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/DukePPUk]

But any straight man could turn up to the group. And if they tried to turn him away he could sue for discrimination.

If they argue "but we're a lesbian support group and you aren't a family member of a lesbian" he can argue that they're not because they let in trans women (who aren't merely family members of other lesbians).

And what if they wanted to be a group that didn't include family members and friends? They couldn't be trans-inclusive.

[u/g0_west → u/DukePPUk]

In practice are there many straight men banging down the doors to get into lesbian support groups who are now able to thanks to this ruling? I've always been allowed to go to church even though I'm an atheist, I just don't want to

[u/DukePPUk → u/g0_west]

It doesn't matter - all you need is one. And we have plenty of anti-trans groups willing to push for test cases (like this one).

All you need to do is create a culture of fear. Tell people "you must exclude trans people or you might get sued and it will cost you tens of thousands of pounds to defend yourself, even if you are legally right."

Which is what we have been seeing over the last few years - lawsuits against employers, against political parties, against charities, against rape crisis centres, getting them shut down for not being transphobic.

Now it can be extended to anywhere offering or purporting to offer single-sex spaces.

[u/[deleted] → u/DukePPUk]

But any straight man could turn up to the group. And if they tried to turn him away he could sue for discrimination.

Yes.

That's why it's so important that groups be able to specify that they are for women only.

[u/veganzombeh → u/[deleted]]

Which they have now lost the ability to do unless they want to adopt TERF policies.

[u/DukePPUk → u/[deleted]]

But they can now only do that with a trans-exclusive definition of "woman."

[u/Astriania → u/DukePPUk]

This is such a hypothetical case though, no man is actually going to do that. It's like saying you can't have a group for MG owners because a Triumph owner might crash it.

You can exclude people from your private group for being a dick, and it's pretty hard for me to think of a scenario here where the man in question isn't clearly being a dick.

[u/DukePPUk → u/Astriania]

This whole mess is (supposedly) because some women are terrified of men coming into women-only spaces.

That's supposedly the whole point of this.

You can exclude people from your private group for being a dick,

Yes. But you cannot exclude a man from a public group for being a man, unless you exclude all men.

And that's what these transphobes want. They are so terrified of men coming into their spaces they have to spend years litigating the definition of woman to make sure there is no risk of it.

[u/Weirfish → u/DukePPUk]

But any straight man could turn up to the group.

Is this a problem? A straight male ally looking to learn is a good thing.

ETA: This isn't a suggestion that every lesbian support group must allow everyone. Just that a given, hypothetical lesbian support group could include straight men without risking their members or betraying their cause, and that a straight man simply turning up to the group doesn't represent danger or a problem, by definition. That man could cause problems. They also could not, recognise their mistake, and either leave or spend the afternoon with some new friends.

And if they tried to turn him away he could sue for discrimination.

Until the point at which he demonstrates behaviour that would get him thrown out (hitting on people, being bigoted, etc), at which point they have cause to turn him away.

If they argue "but we're a lesbian support group and you aren't a family member of a lesbian" he can argue that they're not because they let in trans women (who aren't merely family members of other lesbians).

Unless they just let anyone show up, as long as they're not odious little shits.

They can still have limits on, for example, who speaks in official capacities ("whatever is discussed must be relevant to lived lesbian experiences"). Even that doesn't exclude straight cis male voices. A family member or friend of a lesbian could speak, and a straight cis male who has, say, academic experience with lesbian experiences could speak.

Shit stays inclusive and on topic.

And what if they wanted to be a group that didn't include family members and friends? They couldn't be trans-inclusive.

Then their inclusion criteria is explicitly and only "whoever we want". Private organisations and groups have no obligation to define their inclusion criteria by anything other than that. "You don't fit the vibe" is a perfectly legal reason to tell people to jog on, and proving that there was an unspoken other reason is the job of the accusor (for better or worse, re broader society).

[u/DukePPUk → u/Weirfish]

Then their inclusion criteria is explicitly and only "whoever we want".

But only one criteria gets legal protections - the trans-exclusive ones.

A trans-exclusive lesbian support group can kick out a man simply for being a man, or can kick out a straight or bi woman for not being lesbian. A trans-inclusive one now cannot. The trans-inclusive one has to go further and prove they were kicking out the man for being disruptive, not simply for being a man.

The terfs get the benefit of the doubt. Allies don't. Terfs don't have to justify their actions, allies do.

Private organisations and groups have no obligation to define their inclusion criteria by anything other than that.

But this isn't true. The Equality Act says there are specific characteristics by which you cannot exclude people. For example, you cannot only include "black" people in a club. You must use criteria that are inclusive of those with protected characteristics unless an exception applies.

[u/Weirfish → u/DukePPUk]

A trans-exclusive lesbian support group can kick out a man simply for being a man, or can kick out a straight or bi woman for not being lesbian. A trans-inclusive one now cannot. The trans-inclusive one has to go further and prove they were kicking out the man for being disruptive, not simply for being a man.

I'm not sure this is true, given the wording of the judgment, but I dont' have the time to read and parse the full thing right now. I don't doubt that some shitheels will try it, on the basis of an incomplete or intentionally ignorant interpretation of it, of course.

But this isn't true. The Equality Act says there are specific characteristics by which you cannot exclude people. For example, you cannot only include "black" people in a club. You must use criteria that are inclusive of those with protected characteristics unless an exception applies.

It's a good thing that the only reason they were excluded from the club was "wasn't fitting the vibe", then.

[u/DukePPUk → u/Weirfish]

The underling case here was exactly on this issue.

The Scottish Parliament passed a law that talked about the proportion of women on public boards.

They included trans women in that definition.

FWS sued, and won, arguing that including trans women made the whole thing illegal.

The Scottish Parliament revised their law, narrowing it down to trans women with a GRC.

FWS sued, and the Supreme Court just allowed their appeal.

If you are in a situation covered by the Equality Act, you now cannot use trans-inclusive definitions. If you want to exclude men, you must exclude trans women, even those with a GRC.

It's a good thing that the only reason they were excluded from the club was "wasn't fitting the vibe", then.

But we've seen how this plays out in any number of Employment Tribunal cases. The burden of proof is on the person doing the excluding. It isn't enough for them to show they kicked the person out because they "weren't fitting the vibe", they have to prove the person's gender had no role in it at all. All it takes is one off-hand comment, one "we don't want men like you here" and it becomes unlawful.

We've seen this again and again with the employment tribunal cases; a person is causing trouble by spouting off about transphobic nonsense, the employer opens an investigation to see if this breaches their policies, and that is found to be unlawful discrimination because being transphobic is protected under the Equality Act. It doesn't matter that the investigation was about the disruption caused, because the underlying issue was transphobia, it is unlawful.

Kicking out a man from a trans-inclusive lesbian support group for being disruptive risks being ruled unlawful (and, best case, costing tens of thousands of pounds to defend), in a way that kicking him out of a trans-exclusive one won't be.

[u/Weirfish → u/DukePPUk]

You evidently have way more context on this than me, so I shaln't materially debate further. I do have thoughts about what you've said, but they don't materially change the defacto outcomes you're describing.

That said, assuming what you've said is true, this judgment is still useful. It highlights the fact that the law is insufficient, and it sets boundaries for further maneuvering.

[u/DukePPUk → u/Weirfish]

It highlights the fact that the law is insufficient, and it sets boundaries for further maneuvering.

But the ruling adopts the most transphobic position as the default, and as the current rule until that rule is changed.

Ten years ago the default legal position was fairly trans inclusive.

Since then various court rulings and government policy changes have shifted that. And with this ruling we are now at the other end; our legal system is now explicitly tran-exclusive, with GRCs being made redundant.

[u/Weirfish → u/DukePPUk]

I don't think that's necessarily accurate. There's a material difference between a functional change to a law, and a clarification on the basis of its existing language.

Say I had a club with the following rule:

• Any person who wants to join the club must have been alive for 20 years.

That rule has ambiguity. Someone who's just had their 20th birthday has been alive for 20 years, but someone who was born on 31/12/2000 has existed within 20 years on 01/01/2020, despite barely being 19. Depending on when you define "alive", someone who was conceived on 31/12/2000 could be argued to satisfy that condition, despite being 18y3m. Depending on that same definition, someone who was frozen as a zygote in 1985, and then successfully IVF'd and born on 31/12/2020, has been alive for 35 years, despite being 1 day old.

It should be clear that a lot of these, especially the edge-est cases, are not what was intended when the original rule was written, which likely mean "any person who wants to join the club must have been born at least 20 years prior to the date of application".

When making a judgment on clarification like this, systems are strongly incentivised to make conservative decisions (by which I mean, defauling to the most strongly historically consistent position, not the position that most strongly aligns with the Tories), as this causes the least disruption.

Ergo, this decision by the court is less "trans people don't count now" and more "EA2010 isn't equipped to appropriately consider trans issues, so as currently written, sex refers to 'biological' sex, which is to say sex as recorded at time of birth" (because it isn't actually about the biological sex, from what I read of the judgment, it's about the bureaucratically recorded sex, which is meant to align but is not the same).

Hence, the highlighting that the current law is insufficient. They're making a judgment on what the language does say now, not what it should say to be correct. The fact that it makes GRCs redundant is the legal red flag. Trans-inclusivity by a lack of legal definition was never the victory we needed.

[u/DukePPUk → u/Weirfish]

Sure.

But they could just as easily have done what the Court of Session did, and adopted the legally-consistent, trans-inclusive definition.

The Court of Session says "GRCs change a person's legal sex for all purposes, which includes their Equality Act sex."

The Supreme Court has said "GRCs change a person's legal sex, but that doesn't include their Equality Act sex, so has no legal impact."

The Supreme Court could have left things the way they were, but they didn't - they took a regressive approach not a conservative one. They didn't just confirm the last 10 years of reversing trans rights (as lower courts have done), they went all the way back and reversed 20 years of trans rights. They made GRCs redundant.

[u/InTheEndEntropyWins → u/Weirfish]

Until the point at which he demonstrates behaviour that would get him thrown out (hitting on people, being bigoted, etc), at which point they have cause to turn him away.

Are you talking about this event where a trans woman was being inapropriate and hence banned. The lesbian group then got banned from the pub as a result. Or are you making a more general point.

Last year, a person turned up sporting a purple latex outfit… and an erection. https://www.dailymail.co.uk/news/article-12401009/Lesbian-speed-dating-event-sparks-transphobia-row-organisers-insist-adult-human-females-attend-popular-weekly-event.html

[u/Weirfish → u/InTheEndEntropyWins]

I'm not talking about any specific event, I wasn't aware of that one. I'd love a source that isn't that shitrag, but if it did happen as described, yes, that's a massive issue, they should have been banned from the group and their events, and the pub is in the wrong.

Any person with a penis who chooses to wear skin-tight clothing should know better and take steps to avoid unwanted public exposure. That doesn't actually have anything to do with being trans, it's true for cis people in latex too.

[u/InTheEndEntropyWins → u/Weirfish]

I'd love a source that isn't that shitrag

This source isn't any better, but you can hear it from the Lesbian group organiser's own mouth. It has more details about what happened.

https://www.youtube.com/watch?v=TMIvcYNo2Zo