Women are allowed to be women again - shock

UK Supreme Court ruling that a "woman" is defined by her biological sex is a legal and moral landmark

Gender critical women celebrate outside court

So there you have it. The UK Supreme Court has ruled that the legal definition of a woman is based on biological sex. Women are allowed to be women again.

You may well think that this is a statement of the bleedin’ obvious. But it has been one of the most contentious legal and moral issues of recent years, not only in Scotland but in the UK and indeed across many countries in the West, where the presumption has been, on the contrary, that “trans women are women”, to use the Stonewall slogan. Clearly, they are not. They are people born male who have decided to identify as women and assume what they regard to be the appearance and lifestyle of a woman. It is no longer transphobic, at least in the UK, to say that trans women are men. Nor is it discriminatory to exclude trans women from single-sex groups.

It was always an absurdity to claim that natal men, with their genitalia intact, could be classed as women and treated as if they were biologically female. Any woman could have told the Supreme Court this without three years of abstruse and expensive legal debate. The idea that a panel of judges was needed to decide what a woman is was always a comic opera proposition. If Gilbert and Sullivan were around today, they would no doubt have a witty lyric about the lords of gender reassignment wondering what a woman is.

But setting aside the manifest absurdity of the question, the UK Supreme Court has, in the end, done society a valuable service. For their ruling has the all important virtue of clarity. “The unanimous decision of this court,” said Lord Hodge, “is that the terms ‘woman’ and ‘sex’ in the Equality Act 2010 refer to biological woman and biological sex.” He went on to insist that this is not a “triumph of one or more groups in society at the expense of another”. But it clearly is, as the jubilation of the many women outside the court testified. The judges recognised that the definitions of “woman” in various statutes are ambiguous and contradictory. But they clearly believed that this matter had to be resolved one way or another. They chose biology over feelings. The 90-page ruling also states that the “concept of sex is binary” under the Equality Act 2010.

That trans women are biologically male, which is the corollary of this ruling, is a victory first of all for the gender-critical group, For Women Scotland, who launched this appeal, and for the author J.K. Rowling, their most vociferous supporter. It is clearly a defeat for the Scottish Government. Its lawyers had argued in November that a person with a gender recognition certificate must be regarded as a woman. It is the final nail in the coffin, surely, of Nicola Sturgeon’s stalled Gender Recognition Reform (Scotland) Act, which was premised on that assumption.

It is a defeat, also, for public bodies like the Scottish Prison Service, which has been placing transgender inmates in the women’s estate on the grounds that their “social gender” takes precedence over their biology. There can no longer be any justification for allowing offenders to change their sex, often after being convicted, in order to be incarcerated in women’s prisons. In 2022, a double rapist, Isla Bryson, was installed on remand in Cornton Vale women’s prison. This will not happen again. Nor will the NHS, in future, be permitted to use euphemisms like “people with cervixes” to avoid having to admit that only women have them.

It has been a long and winding road back to common sense. The trek through the courts began in 2018 when the Scottish Government passed a law requiring gender balance on public boards, like health boards. After lobbying from trans pressure groups, it accepted that trans women with a gender recognition certificate would count as women. The gender-critical group, For Women Scotland, challenged this in the Court of Session, arguing that it could lead to biological women being excluded in favour of natal men. In 2022, Lady Haldane ruled that, under the 2004 Gender Recognition Act, the term “woman” had been altered to include people with a gender recognition certificate. Hence, trans women were women “for all purposes”.

Concurrently, the Scottish Government was trying to pass the Gender Recognition Reform (Scotland) Bill, which would have allowed people to change their legal sex, from the age of 16, merely by making a declaration and without any medical diagnosis of gender dysphoria. This would have allowed transwomen to have unrestricted access to single sex spaces, like changing rooms, hospital wards or refuges, which many women find threatening. For Women Scotland pointed out that, under the 2010 Equality Act, trans women can be excluded from women’s single-sex groups “for a proportionate means of achieving a legitimate aim”. This implied that the law recognised biological sex as primary; else, how could trans women be barred from, say, a therapy group for victims of sexual violence? If trans women are legally women, it would be impossible to exclude them.

The basic problem, as the Supreme Court tacitly admits, is the 2004 Gender Recognition Act. It allowed trans women to change their legal sex on their birth certificates, thus erasing their male biology. This creating a raft of anomalies, not least in the accurate recording of the gender of criminals on police statistics. It was a misguided attempt by the then Labour Government to “be kind” to the then tiny handful of individuals who had had the sincere belief that they had been born in the wrong body. What no one expected was that, 20 years on, thousands of confused young people would be applying for gender reassignment surgery or that male-bodied athletes would be taking part in women’s competitions.

The 2004 Act was, of course, based on an absurdity. Sex is immutable and unchangeable. As the fertility expert Professor Robert Winston famously put it on Question Time in 2021, “you cannot change your sex; it is there in every cell in the body”. That this should have been controversial now seems ridiculous, but his remarks raised a huge storm at the time. Misgendering transwomen was widely regarded as transphobic, not least in the civil service and other public bodies. The police had taken to interviewing gender-critical feminists, like the Liverpool lesbian who tweeted that women were “adult human female”. A film of the same name was banned by Edinburgh University under pressure from trans activists. Now the Supreme Court has ruled, in terms, that this dictionary definition of woman is correct. One suspects that police officers will not be fetching up to Lord Hodge’s doorstep tomorrow warning him against threatening communications. Though no doubt groups like Stonewall will continue to insist that repeating the Supreme Court judgement is tantmount to hate crime.