by Andrew Tettenborn, CapX
If you look through this morning’s For Women Scotland judgment for statements that wokery is dead, or that the Supreme Court trenchantly confirms that there are only two sexes, you’ll be disappointed. The judgment is actually a long, convoluted and often turgid exercise in statutory construction. Assuming that you can remain awake, what it decides is, in essence, that although the Gender Recognition Act 2004 says that anyone who transitions and gets a gender recognition certificate (a GRC) takes their chosen gender, this does not affect the sex equality provisions in the Equality Act 2010. The latter work on the basis exclusively of biological sex. From this it follows that the Scottish government cannot, when providing for sex equality on public bodies, say that trans women count as female (a Holyrood law providing for this being the subject of the case).
The immediate result is not earth-shattering. Trans people form a small proportion of Scots, and trans aspirants among the Caledonian quangodom seeking to utilise the sex-equality provisions to get into the female camp are likely to be fairly few and far between. But the case still matters a great deal.
For one thing, when it comes to the law on sex discrimination, the contact most of us have is via the Equality Act. Since it is now clear that when this Act says ‘female’ or ‘woman’, it refers to someone biologically female, it means that men who have transitioned cannot now demand to join women’s sports teams, where they would often have a grotesque and pretty clearly unjust advantage, or to take part in schemes to boost women’s representation where the Act allows them. But it goes further, and very importantly so. The 2010 Equality Act contains numerous provisions specifically allowing spaces to be segregated by sex (for example lavatories, changing rooms or womens’ refuges), or permitting single-sex institutions such as clubs, schools or colleges. What we now have is confirmation that someone with all the appearance of a man cannot simply brandish a GRC and thereby demand admission to the ladies’ lavatory, the female changing rooms in a hospital or a rape crisis centre.