Sex Matters - It's A Win!

 

IT’S A WIN!

We are delighted that the Supreme Court has accepted the arguments of For Women Scotland and rejected the position of the Scottish Government. The court has given us the right answer: the protected characteristic of sex – male and female – refers to reality, not to paperwork.

What this means

• Men who claim to be women do NOT count as women in single-sex spaces or at work, even if they have a gender-recognition certificate (GRC). 
• Where services and spaces are provided for women only, men do not have the right to demand entry, even if those men identify as women and have a piece of paper saying that they are women.
• This outcome is the common-sense one, and the only one that protects everyone’s human rights. 
• Now the government, officials and regulators need to act to make sure that everyone understands the law. Women have been lied to and let down for too long. 

This ruling shows that the Scottish Government was legally wrong to claim that a man in possession of a GRC should be considered a woman for the purposes of the Equality Act. The Supreme Court rejected the idea that the categories of “men” and “women” refer to the possession of government-issued documents rather than the immutable biological categories of male and female. 

The judges accepted that sex discrimination against women, or against men, is discrimination against members of an objectively defined, materially distinct group, not a group defined by possession of government-issued pieces of paper. This supports the right of women to female-only spaces and services, and to freedom of association in groups that are female-only, a right that is especially important for lesbians. 

If the Scottish Government had won

• Women would have lost effective protection for rights they gained in 1975 with the passage of the Sex Discrimination Act. 
• Charities and associations set up to serve women would have been forced to expand their remit to include men with paperwork saying “female”. The impact on lesbians would have been particularly severe: they would have been banned from forming associations that excluded heterosexual men with GRCs.
• Employers and service providers would have found it harder to set simple sex-based rules for everyday spaces such as toilets and changing rooms, and specialist services such as rape-crisis centres and domestic violence shelters.
• Public bodies would have been required to consider how their policies affected two groups of people, who hold two different types of certificate, rather than the groups of women and men. 

This is not an “anti-trans” ruling. Trans people remain protected against discrimination on the grounds of gender reassignment (being trans).They also retain important protections against sex discrimination on grounds of their (biological) sex. 

What next?

Now we need to ensure that the law is understood and implemented. This judgment from the highest court in the land must spell the end of policies that allow men to access women’s spaces and services based on their claim of identifying as women, and which ignore the needs and interests of actual women. 

Politicians on all sides have failed in their duty to stand up for women. They said the law was clear. They said they supported single-sex spaces. But they refused to act when women were bullied for talking about the reality of the two sexes, and men were told they could enter women’s spaces at will. 

The brave women of FWS should not have had to take this case. They had to step up because politicians and officials failed to stand up for everyone’s rights. This cannot be allowed to continue. It’s time for our elected representatives and civil servants to do the job we pay them to do.

• The government must instruct officials, regulators and local authorities to bring their policies and guidance in line with the law. Policies based on self-ID must be torn up, and replaced by policies based on the material reality of the two sexes, male and female.
• The Equality and Human Rights Commission (EHRC) must produce clear, straightforward guidance so that employers, service providers and other duty-bearers understand their responsibilities. 
• National, regional and local governments, regulators and sectoral organisations must review all policies and guidance to ensure they are in line with the law. 
• The Cabinet Office should urgently work with HM Courts and Tribunals to issue guidance for GRC-holders that makes clear that a GRC does not change their sex for the purpose of the Equality Act and does not grant them access to opposite-sex spaces and services. 

Sex Matters is proud to have supported For Women Scotland in their years-long quest to establish that sex in the Equality Act really means sex: male and female. FWS brought its fight all the way to the Supreme Court in order to safeguard the human rights of everyone, but especially of women. 

It was an honour to be accepted as intervenors in the Supreme Court, and to be invited to make oral as well as written submissions. We are glad to have been able to help the court reach a judgment in this historic case. 

We are grateful to everyone who played a part, especially our legal team – Ben Cooper KC, David Welsh and Rosie Walker, as well as Dr Michael Foran, who provided helpful analysis. Above all, we want to thank all our supporters, without whom none of our work would be possible.