What's going on in Scotland, at the Supreme Court hearing on woman's rights? Hannah Barnes at the New Statesman has been following the labyrynthine proceedings:
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.
Well OK. This is where it gets complicated. Needlessly complicated, you might say.
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.
The implications of the Scottish government case, as argued by Ruth Crawford:
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.”
When lawyers take over and sense goes out the window. You'd need the Dickens of Bleak House to unravel these fog-bound legal mysteries.
Mick Hartley 