The Supreme Court hearing on what a ‘woman’ is is an existential attack on trans people like me

Today continues the Supreme Court hearing of the For Women Scotland v The Scottish Ministers appeal. Ostensibly, this case concerns guidance issued by the Scottish government about who can be considered for places on boards of public bodies in Scotland. In fact, it comes down to a dispute about the meaning of the word “sex” in the UK Equality Act 2010, the definition of “woman” and “man” under that act – and the place of trans people in our society.

For Women Scotland, supported by intervening “gender-critical” or anti-trans organisations, argues that “sex” can only mean “biological” sex, defined by someone’s chromosomes from conception. The Scottish government, supported by interventions from the UK Equalities and Human Rights Commission and the international human rights organisation Amnesty says no, “sex” in the Equality Act includes transgender people who have been through the gender recognition process established by the Gender Recognition Act 2004 (GRA), obtained a Gender Recognition Certificate (GRC) and so who have gained the right to be recognised in their affirmed gender, or sex (both acts use “sex” and “gender” interchangeably).

Many of the Scottish and London bar are involved in this case, including two members of my chambers, Old Square. We have acted in a number of trans or gender-critical cases on both sides.

Those who support For Women Scotland say that a finding which upholds the Scottish rulings would be disastrous for women’s rights. Their position appears to rest on exaggeration and hyperbole. Writing in the Daily Mail, Julie Bindel said this outcome would lead to the “destruction” of women’s rights. Given that the rulings have been in place since 2022 and women’s rights appear not to have been destroyed in the past couple of years, this seems polemic at best.

The committee of the Scottish parliament, which took extensive evidence during the passage of the Gender Recognition Reform Bill there, recorded that “no concrete examples” had been given of difficulties caused by the gender recognition of trans people. The attitude of the gender-critical organisations is illustrated by the following exchange between the presiding judges in the case, Lady Rose and Lady Simler, with Ben Cooper KC of Old Square Chambers answering on behalf of the gender-critical organisation Sex Matters:

Lady Rose: “Under your definition of ‘biological sex’, a trans woman who has undergone gender reassignment and has a GRC – is she a woman?”

Ben Cooper KC [for Sex Matters]: “No.”

Lady Rose: “Then who are they?”

Lady Simler: “A third gender?”

Ben Cooper KC [for Sex Matters]: “A man.”

This attitude – a lack of acceptance of trans people – appears to be the driving force behind the attempt to exclude trans people from protection in their affirmed gender.

A ruling that “sex” in the Equality Act does not include the recognised sex of those who have undergone gender recognition would be significantly detrimental to the rights and protections that trans people have enjoyed for 25 years – ever since the 1999 regulations (now absorbed into the Equality Act) first provided protection for them under UK law.

The regime established by the Gender Recognition Act 2004 and Equality Act 2010 is clear. Trans people are protected both under the protected characteristic of gender reassignment and the sex they are recognised or perceived to hold, with certain exceptions, like the provisions to permit the exclusion of trans people from sport where required for safety or fair competition, or to avoid religions having to appoint priests of a gender contrary to their teachings.

This is exactly parallel to the protection women have under the sex discrimination provisions, subject to “genuine occupational requirement” exceptions that allow, for example, a theatre to cast a male Romeo or female Juliet, which would otherwise be unlawful discrimination. The position adopted by For Women Scotland is inherently illogical in that the regime established by the two acts allows for the integration of trans people, with certain exceptions. Were “sex” in the Equality Act purely biological, the exceptions would not be needed.

Other absurdities arise from their position, such as forcing masculine-looking trans men to use female facilities and vice versa. And that is without any consideration of enforcement. Are UK citizens going to need to carry our birth certificates to use public facilities or to be subject to intrusive examinations or questioning? Evidence from the bathroom bills in the US is that such expressions of public bigotry affect women who do not reach some mythical standard far more than the tiny number of trans people. The recent hounding of President Biden’s press secretary Sabrina Singh, and Michelle Obama and Brigitte Macron, on the basis that all three might be trans (none of them are), are cases in point.

Trans people would say that they ask nothing more of society than to live freely with the rights, privileges and protections that other citizens enjoy – including being recognised for who they are. In the case of Christine Goodwin v United Kingdom in the European Court of Human Rights in 2002, which led to the UK Gender Recognition Act, the court said:

“No concrete or substantial hardship or detriment to the public interest has indeed been demonstrated as likely to flow from any change to the status [legal recognition of gender] of transsexuals and, as regards other possible consequences, the Court considers that society may reasonably be expected to tolerate a certain inconvenience to enable individuals to live in dignity and worth in accordance with the sexual identity chosen by them at great personal cost.”

I watched the livestream of yesterday’s hearing. Aidan O’Neill KC, on behalf of For Women Scotland, seemed to spend his time making simple matters complex and complex matters incomprehensible – an interesting tactic or a consequence of his client’s position, I wonder?

Accommodating a group, such as trans people, who challenge the conventional boundaries of sex and gender will inevitably involve some complexity. The two acts do that with admirable clarity and have done so for decades, as I have confidence that the Supreme Court will find. Today, the court will hear from the Scottish Government and Amnesty, but it may be weeks or months before judgment appears. Trans people will be waiting with anticipation to hear whether the law continues to value and protect them.