Mick Hartley

What a mess this all is. Akua Reindorf disentangles the For Women Scotland case in the Supreme Court. Does the law recognises that lesbians are — first, foremost and exclusively — women? And are they allowed to gather in organised groups without having to let heterosexual males join in?

For Women Scotland v The Scottish Ministers was heard by the Supreme Court in November. The narrow point to be decided in the appeal is who counts as a woman under the Equality Act 2010. By extension, the judgment will say who counts as a lesbian. The issue has arisen downstream of the remarkably successful promotion by LGBTQ+ activists over recent years of the idea that a woman is anybody who identifies as a woman. This has resulted in the prevalence of an erroneous notion that a male who self-identifies as a woman is entitled to women’s legal rights. This is why employers and service providers think they cannot exclude males who identify as women from women’s lavatories, changing rooms, shelters and sports.

It has now been put beyond doubt that self-ID does not exist in UK law, even if activists continue to persuade employers, service providers and politicians that it does. A person can only acquire rights which are specific to the opposite sex if they obtain a Gender Recognition Certificate.

The only question remaining in law is how far that principle extends. Does a GRC change a person’s sex only in relation to legal rights which are essentially personal in nature, like entitlement to social security or laws governing what is written on birth and death certificates? Or does it go further, and turn men into women under laws — like parts of the Equality Act (the clue is in the name) — whose precise purpose is to distinguish between the sexes, regulate patriarchal power and privilege and enable women to exercise autonomy vis-à-vis men?

If it is the latter, the result is chaos. It means that under the Equality Act a lesbian is either a female without a GRC or a male with a GRC, who is attracted both to females without GRCs and to males with GRCs, but not to females with GRCs or to males who identify as women but do not have GRCs. A lesbian couple could consist of two males with GRCs, but not two males who identify as women but do not have GRCs (those would be gay men) or one with a GRC and one without (that would be a straight couple).

Umm…

This nonsense is nothing to do with anybody’s lived experience. And it is only one of a dizzying multitude of intractable interpretive problems that arise when the Equality Act is made to accommodate the idea that a person can change their sex in law. For one thing, the same array of counterintuitive outcomes applies to the other sexual orientations. For another, it throws the Equality Act provisions on single-sex services and facilities into a morass of confusion.

A third consequence is that it makes it impossible for lesbians to form associations — organised groups of at least 25 members — that are open only to females. It requires such associations to admit males with GRCs who are attracted to women. Whatever the law says, for many lesbians these are simply heterosexual men.

The formerly thriving lesbian social scene is already on its knees. In 2023 there were only three lesbian bars left in the country. The only one remaining in London operated on a self-ID basis. Lesbians report being kicked off dating apps for saying that they only wish to meet biological women. Protests and threats of cancellation have forced us back into socialising behind closed doors.

If the judges’ decision confirms that lesbian associations must admit males, the inevitable result will be even fewer of them. Since it is not practicable to ask for proof of GRC status, those that remain will simply open up to any male who is willing to assert an unfalsifiable female gender identity for whatever benign or malignant reason he may have.

This issue affects gay men too, but it has particular salience for lesbians. Lesbianism is the only sexual orientation that does not include men. Yet — and one does not have to think too hard about why this is — heterosexual men have always shown a particular interest in it. Many lesbians have heard variations on the “all you need is a good man” theme. This is not only tiresome but, often, threatening. Research shows that lesbians are at higher risk of rape, sexual assault and sexual victimisation than other groups, including heterosexual women and gay men.

How could anyone not have foreseen this? If men can self-identify as women of course it's going to happen: men in bad wigs and fake breasts, often enough not even bothering to shave their beards off, dominating lesbian dating sites. Along with death and taxes, the third certainty in life is men taking every opportunity to exploit women.

In For Women Scotland, the Supreme Court considered written submissions from a group of lesbian organisations with the glorious collective title of the Lesbian Interveners, which spoke powerfully of the existential threat posed to lesbian social life by the unnavigable state of the law. A possible outcome of the case is that the judges will decide that a GRC does make a male into a woman under the Equality Act, but will also suggest that parliament considers amending the legislation to sort out the problems this causes.

Perhaps the Equality Act needs a complete rewrite. But Labour have shown no interest. As I wrote last year…
The Equality Act was formulated at at time before gender became the new cause celebre so the wording is ambiguous on the difference between sex and gender identity, which wasn't a thing then (and isn't a thing now, either, but here we are), allowing for the kind of manipulation that lets men get into women-only spaces, women's sport, women's jails, rape centres, and so on. Clarification was required – yes, the Tories should have got round it a lot sooner – but the current ambiguity suits the gender activists. It seems to suit our new Labour government too.