FOR WOMEN SCOTLAND: WHAT THEIR VICTORY MEANS

Let me start by offering my hearty congratulations and heartfelt thanks to Marion, Trina, Susan and all at For Women Scotland for their sensational victory in the Court of Session this week. They have done a mighty service to every person in Scotland who still has a grip on reality.

For all non-legal folks, be in no doubt about the importance of this decision. It comes from the Inner House of the Court of Session, which is Scotland’s highest civil court. It is therefore, as of now, the definitive and authoritative statement of Scots law on the matters it covers.

What the decision covers

One very important matter that the decision covers is the definition of “sex”, and of “woman” and “man”, for the purposes of the Equality Act 2010.

This is what the court said about that:

“[A] reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman. For this purpose a man is a male of any age; and a woman is a female of any age…. [W]hen one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female.… Provisions in favour of women, in this context, by definition exclude those who are biologically male.”

This is unequivocal.

It means that whenever the protections provided by the Equality Act are being considered in Scotland and the question arises of what a “man” or a “woman” is in the context of those protections, a man is a person of any age who is “biologically male” and a woman is a person of any age who is “biologically female”.

Legal definitions

At this point we should perhaps remind ourselves of this:

Contrary to what those in thrall to poststructuralist “thought” believe (or purport to believe), there will not be the slightest problem for lawyers in defining further, if need be, what “biological sex” means, or what being “biologically female” or “biologically male” entails.

If lawyers can come up with legally workable definitions to differentiate between a “cake” and a “biscuit” (as they famously can), they can certainly – if called upon – come up with workable definitions to differentiate a biological man from a biological woman.

They could perhaps start with anyone of any age who has ever given birth (“biologically female”) and work from there.

Even the statistically tiny instances of so-called “intersex” conditions will be a comparative dawdle.

It’s perfectly clear, then.

In Scotland, whenever the protected characteristic of “sex” and the protections against discrimination for the “women” and “men” who comprise that characteristic under the Equality Act are being considered:

A woman is someone who is biologically female.

A man is someone who is biologically male.

The Gender Recognition Act 2004

There may be one important wrinkle to this. Although the court cited section 9 of the Gender Recognition Act in its decision, it didn’t spell out in any detail how the provision interacts with the unequivocal guidance given above.

Section 9(1) says this:

“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

Now, one thing that most people on all sides of the “gender” argument seem to agree on is that “gender” and “sex” do not nowadays mean the same thing. The days are long gone when “gender” was just a polite or posher way of saying “sex”.

So the conflation here of “sex” and “gender” (so that by changing “gender” you legally change sex) is either a trick that was pulled in 2004 by very savvy “gender” activists, rightly seeing it as the thin end of the future wedge (my own view) or it’s a legal fiction that was granted on compassionate grounds to ease the suffering of people with the medical condition of “gender dysphoria” (the view of people kinder than I am on this one).

Either way, the result is that a person with a gender recognition certificate obtained under the Act changes sex legally by changing their “gender”, and does so “for all purposes”.

I honestly don’t know where this fits exactly with the court’s authoritative definition of “woman” in the For Women Scotland case and I wish the court had specifically addressed it.

At its very highest, though, it simply adds those biological males who have acquired the legal fiction of being women to the protected characteristic of “woman” and those biological females who have acquired the legal fiction of being men to the protected characteristic of “man”.

It does nothing to alter or dilute the fundamental and authoritative distinction now made by the court.

In fact, it may even provide a slightly clearer possibility of what an “acquired gender/sex” might actually be in the eyes of the law; namely, the legal fiction granted to you by legislation that you’re biologically female when you’re actually biologically male – and vice versa.

The Scottish Government and its enforced policies of “trans inclusion”

The court’s decision in the For Women Scotland case is in my view a defeat of catastrophic proportions for the Scottish Government.

Just how catastrophic will only emerge as the dominoes start to tumble but the most immediate casualty must surely be the Government’s enforced “trans inclusive” funding policies, in terms of which service organisations which are, in terms, exclusively for women must nonetheless make provision for serving biological males in order to qualify for Government funding.

If they refuse to admit biological males, as a few brave and principled organisations continue to do, they must do so without any funding from the Scottish Government and its “feminist to my fingertips” First Minister.

Well, I won’t keep you in suspense.

In my opinion, the court’s decision now confirms what some of us have suspected for a long time.

That policy is unlawful, and should be struck down if challenged.

Why the Scottish Government is acting unlawfully (again)

The court in its decision discussed not only the protected characteristic of “sex” under the Equality Act but also the equally protected characteristic of “gender reassignment”. This is the characteristic on which the Scottish Government relies in imposing its “trans inclusive” funding policies.

In terms of the Act, a person has that protected characteristic “if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

You’ll note immediately that once again we have the conflation of “sex” and “gender” that bedevils all legal discussion of these matters and that, frankly, should cause every lawyer involved in the drafting of these provisions to hang their heads in shame.

To take just one example, what on earth are non-physiological “attributes of sex”? Getting drunk and wanting to fight everyone for males, maybe? Or being rubbish at reversing a car for females? Or could it really mean just calling yourself Kylie and applying some lippy?

But I digress…

I know of no legal authority that tells us when the process of gender/sex reassignment stops being a process and becomes a done deal. As discussed above, one possibility is that the obtaining of a gender recognition certificate concludes the process.

However, the court in For Women Scotland was quite clear in stating that just because some biologically male people might have legally changed sex to female, that by no means entails that all biologically male people undergoing the process of gender reassignment can be treated as female.

The court specifically noted that the Equality Act of 2010

“… maintained the distinct categories of protected characteristics [of sex and gender reassignment], and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate under the 2004 [Gender Recognition] Act were limited.”

In other words, the court was quite clear in saying that, although a transgender person undoubtedly qualifies for the protected characteristic of gender reassignment, there is no legal authority

“… for the proposition that a transgender person possesses the protected characteristic of the sex in which they present.”

Accordingly, the cases put before the court

“… do not vouch the proposition that sex and gender reassignment are to be conflated or combined.”

Rather, the protected categories of “sex” on the one hand and “gender reassignment” on the other are separate and distinct. You don’t automatically (or arguably ever) become a “woman” for the purposes of the protected characteristic of “sex” by means of belonging to the separate protected characteristic of “gender reassignment” while being a biological man.

Maybe you can do it by completing the reassignment process (whatever that may involve) and maybe you can do it by obtaining a gender recognition certificate under the 2004 Act but you absolutely can’t do it just by undergoing gender reassignment under the 2010 Act.

Where this leaves the Scottish Government and women’s services

As I’ve said, it’s a pity that the court didn’t go on and say more about where the “limited” number of biological males who have obtained gender recognition certificates fit into this picture.

But what is beyond any doubt now is that in Scotland biological males who have not obtained a gender recognition certificate, and who are in the process of gender reassignment, do not possess the protected characteristic of “woman” for the purposes of the Equality Act.

In other words, in the law of Scotland as it stands today, and with the possible exception only of those with a gender recognition certificate, “transwomen” are not women.

The law, then, is directly contrary to the “trans inclusionary” funding policies of the Scottish Government, which have for years now forced women’s organisations to include biological males on the grounds that any biological male at any stage of the gender reassignment process has the protected characteristic of “woman” under the Equality Act and is thus entitled to use women’s single sex services.

(I should say for completeness that I have seen it argued that the entitlement of biological males to use women’s single-sex services arises because to exclude them would be to discriminate against their “gender reassignment” characteristic itself. This is obvious gibberish, as the court’s decision confirms. No-one is arguing that biological males should be excluded from women’s services because they’re undergoing gender reassignment. Self-evidently, it’s because they’re biological males.)

Among many other potential consequences of the law of Scotland being now clear at last is the distinct possibility that women’s single-sex services could lose their exemption to provide those services under the Act if they continue to bow down to the Government edict and include biological males among their service users and, in one infamous case, even among their employees.

Because to be exempt from discriminating against against those with a protected characteristic under the Act – in this case, discriminating by excluding the protected characteristic of biological men from your services – you have to show good reasons for what would otherwise be unlawful discrimination against those who belong to that characteristic, and then you have to exclude them all.

What the Scottish Government’s “trans inclusionary” funding edict says to women’s service organisations is: you must include some biological men – all of the ones who call themselves “transgender women” – but it’s still fine to exclude the rest.

Nuh-uh.

That’s exactly what the court has just ruled against in For Women Scotland.

Every one of these organisations should be consulting their lawyers right now.