What is a woman? Five judges will soon decide

 

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ALEX MASSIE

What is a woman? Five judges will soon decide

What is legal is not the same as what is decent. The social reality of trans people and their rights to dignity and respect will not alter one way or the other

The Sunday Times
For years now, politicians have done their best to avoid answering an ostensibly simple question. Ask them “What is a woman?” and watch them squirm. The gender wars have not been kind to those lacking the brains and stomach for clear-thinking. An extraordinary number of asinine questions have become subjects for self-owning: Can a man have a cervix? How many sexes are there, anyway? Can anyone actually say whether they are truly male or female unless they’ve tested for their own chromosomes?
Who really can say one way or the other, though? Surely we should agree that it must be unkind to press the issue too stridently, too persistently and too damn noisily. If nothing else we can be sure that a certain type of unthinking individual, typically a male of some standing or celebrity, will eventually ask in a tone of disappointed exhaustion why the affairs of a tiny number of trans people cause such angst and controversy?
To which the obvious and correct retort is that they don’t, save to the extent that the lives and rights of trans people intersect and sometimes conflict with the rights of other groups and types of people. Most often, and most importantly, these other people will be women.
Sure, carry on insisting that all this noise only concerns a small number of marginalised trans people and dismiss the rights and interests of women all you like. Since women constitute half the population you, dear reader, might think it revealing that their particular interests may be reduced to a small heap of nothingness in this way.
There is, though, a twinkling of light. This month five Supreme Court justices, led by Lord Reed, will decide once and for all whether “woman” means, as a matter of law, a biological woman or whether the definition of sex, whether male or female, may be broadened to encompass people possessing a gender recognition certificate that changes their legal sex in almost all circumstances and, de facto, for ever changes our understanding of sex too.
The matter of For Women Scotland v the Scottish Ministers is no small question. The issue, as described by the court, seems straightforward: “Is a person with a full gender recognition certificate which recognises that their gender is female, a “woman” for the purposes of the Equality Act 2010?”
The case has been brought to London by For Women Scotland, a feminist campaigning group, following a Court of Session judgment that, in the matter of representation on public boards, and the quest for gender balance therein, trans people with a GRC should be considered, legally, as possessing their acquired “sex”.
The issues, however, go well beyond what might seem a dry or technical discussion. As Michael Foran, a lecturer in public law at Glasgow University, observes: “This case is rightly primarily concerned with ordinary principles of statutory interpretation and only secondarily concerned with human rights.” As such, the legal questions are viscous and complex and, frankly, beyond most of us.
Be that as it may, and as the Equality and Human Rights Commission noted this year: “If sex means legal sex, then sexual orientation changes on acquiring a GRC.” A male to female trans person with a GRC might become a lesbian; a female to male trans person with a GRC in a relationship with a natural-born male would become a gay man themself.
This might seem dizzying but it has further implications, including for the provision of single-sex spaces. If a certificate changes a person’s sex, then it becomes harder to insist upon those spaces. In effect, does the law trot along behind how a person identifies themselves, subject to them holding a certificate, or does it hold to a stern insistence on them being, biologically, who they are regardless of how they identify or choose to lead their life?
In other words does “sex” have a consistent meaning through its appearances in the Equality Act or is its meaning subject to context? That is, might it usually refer to biological sex, save in those places where is might cover certified sex? In her Court of Session judgment, which sided with the Scottish government, Lady Haldane ruled that the meaning of “sex” in one context does not mean it must retain that meaning in others.
This feels too cute a form of reasoning to be entirely satisfactory. The Equality Act, for instance, protects a woman against discrimination on the basis of “a pregnancy of hers”. But if a GRC-holding pregnant trans man, which is to say, a biological woman, is now defined as a legal male, such a person would no longer be covered by these protections. For they would now be deemed a man.
In practice these conflicts might arise only infrequently. Few people, after all, hold a GRC. Nevertheless the theory also matters, not least because expanding the definition of woman, and indeed, that of man, creates a cascade of further questions. The distinction between people who have been diagnosed with gender dysphoria and hence qualify for a GRC and those we might dub “lifestyle” trans people is both important and, I would add, a means of protecting GRC-holders themselves.
What is legal, after all, is not the same as what is decent. The social reality of trans people and their rights to dignity and respect, including being addressed and, typically, treated as they would wish to be, is not altered by the court’s ruling one way or the other. There are worse things than indulging a material fiction and most of the time, in most circumstances, little if any harm can come from doing so.
All this takes place in the context of the reality that, for the most part, so-called gender-critical feminists have prevailed. Self-ID is dead, killed in Scotland by the Women Who Wouldn’t Wheesht, Nicola Sturgeon and Isla Bryson. The Scottish debacle has persuaded Sir Keir Starmer’s government to abandon its promises to legislate on this issue. This being so, it is little surprise that people now wonder why gender-critical feminists won’t just “take the win”. Why must they carry on like this?
Because, however tiresome some may find it, the underlying issues still matter and still require final resolution. As matters stand, a woman is a woman except when she is not. That might be an interesting philosophical discussion but as a matter of law, never mind reality, it seems profoundly unsatisfactory. Over to you, Lord Reed.
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