The Supreme Court judgement on WOMAN

An impassable terrain

The issue of access to women’s intimate spaces and the participation of natal males who have identified as female by gender reassignment in sport has been a controversial and sometimes impossible issue to discuss.

There are activists in what had become gender wars who had taken such implacably entrenched positions on either side of the debate, making those who even had the simplest, most innocent, or possibly naive questions feel silenced, for fear of being labelled phobic, exclusionary, bigoted or even worse.

Any opinion that appeared to go against the grain of the most liberal view of inclusion was an invitation to censure, ostracism, punishment, loss of status or livelihood, persecution, prosecution, and even death threats. I dare say, to the silent and quite likely reasonable majority, it was like the world had gone mad.

What is sex?

I awaited with anticipation and trepidation the judgement of The Supreme Court in the UK, framed in the context of what the protected characteristic of sex in the Equality Act 2010 explicitly referred to, was it biological sex alone or did it include certificated sex?

The section, as per what the Act refers to as sex, is Chapter 1, Section 11 shown below:

Sex

In relation to the protected characteristic of sex—

(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;

(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.

The Supreme Court in its 88-page judgement with 268 paragraphs exhaustively reviewed historical and superseded acts and laws that fed into the Equality Act 2010 and concluded that the definition of man and woman given in the Sex Discrimination Act 1975 had not been changed in either the Gender Recognition Act 2004 or the succeeding Equality Act 2010. [The Supreme Court – Judgement - For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent)] PDF

In Part 1, Section 5, Subsection 2, the Sex Discrimination Act 1975 declares.

(2) In this Act—

" woman " includes a female of any age, and

" man " includes a male of any age.

There should be no doubt in anyone’s mind that in 1975, woman and man referred to biological sex. Every assertion and consequent interpretation derives full context from here.

An appeal to predictability

The Supreme Court was at pains to stress a particular point in Paragraph 12:

Lord Nicholls’ important constitutional insight in Spath Holme, that citizens with the help of their advisers should be able to understand statutes, points towards an interpretation that is clear and predictable.

In other words, there is a need for consistent, clear, and predictable interpretation of words, contexts, meanings, and intention, when citizens read statutes as promulgated by parliament.

That means, if a woman or a man had not been explicitly redefined in a subsequent Act, the precedent definition remains.

Another crucial point made is that the protected characteristic of Gender Reassignment remains valid by force of law in the Equality Act 2010, none of the rights of those persons who have undergone, are undergoing, or are in the process to undergo gender reassignment are impugned, they are protected against discrimination, victimisation, or harassment, as a matter of course.

The difficult question

However, the practical consequences of this situation and judgement will definitely leave people with certain protected characteristics who have had access to spaces of their acquired gender identity in a kind of limbo, possibly requiring a third space.

I would think, this is a matter for The Equality and Human Rights Commission to address, in terms of the changes to rules, regulations, notices, texts, and policies, along with the kinds of accommodations and exceptions that will continue to safeguard the protected characteristics of those whose biological sex has by gender reassignment acquired a certificated sex.

Knowledge is power

It is incumbent on every activist and advocate to study The Supreme Court judgement to appreciate the rationale behind their summation and conclusion.

At the very least, read Section 22, Summary of our reasoning, which contains Paragraph 265 on Pages 84 to 86; the attendant paragraphs informing their reasoning are suffixes to the respective subsections.

While I am not a lawyer and obviously not as emotionally invested in this situation, my reading of the judgement is that it is sound, based on unimpeachable legal precedent, and argued with due consideration of all parties involved, that they have stated, it is not a victory for either side.

It provides clarity that would roll back some unfortunate and extrapolated interpretations of the law that have both advantaged and disadvantaged certain groups with common characteristics; that would always be the result of a petition for interpretation made to the highest court of the land.

The fight for exclusive and/or inclusive places for protected characteristics as per the Equality Act 2010 must advance beyond protest to provision. I also do not believe the slippery slope argument is relevant to this case.

References

The Supreme Court – Judgement - For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) [PDF]

BBC News: Five key takeaways from Supreme Court ruling

Observer Editorial: The Observer view on Equality Act ruling: A dignified compromise that respects the rights of everyone