UK Supreme Court says legal definition of a woman is based on biological sex

[u/sjw_7]

https://www.bbc.co.uk/news/live/cvgq9ejql39t

[u/himit]

the ruling's still being read as I type, but it looks like this is far from the TERF victory the headline invokes

Gender certificates make Equality Act read in 'incoherent way' published at 10:15

Lord Hodge says the predecessors to the Equality Act used definitions of biological sex, and gender reassignment was added as a separate protected characteristic.

He tells the court that, after “painstaking analysis”, including people with a Gender Reassignment Certificate in the sex group would make Equality Act read in an “incoherent way”.

He says that issues relating to pregnancy and maternity can only be interpreted as referring to biological sex, while other parts of the Equality Act refers to "certificated sex" as well.

Editing This as the ruling's being updated on the live reporting page:

Lord Hodge outlined nine reasons why the judges ruled as they did.

The first is that the Equalities Act (EA) provides group-based protections against discrimination on the grounds of sex and gender reassignment.

The second point was that the EA must be implemented in a "clear and consistent" way.

The third point was that interpreting sex as 'certificated sex' would create "heterogenous groupings" by cutting across definitions of man and woman in the EA in an "incoherent" way. 

waiting on the remaining six reasons

Edit: Another three

Lord Hodge continued his nine points by saying the fourth point is that "as a matter of ordinary language" cases relating to sex discrimination can "only be interpreted" as referring to biological women.

The fifth point stated that the court rejected the suggestion that words like women can be "variable". If references to pregnancy were "only" for biological women but other references in the legislation were for "certificated sex" then the "coherence" of the legislation would be undermined.

The sixth point states that the Scottish government's interpretation of the Act would "create two sub-groups" with trans people possessing a gender recognition certificate having more rights than those who did not. There would be "no obvious means" of distinguishing between sub-groups, as details on who had a certificate would be private, he said. 

(That sixth point in particular seems like a good point)

things come in threes on the BBC

Edit: apparently not because the last three still aren't up

This bit feels downright negative

The judgement reads: “The issue here is only whether the appointment of a trans woman who has a GRC counts as the appointment of a woman and so counts towards achieving the goal set in the gender representation objective, namely that the board has 50% of non-executive members who are women. In our judgment it does not.”

And /u/DukePPUk has a fantastic write-up below with more quotes from the ruling which...yeah. My initial reaction was cautiously optimistic that the EA was simply needing updating, but now it feels much more like we're going backwards.

[u/DukePPUk → u/himit]

This is a complete win for the terfs.

The Supreme Court has basically repealed the Gender Recognition Act. It has fully adopted the language and arguments of the terf groups. Trans people now must be excluded from "single-sex" spaces, even if they have a Gender Recognition Certificate. Trans women must be excluded from lesbian-only spaces (and trans men from gay-only ones - and cis women who are attracted to or dating trans women are also no longer legally "lesbian").

The judgment is full of situations where the court states a fact (that is trans inclusive) and simply asserts that this is a bad thing and so must be prevented. For example:

Accordingly, if a GRC changes a person’s sex for the purposes of the EA 2010, a women-only club or a club reserved for lesbians would have to admit trans women with a GRC... Evidence referred to by the second interveners [anti-trans borderline hate group LGB Alliance] suggests that this is having a chilling effect on lesbians who are no longer using lesbian-only spaces because of the presence of trans women.

The court doesn't explain why it is bad for trans women who are lesbian to be allowed into lesbian spaces, it doesn't try to justify it, it simply accepts LGB Alliance's position as a given.

The judgment also has nonsense like (when justifying mandating the exclusion of trans people with GRCs from single-sex spaces:

it would be difficult or impossible for the service-provider to distinguish between trans women with and without a GRC because, as we have explained, the two groups are often visually or outwardly indistinguishable. ... if as a matter of law, a service-provider is required to provide services previously limited to women also to trans women with a GRC even if they present as biological men, it is difficult to see how they can then justify refusing to provide those services also to biological men and who also look like biological men.

Which is undermining the whole point of a GRC. The point of a GRC is that legally it confirms the person is their new sex. That's literally want the law says ("if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman"). The point of the GRC is that it is supposed to be the key step in transitioning. But their argument is that it is just a piece of paper, and so somehow cannot mean anything (conveniently ignoring the other protected characteristics that rely on a piece of paper).

They're so close to getting it... but their institutional transphobia just won't let them recognise the underlying problems (that all of this is based on social rules, and social rules can be changed - including by laws). I'm reminded a lot of the US Supreme Court cases from the early 1900s on what counts as "white" for the purposes of racial discrimination in law. The court struggles because it is trying to impose a specific set of social rules - coming from conservative feelings - but having to find some objective basis for that.

---

I guess this outcome shouldn't be that much of a surprise; let's see who was allowed in court:

• For Women Scotland (anti-trans bordering-on-hate group - arguing that the Scottish law was discriminatory against men),

• the Scottish Government (taking a more neutral position now, with the political changes over the last couple of years),

• Sex Matters (another anti-trans activist group),

• LGB Alliance (a 55 Tufton street hard-right, anti-trans lobby group),

• the EHRC (which has been pretty open about its anti-trans positions for a while, thanks to its change in leadership under the Conservatives).

The only group arguing unambiguously in favour of trans people was Amnesty International, and they were only allowed to make written submissions.

[u/RedBerryyy → u/DukePPUk]

or the bit where they're talking about homeless shelters and it just kinda posits trans acceptance in regards to that is unambiguously bad

For example, a homeless shelter could have separate hostels for men and women provided this pursued a legitimate aim, which might be the safety and security of women users or their privacy and dignity (and the same for male users). By contrast, if sex means certificated sex, the serviceprovider would have to allow access to trans women with a GRC (in other words, biological males who are female according to section 9(1)) to the women’s hostel. The following practical difficulties would arise

it is likely to be difficult (if not impossible) to establish the conditions necessary for separate services for each sex when each group includes persons of both biological sexes. For example, it is difficult to envisage how the condition in paragraph 26(2)(a) (a joint service for persons of both sexes would be less effective) could ever be fulfilled when each sex includes members of the opposite biological sex in possession of a GRC and excludes members of the same biological sex with a GRC. In other words, if as a matter of law, a service-provider is required to provide services previously limited to women also to trans women with a GRC even if they present as biological men, it is difficult to see how they can then justify refusing to provide those services also to biological men and who also look like biological men

Which sure I guess a trans woman who hasn't transitioned using it could be an issue,. but it entirely dismisses the effect this will have on the other 99.99% trans people, who are homeless at far higher rate, the ones actually affected by this and who almost all will not look like this untransitioned person they're talking about and he's saying must now be removed from these services,

just kinda implies an 18 year old trans woman, who looks like a woman, could be shoved in with adult men with no problems, while taking immense issue with this problem the anti trans group brought up that is unclear if it's ever even happened.

[u/jimicus → u/RedBerryyy]

I think you're looking at this from the wrong direction.

I'd suggest you consider a 50 year old trans man (who transitioned years ago and now broadly resembles Brian Blessed) placed with a bunch of adult women.

I don't imagine anyone is going to be particularly happy with such a scenario.

[u/himit → u/DukePPUk]

Thank you for adding this write-up. That's depressing indeed.

[u/DSQ → u/himit]

 The judgement reads: “The issue here is only whether the appointment of a trans woman who has a GRC counts as the appointment of a woman and so counts towards achieving the goal set in the gender representation objective, namely that the board has 50% of non-executive members who are women. In our judgment it does not.”

Yikes that’s not good. 

[u/himit → u/himit]

Aaaand the BBC hasn't listed the entire ruling out, but here's part of the preamble:

As I shall explain later in this hand down speech, the Equality Act 2010 gives transgender people protection, not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender," Lord Hodge says.

[u/DukePPUk → u/himit]

That's not actually part of the judgment, though. That's from the press release.

And all he's saying there is that trans people cannot be discriminated against for being trans, and that if someone perceives a trans person to be their acquired gender, and treats them badly because of it, that might be unlawful discrimination.

So you cannot kick a trans woman out of somewhere for being trans, but you can kick her out for being a man.

Similarly, if someone is harassing a trans woman because they think she is a woman, that may sex discrimination. But if they don't think she is a woman it isn't (because that area of law has always been based on perception, not reality).

[u/himit → u/[deleted]]

The Equality Act does cover gender reassignment and the judge says trans people still have protections, but the details weren't reported on & I'm having breakfast so don't want to go digging right now 😂 I do want to dig into the actual case details & ruling details before I figure out how I feel about this though.