That said, I think the ruling does something interesting. It makes the legal distinction between gender and biological sex clear and explicit, something many anti-trans activists deny is a real difference. It also reaffirms trans rights against discrimination based on assigned gender.
I'm not trying to say it's a good decision, but it's one that could be leveraged for potentially good things, including Parliament revising the Equality Act's related wording to be specifically about legal gender instead of biological sex. Something that is already being discussed.
I appreciate trying to find a silver-lining in these dark clouds. Some additional thoughts…
The
UK Equality Act 2010 already made clear protections of broader discrimination based on “gender reassignment” (their term) - that wasn’t clarified by this ruling; the Court only made clear that this ruling does not remove gender as a protected characteristic outside of single-sex spaces. The Equality Act was
intended to make no distinction between sex and gender reassignment. It didn’t have to. The
Gender Recognition Act 2004 already provides legal recognition for trans people as members of the
sex aligned with their gender. A trans woman with a
Gender Recognition Certificate is legally “female”. The Equality Act defines a “woman” as “female”. Therefore, a trans woman is legally a “woman”. What
anti-trans activists had been fighting for, even before this Supreme Court case, was that gender should not be a protected characteristic as it applies to single-sex spaces, and the Equality Act should be changed to reflect that. Rather than having to change the Equality Act to say that only biological women are “women”, the Supreme Court did all the work for them by redefining what “woman” means. This gave anti-trans activists everything they could have hoped for.
Parliment could theoterically try to revise the UK Equality Act to redefine “woman” to include “gender”, but there appears to be neither the political will, or liklihood of it surviving legal challenges given this Supreme Court ruling, which was not simply based on the technicality of an ambiguous definition of “woman”. Recall that this whole case started in Scotland, where Scottish Parliament passed the
Gender Representation on Public Boards Act 2018, which
did define the term “woman” as including people with the protected characteristic of gender reassignment. The activist group
For Women Scotland (FWS, and backed by JK Rowling), challenged the definition, and subsequent legislation removed the definition of “woman”, bringing it in line with the Equality Act. FWS was obviously not happy with that, and they appealed, and it eventually made its way to the UK Supreme Court. Keeping “sex” as an
immutable protected characteristic provides legal “clarity” to a host of otherwise seemingly complicated legal challenges. The Supreme Court knew damn well what the meaning of “woman” in UK Equality Act was, but they, at best, just didn’t want to deal with it, and at worst, didn’t like it.
This is going to be a very hard nut to crack, I don’t think it will be as easy as just making a few changes to the Equality Act language. It doesn’t appear to be a case of “do better” with the definitions and try again. And even
if there's eventually the political will, and even
if it can overcome legal challenges, it will likely still take many
years to reverse. Meanwhile, they are wasting no time in implementing this decision, as the chair of the
Equality and Human Rights Commission is already giddily drafting up new statutory guidance based on the decision for implementation as soon as this summer (yes, that’s right, the chair of the EHRC that is responsible for the
promotion and enforcement of equality and non-discrimination laws in England is a bigot... sound familiar?). Like the Cass Report, this Supreme Court decision is likely to be politically weaponized both in the UK and in the US to reverse trans rights.
I also want to add a personal note to this…
I of course accept that my biological sex is male (at least in the ways that matter). But just like “sex” is actually more nuanced and complicated than XX/XY (and even more so when trans people have had gender-affirming surgery, such as myself), “gender” is not simply a social construct as many people understand it. To probably most cisgender people who understand the social construct of “gender”, it is
only recognizable as a social construct. However, setting aside my genetic profile or my physical attributes, I am still female. I am still a woman regardless of the way I talk, or the way I dress, or what interests I have. Unfortunately, we don’t have a unique word for “gender” in the way many trans people experience it, which may be a significant part of the problem. “Gender” (
not as a social construct) is an innate part of my
being - it’s what makes me both a female and a woman despite my XY chromosones. It’s an experience of
innate gender that most cisgender people take for granted because there is no schism for them between their biological sex and their innate gender - everything aligns in a way that they can’t distinguish one behind the other.
So it’s rather offensive to me when people think there’s a way to separate “sex” and “female” and “woman”
from “gender” when it comes to anything other than the scientific understanding of biology and the medical nuances of my healthcare. Of course the UK Supreme Court’s decision is not intended to regulate the definition of “sex” or “woman” for the sake of science or my health, it is intended to regulate society. And in this decision, they declared I am not a woman as it relates to society, I’m actually a man just playing dress-up. And they can go fuck themselves.
Court ruling on ‘woman’ at odds with UK Equality Act aim, says ex-civil servant
How did the UK Supreme Court define a woman and what happens now?
Supreme Court backs 'biological' definition of woman
U.K. Supreme Court issues key ruling on definition of "woman" under existing equality law
Supreme Court judges consider ruling on definition of a woman
Scotland gender representation public boards
Equality Act 2010
