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.
This is vital, as it preserves the comfort and feelings of the vast majority of the population. Besides often appreciating the sodality of exclusively male or female spaces like single-sex clubs or colleges, most people for better or worse are remarkably unhappy about the presence of people who look, sound and feel like men in intimate spaces such as female loos or shower rooms (or vice versa). For anyone other than someone out to make trouble or score an intellectual point, preventing this happening can only be a good thing.
Nor, for all the rhetoric from radical groups such as Amnesty, does this result cause serious prejudice to trans people. We always have to remember that such persons have their own carefully-drafted protections under equality law: you can no more discriminate against someone because they have transitioned than you can treat them worse because they are black.
And there is also another practical point. True, very technically this ruling excludes from female spaces not only someone with most of the attributes of a man, including possibly a beard and a penis, who insists on barging in, but also a male-to-female transitioner who has undergone extensive surgery and passes, to all intents and purposes, for a woman. But the latter almost certainly won’t be a problem. Discretion is the name of the game, and in 99% of cases or more, nothing more will be said.
All this is why we need to welcome this decision from the Supreme Court. It prefers practicality over rigid formalism, and preserves existing institutions approved by the overwhelming majority of people over the dry logic of human rights lawyers and those with an agenda to peddle and an axe to grind. It’s hard not to regard the Scottish legislation which started the ball rolling as the product of a government concerned not so much with doing the decent thing by women, as with showing off its intellectual superiority and progressive credentials. That this attempt has now been rebuffed and that the puffed-up Scottish lawmakers who engaged in it have been taken down a peg or two makes it doubly satisfying. Any decent person, woman or otherwise, now has good cause for celebration.
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