UK Supreme Court Rules Water Is Wet

In addition to a fairly standard legal career, I’ve also written three novels. The writing of novels requires the ability to make things up in a way that lawyering does not (no laughing up the back, please, and no quoting from a certain Jim Carrey film).

Despite this, Helen the novelist would never have written a story where a legal or judicial character had to define the meaning of “man,” “woman,” and “sex” in the UK’s most significant anti-discrimination legislation. The Equality Act 2010 is roughly on par with America’s two most recent Civil Rights Acts and their various “Titles”. It has ramifications across employment law, public and private associations, sport, education, healthcare, and more—just like its US counterparts. All my novels feature lawyers, judges, and trials—but not that. This is because there’s an alternative universe out there where I did come up with this sort of “high concept” plot, and no agent or publisher would accept it as a reasonable fictional premise.

In our timeline, however, For Women Scotland v Scottish Ministers involved the Kingdom’s court of final appeal—our SCOTUS, the UKSC—ruling that references to sex in the Equality Act are references to biological sex; references to men are references to biological males, and references to women are references to biological females.

To people from another timeline reading the above, I promise I am not making this up.

Background

On one level, this appeal to the UK’s apex court by sex-realist feminist group For Women Scotland turned on a relatively trivial piece of legislation. In 2018, Scotland’s devolved parliament in Holyrood enacted the Gender Representation on Public Boards (Scotland) Act 2018, coupled with what is now standard statutory guidance. What was meant to be an uncomplicated bill to increase the proportion of women on public boards in Scotland was, however, full of hidden devils-in-the detail.

Among other things, it and the original guidance paired with it defined “woman” to include people: (i) with the protected characteristic of gender reassignment; (ii) living as a woman; and (iii) proposing to undergo/undergoing/who have undergone a gender reassignment process. In other words, a piece of legislation drafted to benefit women included a significant subgroup of men—any adult male with a trans identification, whether with or without a Gender Recognition Certificate (GRC).

For Women Scotland was founded by three women—Trina Budge, Susan Smith, and Marion Calder—who met on Mumsnet, for some years the only place in the UK where the UK’s TERFs and their allies could debate in anonymous safety the trans lobby’s extraordinary capture of UK institutions. I’ve written and spoken elsewhere about the grim toll on UK (and Irish) academics, civil servants, artists, and even comedians who rejected transactivism’s goals in whole or part. This story has plentiful—and ongoing—US parallels, none of which require repeating here. All you need to know is that Budge, Smith, and Calder were determined and possessed of considerable personal courage.

In 2020, For Women Scotland challenged the guidance attached to the Gender Representation on Public Boards (Scotland) Act. The Inner House of the Court of Session—Scotland’s apex civil court, sitting in the UK court hierarchy much like one of the US circuit courts just below SCOTUS—found the definition and guidance unlawful. It held that it involved an area of law reserved to the UK Parliament (equal opportunities) and therefore fell outside the competence of the Scottish Parliament. This case became known as For Women Scotland No 1.

Developments in Parallel

On another level, none of the above would have been as serious had Holyrood not already been playing with legislative fire. Then-First Minister Nicola Sturgeon’s Scottish National Party government was in the process of enacting the Gender Recognition Reform (Scotland) Bill, which purported to instantiate what is known as “self-identification” for trans people. However, this legislation not only collapsed legal sex into biological sex, meaning that men could become women and women could become men by dint of obtaining a piece of paper, it also only applied if they were born in Scotland or “ordinarily resident” there.

However, the Gender Recognition Act 2004 was already in force throughout the rest of the UK and made this impossible or at least difficult. Among other things, the UK was confronted with the real possibility that (some) Scottish people could change sex when they passed the big Fàilte gu Alba sign on the border.

His Majesty’s Government (HMGov)—then Conservative rather than Labour, this took place before last July’s general election—proceeded to use section 35 of the Scotland Act 1998 to veto the Gender Recognition Reform (Scotland) Bill before it could receive Royal Assent. This was the first time section 35 had been used. Doing so was widely viewed as “the nuclear option.” Its deployment speaks to the messiness of UK devolutionary arrangements and the complex interplay between reserved and devolved powers.

Australian and US lawyers refer to the UK’s attempt to carve legislative powers for the four Home Nations from the flesh of a unitary state as “NQF”—not quite federalism—because the system is so idiosyncratic. These are countries, remember. Yet, during the coronavirus pandemic, Wales—a country—could not close its borders, while Western Australia, a mere state in a federal system, could. The UK’s devolved parliaments are importantly different from state legislatures like Queensland or Texas in federal systems.

After For Women Scotland No 1, the Scottish government then issued new statutory guidance. This guidance dragged the (UK-wide) Equality Act 2010 into the frame, stating that, under the Gender Representation on Public Boards (Scotland) Act 2018, the definition of “woman” was the same as that under the Equality Act. Section 212 of the Equality Act 2010 defines “woman” as “a female of any age.”

The new statutory guidance also stated that a person with a Gender Recognition Certificate (“GRC”) recognising their gender as female was considered a woman for the purposes of the Gender Representation on Public Boards (Scotland) Act. While narrower than the original unlawful guidance—only about eight thousand people in the entire United Kingdom hold a GRC—the legislation was plain on its face in seeking to add a small group of males to the “female” category as defined in the Equality Act.

For Women Scotland challenged the new guidance, and this time—perhaps thanks to the small numbers involved, perhaps because the Gender Recognition Reform (Scotland) Bill had been stymied and was unlikely to be revived given Nicola Sturgeon’s departure as First Minister and publication of the NHS’s Cass Review—Budge, Smith, and Calder lost in both the Outer and Inner Houses of Scotland’s Court of Session. They then appealed to the UK Supreme Court.

Judgments of the type handed down last month can have a predestined quality, at least in retrospect. So, believe me when I tell you that the UKSC holding unanimously that the terms “man,” “woman,” and “sex” in the Equality Act refer to biological sex did not seem inevitable before April 16th. Experienced counsel with extensive knowledge of the complexities of UK equalities law and devolution worried that parliament would have to legislate in the area to sort out confusion, for example, something that a new and deeply unpopular Labour government sitting astride a fractious and shrinking electoral coalition would be reluctant to do.

The Ruling Itself

It’s best if you remember that the Equality Act is a consolidating and amending statute. It consolidated various pieces of anti-discrimination legislation dating back to the late 1960s and early 1970s, bringing all aspects (including race, sex, sexual orientation, religion, etc.) together in one place.

Where it pertained to women, that earlier legislation, both originally and when imported into the new legislation, was drafted using biological definitions of sex. Women experienced discrimination historically (and most notoriously) based on pregnancy. One of the findings the Supreme Court made was that the pregnancy and motherhood sections cannot work any other way but biologically, because only women can get pregnant.

Aware of that drafting history, the Scottish Ministers argued—and Scotland’s apex court somehow accepted—that the word “woman” could be defined differently within the same statute. In some places, the Inner House held that the word “woman” referred to “certificated sex” (by dint of a GRC); in others—especially the sections dealing with pregnancy—the word retained its standard biological meaning. As it applied the law to the facts, this meant the court constantly had to ask itself, “would a certificated sex definition render the statute incoherent or absurd?”

Of particular note was the violence this definitional inconsistency did to the protected characteristic of sexual orientation—that is, OG homosexuality. “People are not sexually oriented towards those in possession of a certificate,” the court observed at one point, tartly.

A basic principle of parliamentary drafting is that a word cannot be defined differently within the same statute. Ideally, legal definitions should be consistent across all statutes enacted within a given jurisdiction—indeed, this is why some places have Acts Interpretation Acts (the UK is one). As the UKSC held, the meaning of “sex,” “woman,” and “man” must be consistent throughout the country’s principal anti-discrimination legislation so that ordinary members of the public (and, where necessary, their advisers) can understand what it obliges them to do or not do.

When apex courts in Commonwealth countries state the law, recall that they are declaring the law as it has always been. This is important because the enraged response from the trans lobby in the wake of the ruling revealed the extent to which many organizations (especially universities) had been behaving as though self-identification was the law. This emerged in response to bad legal advice from activist organizations, particularly Stonewall (the UK charity, not the US riot).

The issue before the court was whether the terms sex, man, and woman take on their default meaning within our law—tied to biological sex—or whether they take on a certificated meaning determined by state-issued documentation. Those were the only two possible outcomes. It has never been the case anywhere in the UK that the law was based on self-identification.

“Court rules that water is wet” makes for an amusing headline, but that is the upshot here. Many outfits—notably sporting bodies like the Football Association and the England and Wales Cricket Board—have been forced to engage in some rather rapid reverse ferreting, likely at the behest of insurers. The trans lobby continues to go off like a frog in a sock, but with diminishing effect.

More widely, however, Scotland’s much-praised mixed legal system and courts—important sources of Scottish Enlightenment thought and models of legal precision over many centuries—have taken a reputational tumble. The transactivist claim that men can be women and women can be men was always indicative of serious moral derangement: moral derangement that the UK’s top court has now punctured by imposing a reality and consistency test.

Helen Dale is a Senior Writer at Law & Liberty. She won the Miles Franklin Award for her first novel, The Hand that Signed the Paper, and read law at Oxford and Edinburgh. Her most recent novel, Kingdom of the Wicked, was shortlisted for the Prometheus Prize for science fiction. She writes for various outlets, including The Spectator, The Australian, Standpoint, and Quillette. She lives in London, is on Substack at www.notonyourteam.co.uk, and on TwitterX @_HelenDale.