How UK's highest court is about to decide what a 'woman' is

There are liars. There are damn liars. Then, there is the Scottish Government. Or at least that is the only conclusion to be reached after reading its submission to the Supreme Court, published two days ago.

Next Tuesday, the row over gender identity theory that has rumbled on for the best part of a decade will come to a head. Five judges, led by Lord Reed, will consider the question brought by campaign group For Women Scotland: “Is a person with a full gender recognition certificate [GRC] which recognises that their gender is female, a ‘woman’ for the purposes of the Equality Act 2010?”

In its written argument, only published after policy collective MBM threatened to lodge an application with the Supreme Court seeking full disclosure, the Scottish Government insists that the term woman includes a “person issued with a full GRC in the acquired gender of female”.

Equality Act fears dismissed

For all practical purposes, this means that women lose the protection based on their sex as set out in the 2010 Equality Act – the very law designed to ensure safety and fairness for them. And crucially, it directly contradicts the assurances given by the Scottish Government during the passage of the Gender Recognition Reform Bill.

The government’s plans for self-ID set out in the Bill meant that anyone over the age of 16 could change their legal sex simply by filling in a form. Campaigners – and most Scottish Conservative MSPs – argued that this would have a significant impact on women’s rights, as protected by the Equality Act. The Scottish Government brushed away their fears.

Indeed, Shona Robison, then Social Justice Secretary, was unequivocal. On Tuesday, December 22, 2022, as the bill was about to pass, she stated in parliament: “I am grateful… for the opportunity to put on the record once again that, as I have said so many times, the exceptions in the Equality Act 2010 remain and trans women can be excluded from those [women-only] spaces if it is proportionate and in line with the guidance and with the provisions that are contained in the 2010 Act. I cannot be any clearer than that.”

Supporters of For Women Scotland and the Scottish Feminist Network take part in a demonstration outside the Scottish Parliament (Picture: Lesley Martin) | PA

During stage two of the Bill, Robison had even accepted Scottish Labour’s amendment that read: “For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.” Yet it would now appear that the minister had her fingers crossed behind her back every time she insisted her plans would have no effect on the Equality Act.

Lesbian question

Indeed, her government’s Supreme Court submission describes, in very clear terms, a significant impact on a particular group of women – lesbians. To prove its argument that a biologically male person with a GRC is now legally female, the Scottish Government argues that if he is sexually attracted to women, then he is now a lesbian ­– and therefore a lesbian group or association with more than 25 members cannot legally deny him membership.

An interesting position from a government that prides itself on its support for the LGB community, and one refuted by campaign groups, including Sex Matters, LGB Alliance and Scottish Lesbians. In their submission to the Supreme Court, they write: “A male can never be a lesbian as a matter of fact, whether he is in possession of a GRC recording his acquired sex as female or not. This is because he will never be female. It cannot seriously be disputed that humans are a sexually dimorphic species.”

The last sentence gets to the heart of the debate on gender identity theory, a very public argument that has cost the career of at least one First Minister – Nicola Sturgeon – divided families, and may even have contributed to the election of Donald Trump earlier this month.

Undermining sex-based women’s rights

Most people believe that human beings cannot change their sex. Equally, most people don’t care how anyone dresses, who they love – as long as no abuse is involved – or even how they describe themselves. But as author and women’s rights campaigner JK Rowling wrote on social media this week, “if a man is a woman, there is no such thing as a woman”.

If men, waving a recognition certificate, are allowed to join the legal category of women as set out in the Equality Act, then the very basis of women’s rights – their sex – is nullified. This is the straightforward proposition that women’s rights campaigners have argued for years now. It is not an anti-transgender position, it’s a pro-woman stance, the very essence of feminism.

It is impossible to predict which way the Supreme Court will fall on whether the legal definition of a woman includes men with a GRC. If For Women Scotland prevails, then the Equality Act will be clear – women are defined by their sex, not a certificate. If the judges uphold the Scottish Government’s view, then the battle will rumble on.

‘A wholly unsatisfactory situation’

The Equality and Human Rights Commission, in its submission to the court, agrees with the Scottish Government that when the UK Parliament passed the Equality Act in 2010, it “intended those who have acquired a gender recognition certificate to be treated as their certified sex”.

But its chairperson, Baroness Falkner, goes on to say that this interpretation creates significant inconsistencies which “impair the proper functioning of the Equality Act and jeopardise the rights and interests of women and same-sex attracted people”. In a clear call for reform, she says: “As the equality regulator, we deem this to be a wholly unsatisfactory situation, which Parliament should address with urgency.”

But whatever Lord Reed and his learned colleagues decide, one weary but still determined campaigner sums up the mood of women across the country. “All we hope for is that sanity returns to our legislators and the ordinary, biological meaning of sex, is just that, ordinary.”