Mrs Benn

The last week has been a difficult one for trans people in the UK. On April 16^th, the Supreme Court (SC) published an important ruling on the interpretation of the 2010 Equality Act (EA), a landmark act that attempted to draw together and integrate a larger body of equality legislation, including the Sex Discrimination Act of 1975 and the Gender Reassignment Act (GRA) of 2004.

The Supreme Court was addressing a legal challenge to the appointment of a transwoman to a position on a governmental body in Scotland reserved for a woman. A campaign group argued that a natal(biological) woman should be appointed to the post, because sex was a protected characteristic under the EA, while the Scottish Government argued that the EA incorporated the GRA, under which a transwoman with a gender recognition certificate (GRC) was, in law, recognised to be a woman.

It is important to say at the outset that almost everything that news media and politicians have said about this SC ruling is inaccurate. Kemi Badenoch, the leader of the Conservative Party, crowed that the ruling put Keir Starmer in his place for being unable to say whether a woman could have a penis. However, the SC ruling examines exactly this question in paragraphs 91-93, which describe the case of an individual who applied for a GRC and was initially refused one on grounds that she retained functioning male genitalia, but who was on appeal granted a GRC because she satisfied the requirements of the law by proving that she lived as a woman. The SC does not in any way suggest that the award of a GRC was wrong in this instance. Indeed, the SC ruling affirms (paragraph 97) that clause 9.1 of the 2004 Gender Recognition Act (GRA) lays down that “on the issue of a GRC, a person’s gender becomes for all purposes the acquired gender and then, in parentheses, that the person’s sex becomes that of the acquired sex.” The SC goes on to state (paragraph 100):

“…we consider that the Act continues to have relevance and importance in providing for legal recognition of the rights of transgender people. This recognition of their changed status has practical effects for individual rights and freedoms…but also in recognising their personal autonomy and dignity and avoiding unacceptable discordance in their sense of identity as a transgender person living in an acquired gender.”

So what have the judges ruled on? They made it clear that they have not ruled on how a woman is defined in law (although the majority of news media have nevertheless reported that the SC ruling is legal definition of what it means to be a woman). However, they have ruled on how the sex-based protections in the EA should be understood.

The EA lays out 9 protected characteristics that include sex and being transgendered. The SC argue that the 2004 GRA allows for certain exceptions to its provisions, to avoid incoherent consequences. These are set out in section 9.3 of the GRA. They go on to argue that in the context of the EA, the protected character of sex can only be understood if applied to biological sex, bec ause to read it otherwise is to create incoherent consequences of the type that section 9.3 of the GRA was designed to avoid. As an example, the judges examine discrimination associated with pregnancy and breast-feeding. The EA only refers to these in relation to women, but the SC argues that if “sex” was only understood as “acquired sex under the GRA”, trans men would be denied the protections of the EA in relation to pregnancy and breast-feeding, a conclusion that the SC argues would be discriminatory and contrary to the intentions of the EA. In its ruling the SC examines a variety of case law that establishes that reproductive biology is understood in UK law in terms of natal sex and it argues that the only coherent way that the EA can be understood is if “sex” in these contexts means “natal sex”.

The judges extend these arguments to sports, to lesbian-only groups and to women’s refuges and they make the case that the law allows in such cases for access to be defined by natal sex, because coherent arguments can be made for protections based on natal (biological) sex. The basis for such exceptions is provided in section 9.3 of the 2004 GRA. The judges argue that the EA extends protections for transgendered people beyond just those with a GRC (an important consequence of the EA for which many people have been profoundly grateful), that a GRC is a private document, and that it would be impossible and discriminatory to restrict the protections of the EA to only those with a GRC. This means that equating “acquired sex” and “sex as a biological characteristic” in every circumstance inevitably leads to problematic consequences.

The ruling very definitely does not provide a universal definition of a woman as a somebody who was born female. Thus, the SC has not ruled that transwomen cannot be treated as women, but it has ruled that there are circumstances in which defining a sex-based protection as applying only to natal females is not illegal. There is a lot to think about. Before drawing up battle lines, trans people need to consider carefully what it is that we are fighting for. There is a very real risk that the acrimonious arguments between trans activists and gender-critical feminists of recent years will only get worse and my fear is that if this happens, it will ultimately hurt trans people the most.