November 1, 2023 - 5:50pm
Today, the Inner House of the Court of Session delivered judgment in the appeal of For Women Scotland v the Scottish Ministers on the meaning of “sex” in the Equality Act, with the feminist group losing their challenge. The decision comes against the backdrop of an increasingly heated public debate on the relationship between trans rights, women’s rights, and gay rights.
It is unlikely that any of these groups will be fully satisfied by the decision. Ordinarily, that might signal a good compromise, but the correct interpretation of the law is rarely determined by splitting the baby.
The key development that comes from this case is the unequivocal conclusion that sex in the Equality Act means biological (or birth) sex unless modified by a Gender Recognition Certificate (GRC). This means that, for example, trans women without GRCs are men for the purposes of the Equality Act, because they are male. The court was clear that they therefore have no right to use or access services intended for the opposite sex. This includes toilets, changing rooms, rape crisis centres and other sex-separated or sex-specific services.
In contrast, if one does have a GRC, the legal position changes. Trans women who have GRCs will be classed as women and trans men who have GRCs will be classed as men. They will have a presumptive right to use the services intended for the opposite sex because they are now legally classed as members of that group.
This does not mean that service providers can never exclude a biological male from a women’s service, however. There is an exception in the Equality Act which allows for this exclusion if it is proportionate, meaning it is more likely to be lawful to exclude a male with a GRC stating they are a woman from a rape crisis centre or a changing room than it will be to exclude them from women-only hair salon or leadership training course.
These exceptions do not apply to associations or educational institutions, however. Associations under the Act are groups of people organised for some purpose where admission is regulated and involves a process of selection and where there are at least 25 members.
The result of this case means that women-only associations, including groups organised for grassroots political advocacy or women’s support networks for victims of male violence will not be allowed to exclude males who have GRCs stating that they are women if that is why they are excluded. Similarly, associations of lesbians or gay men cannot exclude GRC holders on the basis of their biological sex. Any association set up on the basis of biological sex or on an understanding of sexual orientation which is tied to same-sex attraction is, following this judgment, unlawful.
The Court of Session has therefore interpreted the law to mean that there is no protection afforded to biological males and females as distinct groups. Because rights under the Equality Act now depend on possession of a GRC, this strengthens the position of the UK Government in the ongoing judicial review of the use of Section 35 of the Scotland Act to veto the Scottish Gender Recognition Reform Bill.
This case clarifies that a GRC is unequivocally not a mere administrative document. Possession of a certificate has wide ranging consequences under the Act. It is therefore increasingly likely that a court will conclude that a Scottish bill seeking to dramatically modify who can obtain one of these certificates does modify the operation of the Equality Act and therefore may engage Section 35. While not exactly a victory for Westminster, the removal of the right to association for women will inevitably inspire a strong political response.
Dr Michael Foran is a lecturer in law at the University of Glasgow and Senior Fellow at Policy Exchange.
Michael Foran is Senior Fellow, Policy Exchange and Lecturer in Public Law, University of Glasgow
michaelpforan
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SubscribeSo the right I’d presumed to association for gay men like me in Scotland is subject to the invasion of straight women LARPing as gay men. It’s far worse for women and, in particular, lesbians, because gay men won’t have to fend off hulking great autogynephiles and their very real male aggression and physicality. All we’ll have to contend with are deluded and irritating ‘fallopian dudes’ with all their lady-bits intact or with double mastectomy scars and a Frankenstein flesh tube cut from their forearm and grafted above their mons veneris. That and those weird Amish/Abe Lincoln beards and frog voices they all develop once the hormones kick in. Ladies, you don’t look in any way convincing and you are not remotely appealing to gay men.
Adults are entitled to hack their bodies up and live a delusion as much as they wish. It’s another thing to learn that in Scotland, alleged home of the Enlightenment, that these fantasies are recognised in law and that women and gay people are now legally required to accept these dangerously deluded people into our social spaces. Sturgeon’s got a lot to answer for. I never thought I’d say this but Scotland needs the U.K. govt to save us from ourselves … or our freakshow of a ruling coalition and judiciary anyway.
Does the so-called larping “trans identifying female” not apply to heterosexual male associations as well? If so, would this be a potential danger to males vis a vis false assault accusations – apart from the privacy and dignity criteria?
It opens up a whole range of mind bending consequences. I’ve heard that on gay male dating apps (which I thankfully no longer use, being partnered) there are now opportunistic heterosexual men there pretending to be gay, looking for ‘trans men’ to have it off with. Transmen (aka women) who are desperate to have their fantasy ‘gay male masculinity’ validated by an actual man they assume to be a) gay and b) interested. One report has one straight guy on Grindr relating, ‘ok she was a bit hairy but she still had her female genitalia and, boy, did she put out!’.
It’d be funny if it was on Little Britain. Not so much for real life single gay guys just looking for a place to hook up with other gay men. The kind without vaginas.
The gays said straight people weren’t entitled to their own private spaces, that freedom of association must give way to sexual identification. Many straights objected, but the gays (a tiny minority) steamrolled over them and danced on their graves when they finally won.
Now the trannies say that gay people aren’t entitled to their own private spaces, that freedom of association must give way to gender identification. Hearing gays objecting on the basis of freedom of association is just laughable.
You made this bed. You “cut down all the trees in England”. This is what happens. Karma sucks, doesn’t it?
I don’t understand what you’re trying to articulate.
“The gays said straight people weren’t entitled to their own private spaces,”
This can’t be true can it. If you register with a dating app as a heterosexual man it doesn’t match you with other men on the basis that “the gays” insist you must include gay men in the definition of heterosexual. So there are still some private spaces for straight people.
What this judgement says is that the very definition of lesbian/gay as a same-sex attracted woman/man is illegal when it comes to forming associations. The foundation of what it means to be lesbian/gay, same sex attraction, is outlawed in these circumstances.
“The gays said straight people we’re entitled to their own private spaces” When did this ever get said and how would this work in practice- some sort of “gaydar” fitted on doorways? P.S. Michael has been good enough to submit this explanation – he really doesn’t deserve to have it associated with slurs in the comments.
“The gays said straight people weren’t entitled to their own private spaces,”
Can you give some examples of that? I can’t think of any.
Not sure, but I would imagine that if you were starting an amatuer chorus, or any kind of association or club, with “No Gays!” in the by-laws, you would be opening yourself up to legal challenges. My advice would be “don’t put a sign in the window”.
Since it seems many here didn’t get my reference, the entire premise of civil rights law (of which gay rights are an extension) is “you can’t treat that people from different groups differently”. As such, it is 100% antithetical to freedom of association, since if I am actually free to associate (or not associate) with whoever I choose, I may choose not to associate with members of particular groups of people. And if I run any kind of business or group or association, that is illegal.
So hearing a gay man, whose cohorts happily trampled on the freedom of association of others, now lament the loss of his own freedom of association is just pretty funny.
“women and gay people are now legally required to accept these dangerously deluded people into our social spaces.”
It will almost certainly force lesbian women, in particular, to return to the days of associating in secret.
A more thoroughly depressing retrograde step in the service of magical thinking it’s hard to imagine.
Whoever coined the phrase “the endarkenment” could not have put it better.
We already are in the US. Have been for a few years now.
Many lesbian only events are “advertised” by word of mouth and email lists you can only join if you know someone.
Really hard on young lesbians without connections.
Also We fear inviting some out young lesbians as some deeply support transbians and would want them invited.
So even “are you a friend of Dorothy?” isn’t a good enough screening question anymore.
This – meeting n secret – is already happening in England. And will happen more if Starmer becomes PM.
I watched a video of Ouir Nicola spouting the gender twaddle in the Scottish Parliament and the camera panned upto the public viewing gallery. There assembled were the biggest group of deranged weirdos and losers ever seen on a bench. Please tell me why have we let a tiny number of transparent tossers gain access to so much leverage in our society ?
Because too many people, particularly in our major public institutions, are cowards.
Or idiots. It comes to the same thing in the end.
Or cowardly idiots.
“There assembled were the biggest group of deranged weirdos and losers ever seen on a bench.”
You obviously dont watch Premier League football on the telly. 🙂
Never has the expression “cluster f**k” been more appropriate 🙁
When the UK govt becomes Starmer’s, I’m afraid it will no longer want to.
There is no doubt that the trannies are hysterically bad attempts to resemble the other sex. My solution: Laugh at them. They desperately want to be taken seriously and given respect. Deny this.
I guess gay men and lesbians (of whom I am one) will need to return socially to the closet, meeting only in private homes by invitation. Unless, of course, Scottish authorities believe a GRC trumps property rights as well as material reality.
You are correct that this is obnoxious for gay men, but much more damaging to lesbians. My impression is that most women who “transition” are seeking to escape the drawbacks and dangers of womanhood, and especially lesbianism, more than seeking to invade the fraternity of males. The men, by contrast, are straight autogynephiles (as you note) who get off sexually on inserting themselves (figuratively and literally) into female space.
I shuddered to see two young sisters enter the women’s room alone at my workplace the other day, their mother likely oblivious that any man could follow them in. That’s the law here in Colorado, supported by our gay male governor. Perhaps he’d feel different if he were lesbian. I’m sure there’s a certificate to claim that — though one isn’t needed.
What an amazingly trenchant and precise account of reality! Thank you!
“Similarly, associations of lesbians or gay men cannot exclude GRC holders on the basis of their biological sex.”
I am neither a woman nor gay, but I find it utterly unconscionable if lesbians who do not wish to admit men into their associations are now compelled by law to do so. How same sex attraction does not count as a legitimate purpose for excluding males with GRCs is incomprehensible.
Lesbian women have fought so hard for so long, often in the face of unspeakable abuse, only to be told that they are subservient to the fantastical thinking of men who believe they can change sex.
I don’t know if any women who are negatively impacted by this read the comments on Unherd. But if you do, please know that for whatever it is worth, I will always support you.
Like you, RM, I’m neither woman nor gay. As I understand it, the GRA/GRC creates a legal fiction which, despite being a fiction, is legally enforceable. That’s its purpose.
Shame on the court for not recognising that the distinction between legally female and actually female, when it comes to association based on sexual attraction, is paramount.
It doesn’t end here, I’m sure.
Thank you for your support, RM, in response to this latest example of intransanity.
Woman and gay. Thank you, thank you.
One aspect which never seems to get mentioned, but is highly relevant, is that one is not permitted to ask a man claiming to be a woman whether he has a GRC. It’s bad enough that men with GRCs are apparently permitted to claim to be lesbians and benefit from things set up to address women’s disadvantage, but any man can CLAIM to have a GRC and can’t be challenged. Hence, this is self-ID by the back door.
Thank you. Never heard of that.
Thankfully Michael has said on X that it is reasonable to ask to see the certificate and exclude if it can’t be produced. The existing situation stands where you can’t discuss if you know eg via your job if someone has a GRC – the situation that arose leading to hospital staff denying a rape could have happened on their hospital ward because there was no “man” there. It took a police investigation to clarify that a man was there- but had a certificate.
The Act provides (Supplementary 22) a list of to who / when disclosure of a GRC may be made.
But ordinary people don’t figure in there.
Organisations has to prove that their motives are ‘proportionate’, no doubt incurring legal costs to do so.
There are too many obstacles.
I’m not a lawyer but I’d have thought that this decision must empower people to ask for evidence of a GRC.
If there is now a clear right to exclude those without then there must be the right to see evidence.
I think the legal position is as set out here:
Section 22
Prohibition on disclosure of information
(1) It is an offence for a person who has acquired protected information in an official capacity to disclose the information to any other person.
(2) “Protected information” means information which relates to a person who has made an application under section 1(1) and which— (a) concerns that application or any application by the person [F1under section [F24A,] [F34C, 4F,] 5(2)[F4, 5A(2)]or 6(1)] [F1under any other section of this Act], or (b) if the application under section 1(1) is granted, otherwise concerns the person’s gender before it becomes the acquired gender.
(3) A person acquires protected information in an official capacity if the person acquires it— (a) in connection with the person’s functions as a member of the civil service, a constable or the holder of any other public office or in connection with the functions of a local or public authority or of a voluntary organisation, (b) as an employer, or prospective employer, of the person to whom the information relates or as a person employed by such an employer or prospective employer, or (c) in the course of, or otherwise in connection with, the conduct of business or the supply of professional services.
(4) But it is not an offence under this section to disclose protected information relating to a person if— (a) the information does not enable that person to be identified, (b) that person has agreed to the disclosure of the information, (c) the information is protected information by virtue of subsection (2)(b) and the person by whom the disclosure is made does not know or believe that a full gender recognition certificate has been issued, (d) the disclosure is in accordance with an order of a court or tribunal, (e) the disclosure is for the purpose of instituting, or otherwise for the purposes of, proceedings before a court or tribunal, (f) the disclosure is for the purpose of preventing or investigating crime, (g) the disclosure is made to the Registrar General for England and Wales, the Registrar General for Scotland or the Registrar General for Northern Ireland, (h) the disclosure is made for the purposes of the social security system or a pension scheme, (i) the disclosure is in accordance with provision made by an order under subsection (5), or (j) the disclosure is in accordance with any provision of, or made by virtue of, an enactment other than this section.
(5) The Secretary of State may by order make provision prescribing circumstances in which the disclosure of protected information is not to constitute an offence under this section.
(6) The power conferred by subsection (5) is exercisable by the Scottish Ministers (rather than the Secretary of State) where the provision to be made is within the legislative competence of the Scottish Parliament.
[F5(6A) The power conferred by subsection (5) is exercisable by the Department of Justice in Northern Ireland (rather than the Secretary of State) where the provision to be made could be made by an Act of the Northern Ireland Assembly without the consent of the Secretary of State (see sections 6 to 8 of the Northern Ireland Act 1998).]
(7) An order under subsection (5) may make provision permitting— (a) disclosure to specified persons or persons of a specified description, (b) disclosure for specified purposes, (c) disclosure of specified descriptions of information, or (d) disclosure by specified persons or persons of a specified description.
(8) A person guilty of an offence under this section is liable on summary conviction to a fine not exceeding level 5 on the standard scale.
It would seem that an officer of an organisation can ask for confirmation that the alleged woman, for example, had a GRC and was thus entitled to enjoy the facilities available to women only but would not be entitled to tell others that he had a GRC and so was legally a woman unless he agreed to this. Hence the ward sister is indeed obliged to say there are only women on the ward if the man has a GRC. All rather unsatisfactory- unsurprisingly so once the law enters into protecting fictions.
I see that as a positive
What about asking ‘her’ if ‘she’ has a willy? Rather more pertinent in most situations, I would have thought.
Apologies – it turns out I had believed a common myth. Apparently one CAN demand to see the Certificate after all. I have a nasty suspicion that certain people might try to term this discrimination on the basis of gender reassignment, but worth a try.
From the outside it looks quite funny – lawyers determine the laws of biology. What about physics? Should we redefine Newton’s third law?
We have this in NYS where I live. I have an adult autistic daughter about whom I worry all the time. I am also a survivor of childhood sexual abuse and rape as an adult woman. I cannot fathom how “feminists” are taking the side of deluded men over women who are survivors of sexual violence, or vulnerable women and girls.
I have spent my life avoiding being in confined spaces with men I don’t know. I panic in certain situations. I don’t bear men any ill will. I love my husband. But men commit 99% of violent sexual assaults, and 93% of violent crimes, per FBI statistics. This doesn’t change when a man puts on a dress and lipstick, or starts taking estrogen. And only 7% of these men have sexual reassignment surgery.
I was recently told by NYS I cannot be guaranteed my daughter will have female only caregivers at state programs, only people who “identify as female.” What madness is this when these men’s needs trump the needs of disabled women? I am not willing to take the risk with my vulnerable daughter’s safety to affirm some man’s desired identity. And why would any woman who calls herself a feminist demand I do so?
People are free to live as they choose. But women fought long and hard to have single sex spaces for safety. To have women’s sports, schools, shelters, hospital wards. These must be maintained, protected. Elderly women in hospitals should not be housed in rooms and wards with men dressed as women. It is not safe. Disabled women should not have their intimate needs cared for by men dressed as women. Women’s needs have to matter.
This is simply a men’s rights movement in a dress.
I am a feminist and I heartily agree with you. It is so-called liberal feminists who support this, eg NOW (national organisation for women). Radical Feminists and gender critical feminists are opposed to gender ideology and it’s consequences in law. If you’re in the US, try contacting WOLF (Women’s Liberation Front) or Women’s Declaration International. They both strongly support single sex care, spaces and services.
Thank you! I know there are good feminists out there. I have Kathleen Stock’s book, and I follow other great women on Twitter. But I am surrounded in my town by the male appeasers. It’s lonely. And it seems we are greatly outnumbered. I have no place in my political party anymore.
Many one-time Democrats feel as you do, myself included. Please don’t lose heart, even if you leave the party; you are not alone.
I will not vote for any candidate spouting gender ideology, from Biden and Harris on down. Thus far, Kennedy is the only Democratic presidential candidate (now running Independent) with the common-sense courage to say males don’t belong in female sports. Meanwhile, Biden wants to change Title IX to allow just that.
Go, WoLF and WDI!
Another unfortunate example of women expected to accommodate the desires, fantasies and fetishes of (some) males.
Well spake. I, too, have no idea why any feminist would support these men over girls and women, nor any idea why any lesbian or gay man would countenance the forced teaming of transactivism with gay rights.
As a feminist and lesbian, I find societal and legal affirmation of male mental illness and/or sexual fetish over female basic rights outrageous. That former allies I once thought sane and principled have chosen to support this addled and/or narcissistic men at such cost to their own is maddening.
I think this whole approach was a mistake, and the ongoing criticisms by groups like KPSS are increasingly justified. Asking a court to differentiate between the concepts of “biological sex” and “legal sex” unwittingly legitimises the division, which is daft – sex is sex. Hope this leads to an increasing pressure to repeal the GRA itself. I recommend anyone interested to go back and read all the prescient commentary and testimony linked to that legislation – people knew how astonishingly stupid it was then and the problems it would inevitably cause
Stonewall and its allies have been very successful in hoodwinking the public – including people who should know better – into believing that gender and sex are the same thing.
I’m not sure about that. I would say they’ve been very successful in hoodwinking the public into believing that when they say gender they mean something different to sex! One of the most frequent canned responses I get when I criticise trans activism to people who have only heard about this issue peripherally and vaguely support it is “but gender and sex aren’t the same thing!” However it’s clear that when trans activists say ‘gender’, it refers to the same thing as sex – only sex that can be self-chosen through wishful thinking, and that supercedes fact
Quite incredible. I hold no belief in transgenderism and therefore in gender nor gender identity and its ideology because the claims about reality, that I am aware of, that constitute the category of transgenderism, are false in my view. As such a belief is not warranted and any claim to such a state is a delusion.
It seems to me lesbianism in fact, is a sexual orientation of a sex toward the same sex, has been superseded by legally lesbian, by virtue of holding a GRC and a legal fiction created for the GRC so that the person holding a GRC is treated in law as something they are not in reality. But does this not ignore the nature of the sexual orientation, a disposition that is a consequence of lesbianism in fact, not of lesbianism in law?
‘Legally Blonde 4: Legally Lesbian’ coming to a cinema near you!
Gender is a grammatical concept used to classify certain words in certain languages. The term was arrogated and applied to people, and statements about them “having gender” are metaphors and, therefore, not literally true. Metaphors are not literally true or they wouldn’t be metaphors. Now, when legal doctrines are premised on untruths, there will be ridiculous and unhappy outcomes.
Amen. The whole idea of ‘Gender’ has created a ‘Tower of Babel’ of deluded thinking. Bring on the day when it all comes crashing down.
One might even call it a “Tower of Babble.” It sure seems that way.
The key development that comes from this case is the unequivocal conclusion that sex in the Equality Act means biological (or birth) sex unless modified by a Gender Recognition Certificate (GRC).
“Why, anybody can have a brain. That’s a very mediocre commodity. Every pusillanimous creature that crawls on the Earth or slinks through slimy seas has a brain. Back where I come from, we have universities, seats of great learning, where men go to become great thinkers. And when they come out, they think deep thoughts and with no more brains than you have. But they have one thing you haven’t got: a diploma.”
I would not see this as neither a victory nor a defeat. It was supposed to merely clarify where we stood and now it is indeed clearer. At the very least you cannot say that you are a woman on your say so.
Now they have to strengthen the GRC (or abolish them), not make them easier to access them.
If anything this judgement goes totally against the idea that a GRC is just a random piece of paper with no important ramifications.
And “santo subito” to Foran for the clear way in which he explains these things!
“ the correct interpretation of the law is rarely determined by splitting the baby” – great turn of phrase, much appreciated.
It does not require the wisdom of Solomon to see through the current SNAFU, however.
Whatever position you take on this, a situation where the difference between a man and a woman is having the right paperwork is a truly surreal one.
Perhaps we should all have a gender certificate. After all, how do I know that the male born, apparently male person I’m sharing the changing room with isn’t secretly a woman inside, with a female gender identity?
How the hell did Scotland get this far out over its skis?
Thank you for this. Does this ruling bind the English courts in any way or is it effective only in Scotland?
Apparently it’s UK wide
“Apparently” according to whom?
I think English courts would be bound to recognise Scottish GRCs in the same way as they accept Scottish marriage certificates. And anyone with a Scottish GRC could then change their English birth cert or UK passport. Hence the need for the UK government to invoke S.35.
How much weight does “I think” carry? Those of us who’ve been following these arguments know that it is regrettably not necessary to have a GRC to change their birth certificate or the gender marker on their passport.
Hey Ho! Western society grabbing the handles of the handcart and heading on its merry way towards…
What does the term ‘transwoman’ even exist then? Today’s liberal judiciary truly is the enemy of democratic and transparent social and political processes.
Long ago, when Europe had democratic regimes, changes to the corpus of legally enforceable conventions were enacted by elected officials, usually in a parliament.
At least, thanks to Brexit, you froggies will be allowed to give the middle finger to ECHR
I dimly remember a political slogan where something-or-other would collapse from the weight of its own contradictions.
It seems an appropriate prediction here.
In some ways, this isn’t surprising, despite the consequences that posters have noted. The 2010 act covers ‘gender reassignment’. This and the 2004 GRA have had far reaching unintended consequences. Unfortunately, the judiciary looks at the law and not the consequences.
Far from making life easier for a few people with gender dysphoria, they have opened up a huge can of worms of social problems. These pieces of legislation need to be revised. I doubt either main party has the will to do it.
Enough already with the trans articles. Not interesting, not important.
Incorrect on both counts. Impressive.
A small point, but can we stop portraying this (in headlines etc) as feminists v trans. Many on both sides of this debate are feminists of one kind or another.
To a great extent the difference appears to be generational. As can be seen from the picture, most of the anti trans side of the debate are not in the first flush of youthful activism.
Equally, portraying it as women versus trans is wrong, too. Plenty of men oppose trans activists, some of them vociferously so (eg Graham Linehan). And parents of school age children, supported by Safe Schools Alliance and Sex Matters.
I agree. But equally, large numbers of women support the trans side (or are indifferent). It’s not a simple feminists v trans issue.
I’m not taking sides – I’d just like accuracy in the way this is presented.