Could my sex be “that of a woman” without me being a woman? Could I be a woman, but not a woman according to the definition of “woman” in the Equality Act? Or does the Scottish Public Boards legislation only affect Scottish Public Boards (SPB)? The Outer House of the Court of Session considered that legislation again. The case may be appealed to the Inner House, which previously decided that the definition of “woman” did not include a trans woman without a Gender Recognition Certificate (GRC), for the purposes of the Scottish Parliament’s devolved powers to enact legislation on SPBs. But I have a GRC.
s9 of the Gender Recognition Act (GRA) says my “sex [became] that of a woman” when I got my GRC, and that my acquired gender for all purposes is female. Note “female” not “feminine”- sex and gender are conflated. The Scottish gender recognition Bill leaves this section unchanged.
But s212 of the Equality Act says “’woman’ means a female of any age”. The purpose of s212 was to protect girls: your parents can make a claim under the Equality Act for you before you become adult.
The petitioners in the case, FWS, claim to campaign for women’s rights and children’s rights. However they only campaign against trans rights. This time, they couched it as a loss of rights: a trans man with a GRC would no longer be preferred for appointment to an SPB. They demanded a “rigid biological definition of sex” so that a GRC would change nothing.
To enact the SPB legislation, the Scottish government had obtained specific devolved powers from Westminster. The Scottish government argued that the first FWS case only concerned the extent of those powers, and decided they did not include the right to prefer trans women without a GRC for appointment to SPBs. So the case did not affect any other matter defining “woman”, “man”, “gender” or “sex”. FWS had won almost nothing. My GRC says I am female, so I am female according to the SPB legislation. This does not affect the operation of the Equality Act, which is yet to be decided.
The EHRC intervened, as the public body which supports Equality law. It confirmed the value of a GRC- the GRA shows there is no irreconcilable difference between gender and sex. It is not possible to have an acquired gender without an acquired sex. It agreed with counsel for the Scottish government.
The LGB Alliance intervened to say that trans rights are opposed to gay and lesbian rights. The Equality Network, a real LGB rights campaign group, said the opposite.
The judge looked at the first SPB case, and concluded (para 44) that its basis is that “sex” and “gender reassignment” are separate protected characteristics, not that “sex” in the Equality Act always and only means “biological” sex. The case is authority only on SPBs, not wider discrimination law or the interpretation of the Equality Act.
Then the judge considered whether a trans woman with a GRC recognising her gender as female is a “woman” as defined by the Equality Act. She considered the meaning of the GRA. It says my sex is female. A trans man with a GRC, his sex is male, “for all purposes”. The language is plain.
She then considered the Equality Act. She decided it did not define “woman” as “biological woman”. The word “biological” does not appear in the Act. It did not amend s9 of the GRA which says my sex is female. So, my sex is female. So, para 53, “sex” in the Equality Act includes someone whose sex is recognised by a GRC.
The petition was dismissed.
This may affect the vote later this month on the Scottish gender recognition Bill. A GRC is shown to be important. But I would argue that trans women can still be excluded from women’s services if it is “a proportionate means of achieving a legitimate aim”, because of the Equality Act sch 3 para 28. So the Bill does not, as the fearmongers would have you believe, let men in women’s toilets. It lets women in women’s toilets.
And, once again, the Scottish Public Boards legislation affects the jobs on Scottish Public Boards. A few hundred jobs at most. If there are more men on a board than women, and recruiting a new member a man and woman applicant are equally qualified, the woman should be preferred. The Scottish government wanted that to include all trans women, but the first FWS case decided it did not. Then they wrote guidance saying it included trans women with a GRC, and the second FWS case decided that, yes, it does. But there may never be a Scottish Public Board where a trans woman, with or without a GRC, applies for membership, a man applies at the same time, and they are equally qualified. All that litigation, over years, and it may not affect a single person. The hate campaigners seem to have a bottomless fountain of money for pointless court actions.
My goodness! What complexities we lead ourselves up the garden path with, when we insist on there being only two genders. And why does it matter? I don’t really know why it’s anyone (else)’s business but mine, or yours, his, hers or theirs…but that is the mess we are in. I am tempted to attribute this insistence on only one or the other, to the concepts of ownership and possession of persons, which is one legacy of the patriarchy, though I know that is simplistic.
Thank you for your thought-provoking posts! 😀
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I attribute it to authoritarianism: the desire for clear rules which all must obey, and the belief that anyone breaking those rules is suspicious or dangerous. Some people do not like anything they cannot understand or explain. Others of us realise that is the richness of life.
Added: Neil Degrasse Tyson says, “The universe has no obligation to make sense to you”. I love that. Some people endlessly resent it.
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That’s a lovely quote, and I shall remember it. 😀
The universe can only make so much sense to us: We are not meant to understand it because we live in a relative world, and understanding too much more than this would drive us crazy. So the limited awareness we have is deliberate… At least, that’s what I’ve read…
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