Act an interpretation that is workable in practice.” So as to make his point, he summed up the Scottish government’s position: a trans woman with a GRC who is attracted to women is a lesbian and can’t be excluded from a lesbian association; a trans woman without a GRC is to be “treated as a heterosexual man. That’s pretty stark.”
The Supreme Court judges will now decide, with a judgement not expected until well into the new year. It seems to me that the Scottish government’s interpretation of “sex” in the Equality Act is unworkable in the real world. Indeed, it is one where everyone loses: women, trans people, and gay, lesbian and bisexual people.
“Human rights clash,” Justice Secretary Shabana Mahmood told the Spectator podcast earlier this year. “The courts are full of cases trying to resolve the way in which you then find a solution.” It is important that trans people are treated with respect and dignity, like anyone else. It is right that it is unlawful to discriminate against someone based on the characteristic of gender reassignment. But there must be balance. Gender identity, Aidan O’Neill told the court, “is not a trump card against the rights of women”. And the rights of women, and lesbian women in particular, are ignored by the Scottish government’s position. Women’s rights are human rights, too.
[See also: Can Ireland stave off populism forever?]
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