Sex and gender in law and politics

I am a trans woman. I am never going to say my “sex” is male. To threaten me with the offence of making a false answer to the Census, with a maximum fine of £1000, would only increase my determination. I have a GRC, which has never been useful to me, which was expensive and humiliating to obtain, but which by s9 of the Gender Recognition Act ordains that my sex is female; but I would never have said I was male, certainly not after transition, probably not after deciding to transition.

Anti-trans campaigners speak movingly about pregnancy. I understand. Female reproductive biology, its wonder and delight, and the humiliation and threat of it in patriarchy, all matter. The powerlessness and difficulty of new motherhood can radicalise people.

I don’t deny sex is real. But trans people exist. At worst, I have an indefatigable delusion- I believe I am a woman, and cannot be persuaded otherwise. Unless you believe in a “soul”, this is biological, and AI can differentiate trans and cis brains. Recognising trans people does not mean devaluing cis women or their struggles. The great lie is that trans rights are a threat to women’s rights.

Sex and gender are synonyms in law. Gender, in ordinary usage, such as in a form asking your “gender”, is a synonym for sex. The Gender Recognition Act says my sex is female. The Equality Act s7 refers to “gender reassignment” of “transsexual persons”, and the Code of Practice shows trans women use “single sex” services for women. The distinction- sex is physical, gender is cultural- in gender studies cuts both ways. Unless you want to have a baby, or have a health problem, everything else is culture.

The Women and Equalities Committee of the House of Commons, and the Equality and Human Rights Commission, as well as anti-trans hate groups have demanded a legal distinction between sex and gender. I see the benefit for the hate groups: cis women, called “women”, would use single-sex services and transgender women would use the men’s. Perhaps we could still change our sex with two years “in role” and a diagnosis of gender dysphoria, though that is unworkable. Perhaps even with a GRC we could still be excluded. Or the law could be redrafted, so that after we decide to transition trans women could use women’s services unless there was good reason to exclude us, as now. It seems a huge fuss for no benefit.

We used to call ourselves transsexual. The word puts social pressure on us to have surgery, and not everyone wants that, but we could go back to it. I am a woman, not a feminine male.

To threaten criminal prosecution of a trans woman who says her sex is female is cruel and humiliating, yet a hate group tried to get the Scottish courts to do just that. Fortunately, unlike in England, the court refused. The judgment is in this pdf.

The guidance will say, “If you are transgender the answer you give can be different from what is on your birth certificate. You do not need a Gender Recognition Certificate (GRC).” It says nonbinary people must say M or F.

The hate group’s bottomless pockets are shown by this malicious attempt, but their strategy of suing whenever they can imagine a cause of action has backfired. They attempted to argue that the word “sex” has the narrow, exclusive meaning that claims trans women are men, and the judge found the complete opposite. He said the statute should be construed in the interests of society. The Scottish government argued that had changed- as trans people are more and more recognised, the court could say that a trans woman’s sex is female, even if she has no GRC; but the judge said there were trans people in 1920 when the Census Act was enacted, and “sex” was capable of including self-identified or lived sex, even in 1920. So, trans women are women, and always have been. See paragraph 55.

In 2018 the Scottish government wanted to specify that sex included gender identity, for the purposes of the census. That definition was withdrawn. The judge calls this a “no-score draw”- both human rights campaigners and anti-trans campaigners agreed it would cause confusion, though for different reasons. However, that certainly does not mean that sex does not include gender identity (para 48).

The hate group attempted to argue that the case of Bellinger, about a trans woman’s marriage to a cis man, defined the word “sex” in law for all time. The judge said it didn’t: it only defined “sex” for the purposes of marriage in England, in 2003.

In England, the hate group got an interim order against the census on 9 March, when the census was due to take place on 21 March. They got the guidance in England changed by a trick. It is unlikely that the proportion of the population who is trans is significantly different in England and Scotland, but if the Scottish census produces a higher estimate it will show the hate group scared trans people from answering the trans question.

Even without a GRC, I would have said I am female. The judge says an answer provided in good faith and on reasonable grounds is not false, and therefore trans women have this right. As our passports say “Sex/Sexe: F”, it shows our sex is recognised by the State even without a GRC. A cis woman who had never thought she was trans would be answering the sex question falsely if she said she was male; a trans man would not be.

Hate groups say it distorts statistics to include trans women as women. The 2011 census could only estimate the Scottish population as between 5.21 and 5.38 million. There are probably not 170,000 trans people in Scotland. Beside that unavoidable imprecision, the effect of trans people is insignificant.

The Scottish census case provides a host of good legal arguments why trans women are women, and our sex is female. The hate group has scored an own goal.

If you have the time, I recommend reading the judgment. However, it quotes over four pages the hate group’s arguments. I found them horrible. I had to keep taking a break, to reconnect with decency and reality.

27 February 2022: The Inner House heard and dispatched an appeal quickly. Lady Dorrian, the Lord Justice Clerk, who gave the judgment in the Scottish Public Boards case, also gave the judgment here. It made this case considerably less valuable to trans people than the initial judgment might have seemed. See paragraph 23: a trans woman without a GRC can say her sex is female if she likes; but where “matters of status, proof of identity or other important rights” are involved, “it may be necessary to apply a biological definition of sex”.

I always understood that without a GRC I would not have a claim for sex discrimination if an employer preferred a man to me (notwithstanding Neil Gorsuch’s argument). I worried Lady Dorrian’s decision in the Scottish Public Boards case imperils trans women’s rights to enter women’s services, if they do not have a GRC, as Joanna Cherry implies. But, read with the census case, it does not.

6 thoughts on “Sex and gender in law and politics

  1. Hello Claire, sweetie. I have just put a post up on the two seemingly contradictory cases in the Court of Session on Thursday and Friday.

    I think I may be in love with Lord Sandison, who sided with the Scottish Government in stating there is nothing in Scots Law to stop anyone defining their gender on a census, and went further to make the point that Scots Law differs from English Law, and always has done, even within the Union.

    But I was absolutely floored by the judgement of Lady Dorrian, who ruled 24 hours later in a separate case that the Scottish Government had no right to define gender as that breached the Equality Act 2010, which is a reserved matter for Westminster. That alone being depressing, her wording is questionable to say the least; “transsexuals living as women”. Not only is “transsexual” a pejorative term, but to follow that up with “living as women” suggests that transgender women are not women, which of course flies completely in the face of all known knowledge on gender diversity.

    And of course it does not at all help that the EHRC have proven to be firmly in the pocket of transphobes.

    By the way, For Women Scotland, who brought the case against the Scottish Government, claim to be pro-independence, but they are more than happy for equality legislation to be reserved to Westminster. Would it surprise you at all to learn they support the Alba Party?

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    • Lovely to see you here again. I have downloaded the Lord Justice Clerk’s judgment, but not yet read it. It’s sad that Four Transphobes “Scotland” should be trying to reduce the devolved powers. It’s not surprising they support Mr Sleepy Cuddles’ party- their manifesto said nothing under the heading “Women’s Rights” except the lie that trans is bad.

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