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by Mandy Rhodes
12 November 2023
It's clear that the legal definition of ‘women’ as a biological and coherent group no longer exists

The case was presided over by Lady Dorrian | Alamy

It's clear that the legal definition of ‘women’ as a biological and coherent group no longer exists

Ambiguity and fudge make for bad law. That makes for confused legal judgments. And, ultimately, that requires parliaments to bring clarity to a legislative bourach of their own creation.

But when you make law based on a myth that you can actually change your sex, promulgated by politicians clumsily attempting to catch up with social evolution, chase votes, and ride too many policy horses simultaneously, then the subsequent legal arguments – and, crucially, the practical operational challenges – only serve to confuse as the lie is compounded by further obfuscation, interpretation and falsity as people become so tangled in messy contradictions that few things make sense. 

And that is where we are with the current definition of ‘sex’ following the appeal heard in the Court of Session against the government’s definition of ‘woman’ for the purpose of the Gender Representation on Public Boards Bill. For the uninitiated, the hearing required such a degree of contorted mental gymnastics that it makes little sense to rehash them here, but the one thing that is now clear is also one of the most obscure – that for the purposes of the Equality Act, the legal definition of ‘women’ – as a biological and coherent entity with common characteristics that creates a particular community and in which many of us have found comfort, attraction, safety, security, and affirmation of who we are and what our struggles represent – no longer exists.

Under the Equality Act, the group previously known as ‘women’, to which many of us understood that our sex granted us exclusive admission to, now excludes any females who have a Gender Recognition Certificate stating they are men, includes any biological man who holds a GRC that says they are a woman, and, conversely, any biological man who identifies as a transwoman but is without a GRC is in fact and in law a man. 

In hearing the legal appeal, brought by For Women Scotland against the Scottish Government’s definition of sex for the purpose of a particular and narrow piece of legislation, Lady Dorrian may have split the baby and in turn failed to fully please any side of the ferociously polarised debate around sex and gender. This might explain why no one side is rushing to claim a win.
But this is just one of the various pieces of legal challenge currently being considered by various courts across these isles which focus on the question of ‘sex’. 

How has it become so complex when the likes of eminent scientist Richard Dawkins couldn’t be clearer: “Sex is clearly binary, declaring oneself to be otherwise is a distortion of reality.” And yet the problems we now grapple with in law are because that distortion has been built into the foundations of legislation, most notably the GRA and now the Equality Act 2010, by politicians buying into a fantasy. And the courts are now struggling to interpret that law and so are further compounding the problems as they try to deal with the faultlines individually as they arise. 

Does this matter?

Well, it matters to women who, for reasons of religion, dignity, or just fear of male violence, don’t want to share spaces designated as ‘single sex’ with any biological man. And while this judgment doesn’t give the green light to ‘access all areas’, it undoubtedly makes it more daunting for public service providers to make decisions on who to give access to in terms of spaces normally reserved for women.

It matters to trans people who bought into the belief that you could change your sex just by proclamation.

It should matter to the Scottish Government and particularly to Deputy First Minister Shona Robison who has repeatedly claimed that the Scottish Gender Recognition Reform Bill would have no impact on the Equality Act and now discovers, as many of us have argued for some time, that she is wrong.

It should matter to the UK Government because it has been accused of democracy denial by imposing a Section 35 order to prevent the gender recognition reforms passing into law because it believed the legislation would impact the Equality Act, which is reserved.

It should matter to First Minister Humza Yousaf who decided to take the UK Government’s S35 decision to a judicial review and with that judgment may come his toughest political challenge to date. Win or lose, this could prove a poisoned chalice.

If he loses, does he appeal, knowing that the policy he is pursing is firmly against public opinion and that the cost of the legal challenge has already attracted sharp criticism for a government increasingly seen as financially imprudent? 

If, pragmatically, he accepts the loss and waits for the UK Government to introduce a much-anticipated statutory instrument to clean up the definition of sex in the Equality Act to mean biological sex, that would allow his gender reforms to potentially pass. In other words, should he wait for Westminster to clean up Holyrood’s mess, which would be politically unpalatable for a nationalist to swallow? But it also risks his Green partners in government, for whom the gender recognition reforms are a red line, walking away.

And it matters to women, like me, who don’t want a group that we have always believed we had the exclusive right to belong to by dint of our biology to be redefined. And while I recognise that is emotive, it is also visceral. Being a woman is my identity, a biological fact, and it has shaped my journey in life. I am not prepared to simply give it away.

And why should my feelings about my physical sex and my inherent womanhood be dismissed as irrational when, at the very core of gender ideology is a simple belief in one’s inner feeling of who you are taking precedence over the physical reality of how you were born?

No lawyer would declare that the law is an ass but until legal definitions also reflect reality then courtrooms will not be the place to resolve the complexities at the heart of gender recognition reforms. Lady Dorrian could only work with the legislative dog’s breakfast that was laid before her. And while her judgment may not have served to please anyone, she was correct in throwing the responsibility for this mess back to parliaments where the legislation began.

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