So, I've finally got the time to do a summary of the 'What Is A Woman?' case held at the Supreme Court (SC) this past week. I apologise in advance for the summary being quite long: it was two full days of legal arguments and questions, so very little waffle. I will still miss out a lot, so I'll be happy to clarify or add stuff if you have questions.
First of, what and why was there a case? The Scottish government passed legislation to try to improve the representation of women on public sector boards. They initially defined 'women' to include those living as women or those intending to change their gender i.e. they included men self-identifying as women. Women for Scotland (WFS) successful sued against this definition of women so the Scottish government tried again, this time defining women to include transgender women with a GRC. Specifically, and importantly, they said that the definition of 'women; was the same as in the Equalities Act (EA). WS again sued, but lost the case. So the question before the SC is whether or not the definition of a woman includes transwomen with a GRC.
I think it's been said on here that Amnesty supported the SG position, saying that gender recognition is a human right (no mention of women's rights of course
).
The SG argument in court is that anyone with a GRC is a woman because the GRC Act states that anyone with a GRC is 'a woman for all purposes'. WFS argue that sex is an immutable biological fact and where the EA and other legislation use the word 'sex', they mean the word to be used in its ordinary sense and that the court should look at biological reality and not legal fantasies.
During the first day of the hearing, it really felt as if the judges were still considering transgender women to be a very small minority of people who would have or were planning to have surgery. They seemed to have an image of transgender women who actually pass as women. It was interesting to see them realise that wasn't the case. They were particularly interested to understand what the 'living as a woman' requirement in the GRC act entailed. Indeed, at one point the SG lawyer promised to let us all know what this 'living as a woman' meant after lunch. Many of of waited with bated breath so that we could make sure that we too were living appropriately as a woman. Sadly, we are none the wiser, as said lawyer returned after lunch and said that the she didn't have the answer. So lads, we'll all just have to bumble along in the hope that we are just about managing to live as women. I would suggest bright red lipstick, heels and fishnet stockings as a bare minimum......
Anyhow, on a more serious note. The SG lawyer was compelled to state that transgender women without a GRC are most definitely not women. She had no choice. The SC judges were already surprised that the requirement for a GRC is pretty much just wanting one. One problem that arises from the SG position is that it is an offence to ask someone if they have a GRC, or to reveal that fact to a third party. Again, I think that this was put in the legislation because they were thinking of someone who has had surgery and passes for a woman, and then someone revealing that they were a biological man. In reality, the problem is that if you can't ask if someone has a GRC, then how can you ensure that you don't discriminate against them if they are now to be treated as a woman for example.
To give an example: if you have two TiM, one with a GRC and the other without, who want to gain entry into a women's refuge, then according to the SG, the refuge would be obliged to admit the TiM with a GRC, but not the other. However, how does the refuge know that the first person has a GRC if you're not allowed to ask? The SG said that you can ask to see their birth certificate. The SC judges suggested that that might not be practical. Not to mention that asking to see the birth certificate would really be a roundabout way for asking if they have a GRC, so conceivably the TiM might object. Secondly, if you then admit the TiM into the refuge because you've seen their GRC, you are then not allowed to tell anyone else within the refuge why you have allowed them in. So, other women will just see a TiM amd not understand why this person has been allowed to enter a women's safe space.
On the question of lebians dating associations, the SG lawyer said that yes, lesbian associations of over 25 members would not be allowed to refuse entry to TiMs with GRC, as if they are attracted to women, they are now lesbians, so have to be admitted.....She pretty much said that the lesbains didn't have to engage with the TiM and that the TiM would just be lesbains who the other lesbians weren''t attracted to. Rather like if a lesbian isn't attracted to lesbians with red hair...One judge asked whether or not that had a rather 'chilling effect' for lesbians. The SG lawyer also suggested that the lesbians could reconvene as a gender critical group of lesbians and use that as a way of refusing entry to TiM with GRCs. At this point, it al became a bit meta because she referenced the Maya Forstater ruling on gender critical beliefs - Maya was sitting in the court behind her and gave a wide smile at that intervention.
So lesbians can't meet as lesbians who are women attracted to women, they have to meet as women who are attracted to women with gender critical beliefs. No-one asked what do you do if the
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