sex” means in this context: biological sex, or legal sex – as defined by a GRC.
Well OK. This is where it gets complicated. Needlessly complicated, you might say.
In late 2022, Scotland’s Court of Session ruled that sex, for the purposes of the Equality Act, was “not limited to biological or birth sex” and included “those in possession of a GRC”. It’s that judgement, and its widespread implication for the provision of single-sex spaces and service provision, that was taken to the Supreme Court.
The case put forward by For Women Scotland, expressed in court through Aidan O’Neill KC, is that: “In the Equality Act, sex just means sex, as that word and the words woman and man are understood and used in ordinary, everyday language, used every day in everyday situations by ordinary people.” The Scottish government argues that a transgender woman with a GRC is entitled to the same protection under the Equality Act as those who are born female.
The implications of the Scottish government case, as argued by Ruth Crawford:
Crawford confirmed to the court that a lesbian association of 25 members or more would not be able to restrict membership to those who are born female. Natal males – in the language of the court, meaning those born male – with a GRC who were attracted to females could not be refused entry. The only way for these trans women to be excluded would be to regroup as an association which seeks to advance a protected philosophical belief: in this instance, the gender-critical belief that sex is immutable. Those inside the court building have reported “audible intakes of breath”. Under this scenario, lesbians were no longer lesbians but rather, as the academic Jo Phoenix put it, “gender-critical women attracted to other gender-critical women”: this was sexual orientation being replaced by “belief orientation”.
“This has a chilling effect on these kinds of organisations, doesn’t it?” Justice Ingrid Simler asked the Scottish government’s representative: a lesbian association would not only have to include natal males with GRCs, but also those who identified as women but who did not hold a GRC, because the law dictates that you cannot ask if someone has a GRC. “No, you cannot,” Crawford confirmed. This was grade-A catch-22 material. “If they simply want to associate as a group of lesbians… do you say that it doesn’t have a chilling effect?” Simler pressed again. “I say it doesn’t m’lady,” Crawford replied.
“It was just gobsmacking the way she dismissed our concerns, our legal rights, actually our existence,” Sally Wainwright, who helped write the Lesbian interveners’ case, told me. “She actually denied the existence of same-sex attraction as a protected characteristic. Their position is, in my opinion, really beyond the pale: lesbians don’t matter. If men can be lesbians, then what does same-sex attraction mean? It doesn’t mean anything.”
When lawyers take over and sense goes out the window. You'd need the Dickens of Bleak House to unravel these fog-bound legal mysteries.
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