I greatly admire trans people. The process of realising one is trans involves a journey of profound self-knowledge and actualisation. It is an example of the highest level of consciousness and self-love a human being can reach. We owe so much of queer and gender liberation to trans people. I have personally learned so much about myself and my own relationship to gender by having fascinating and moving interactions with trans people, both in real life and by consuming the media they make.

 

Now more than ever, we need to enshrine this respect for trans people in the law: not only because being trans is beautiful and trans people make the world a better place, but also because I believe that in a democracy, people should be able to live as their authentic selves, free from discrimination and harassment. This doesn’t just include gender expression: It includes freedom of speech, freedom of association, and every freedom we hold as fundamental to a free and fair society.

 

That is why, as a law student, I have found the media coverage surrounding the Supreme Court’s recent decision For Women Scotland Ltd v The Scottish Minister so disturbing. The decision has been criticised as having “legally defined” the word “woman” as excluding trans women, and as taking away the rights of trans people. I hope to show you that that isn’t an accurate characterisation of what the Supreme Court has done. What the Supreme Court has done is expose the weaknesses in this country’s current discrimination legislation as it pertains to trans people, specifically trans women. Urgent reform is needed—but that needs to happen in Parliament. Misconstruing the Supreme Court’s decision is dangerous: it takes the focus off Parliament, where it should be, and onto the court, which is constitutionally incapable of coming up with any other definition of woman, unless Parliament does so.

 

Let’s start with the factual and statutory background of the case itself. This was a judicial review case brought by For Women Scotland, described by the Court as a “feminist voluntary organisation”. Others would describe For Women as belonging to the trans-exclusionary radical feminist movement, or the TERF movement. For Women would not describe themselves this way.

 

A judicial review case is when someone applies to have the court review the lawfulness of something a public body has done. The Home Secretary gets judicially reviewed a lot, for example, as do local councils. To properly understand the implications of this particular case, you need to understand two important things that have been left out of the media conversation. Firstly, what exactly the court’s role in a judicial review case is, and how much power the courts actually have in this country.

 

The United Kingdom has what lawyers refer to as an unwritten constitution. Most countries have physical documents called Constitutions, that lay out foundational rights and processes. The UK doesn’t have one of those—instead, it has a series of principles, concepts, cases, conventions, and statutes that make up its constitution. The most fundamental rule about the UK’s structure is that Parliament is sovereign. Parliament can pass any law, saying absolutely anything it wants. British courts cannot strike down legislation in this country as unconstitutional, or even as human rights violations. Parliament can’t even bind itself: it can’t pass a law that a future Parliament can’t overturn.

 

The only power that courts have in this country is to interpret the laws that Parliament makes, and to fundamentally give effect to Parliamentary sovereignty by interpreting statutes in a way that best aligns with Parliament’s intent. What courts do when they interpret statutes, or words in statutes, is to try and figure out, to the best of their ability, the effect that Parliament intended the statute to have. There is an important legal presumption that Parliament always intends for statutes to be clear, consistent, and practically workable. This is because it’s essential for democracy that laws are capable of being clearly and consistently applied. Therefore, courts will try and arrive at the clearest, most consistent and practically workable interpretation of a statute. If there are two ways a word can be interpreted, but only one of them makes practical sense in the wider context of the statutory scheme, the courts will choose that interpretation.

 

Without a proper understanding of what courts are actually doing (interpreting Parliamentary intent), it might look like courts create and dispose of rights at will. That is untrue. Courts cannot find rights in a statute, even if they are rights worthy of inclusion in a democratic society, if Parliament has not intended to include them in the law at hand.

 

With that in mind, let us return to the case that’s been dominating the British media as of late. There are three complex statutory schemes in question here. In 2018, the Scottish Parliament passed the Gender Representation of Public Board (Scotland) Act 2018 (this is the first statutory scheme, which I’ll refer to as “the 2018 Act”). The 2018 Act provides that at least 50% of a public board’s non-executive members have to be women. Section 2 of the 2018 Act included trans women in their definition of “women” for the purposes of the Act.

 

A separate court case was filed, and the court found that defining women in this way went beyond the devolved competence of the Scottish Parliament (for complex reasons of devolution, irrelevant for our purposes). The Scottish Minister then issued statutory guidance, recognising that the s.2 definition of “woman” as including all trans women in the original 2018 Act was null. Instead, the guidance asserted that a trans woman who had been issued a Gender Recognition Certificate (a GRC), who is legally of the female sex, is considered a woman for the purposes of the 2018 Act. Therefore, the presence of a trans woman on a board can count towards the goal of 50% female representation under the 2018 Act. In this case, For Women Scotland successfully challenged the lawfulness of that guidance.

 

This is where the second statute comes in. Section 9(1) of the Gender Recognition Act 2004 (“the 2004 Act”) states that persons who have been issued a GRC, have, for all legal purposes, the sex of their “acquired gender”. A GRC is a certificate that trans people can apply for, a process which takes several years. Medical transition is not a legally required step of obtaining a GRC, and most trans people (including those who have undergone elements of medical transition) do not have GRCs. GRCs allow the bearer to legally change the sex indicated on their birth certificate. They are also, by law, confidential: no one is allowed to ask a trans person, or someone they think might be trans, whether they have obtained a GRC. The Scottish Minister maintained that, for the purposes of the Equality Act 2010 (“the 2010 Act”), and therefore for the 2018 Act (which is based on the 2010 Act), the term “woman” includes trans women who have obtained GRCs in its definition.

 

And here comes the third statute: the Equality Act 2010, or “the 2010 Act.”  The 2010 Act makes it unlawful to discriminate against someone based on a protected characteristic. The list of protected characteristic includes sex, as well as “gender reassignment.” Section 13(1) defines discrimination as “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” In order to demonstrate less favourable treatment under s.13(1), an actual or hypothetical comparator is often relied upon to demonstrate that a person without the relevant protected characteristic was or would have been treated more favourably than B, who does have that protected characteristic. For example, where sex is the protected characteristic in question, a woman relying on s.13(1) has to show that she was treated differently to the way a man, whose circumstances were not materially different to hers, was or would have been treated.

 

The issue in the case was a very narrow issue of statutory interpretation and interrelation: whether the terms “sex”, “woman” and “man” in the 2010 Act should be interpreted in light of section 9 of the 2004 Act, as including persons who have an acquired gender through the possession of a GRC. This isn’t what most media outlets have focussed on when reporting the case.

 

Notice that the court is not being asked to make a value or moral judgment as to the existence of trans people, the validity of trans women, or even a judgment that concerns all trans people. Nor is the court being asked to make discrimination and harassment against trans people on the basis of the protected characteristic of gender reassignment legal. The court is only being asked to interpret the word “woman” in the specific context of this particular statutory text. Because of the way our constitution works, the court has to try and figure out what Parliament actually intended when they passed the statute. Constitutionally, they have to presume that Parliament wanted their statutory definitions, including that of “sex”, to be consistent and clear.

 

The only question in the case was this: did Parliament intend to include trans women with a GRC in their definition of “woman” under the Equality Act 2010, and importantly, to exclude trans men (whose biological sex is female) with GRCs from that definition?

 

The court found that Parliament did not intend to extend the definition of sex under the 2010 Act in this way, because to do so would make the statute incoherent, unworkable, and absurd. This is where understanding legalese is extremely important. Courts regularly describe statutes using those three words, and when they do so, they don’t intend for the words to carry the same moral subtext that we might associate them with in daily life. Furthermore, the court is explicitly clear that they should not be taken to mean that being trans isincoherent, unworkable, or absurd. The court does not deny the existence of trans people- in fact, they acknowledge at [100] the importance of transition in recognising trans people’s “personal autonomy and dignity and abiding unacceptable discordance in their sense of identity as a transgender person living in their acquired gender.”

 

For Women Scotland Ltd tried to argue that the Gender Recognition Act has been rendered irrelevant and is no longer important to the legal recognition of trans people and their rights. The court vehemently rejected that argument, emphasising how important it is that trans people are protected from discrimination.

 

What the court means when it characterises an extended definition of “sex” or “woman” as absurd, incoherent, and unworkable is that such a definition does not, within the statutory scheme of the Act, make sense. It’s unfortunate that courts use such loaded adjectives to describe the function of legislative frameworks, as it can often lead to the general public conflating the court’s morally neutral assessment of the coherence by which a legislative mechanism functions, with a moral assessment—which the court is not empowered to make and does not attempt to. Both sides of the case have, in their media response to the decision, engaged in this unfortunate mischaracterisation.

 

Transphobic pundits like JK Rowling have hailed the decision as a “win for women” that takes away legal protection for trans people. That isn’t the case. Section 7 of the 2010 Act still makes it illegal to discriminate against someone because they are trans. Nor is it the case that the court is “legalising transphobia” and preventing a legal recognition of trans identities, which is what many trans activists and allies have declared since the decision.

 

The crux of the issue here is that a particular term in a statute, unless otherwise explicitly defined, has to mean exactly the same thing every time it is used in that statute. The 2010 Act works by grouping people together based on shared, “protected characteristics” that make them particularly vulnerable to discrimination. Not only does the 2010 Act give individuals with these protected characteristics rights and protections, it also imposes duties on duty-bearers (most commonly employers, but also service-providers like hospitals and schools) to act in a way that does not unlawfully discriminate against people or groups based on protected characteristics. To discharge those duties lawfully and practically, duty-bearers have to be able to identify who belongs to what protected group.

 

For this reason, groups under the 2010 Act cannot be complex and heterogenous. They must be distinct, and the protected characteristic has to be capable of identification. For example, having a disability is a protected characteristic under the 2010 Act. Duty-bearers can identify whether or not someone is disabled for this purpose, and thus whether or not they owe them a duty, by referencing the clear definition of disability given in section 6 of the Equality Act.

 

The terms “sex”, “woman”, and “man” are never explicitly defined in the Equality Act. However, the court can infer a definition from the scheme’s statutory construction. The key thing to understand here is that, were trans women with GRCs to be included in the Act’s definition of “woman”, as well as cis women, this would create a heteregenous grouping that would be impossible for duty-bearers to identify. This is because it is illegal under the Gender Recognition Act 2004 to ask someone whether or not they have obtained a GRC- in fact, the 2004 Act is designed to protect trans people by keeping their personal information confidential. Therefore, because duty-bearers would be legally prevented from identifying who has a GRC declaring them legally female, they would be unable to practically ascertain who they owe a particular duty towards based on the protected characteristic of sex.

 

The same is true for trans men and what duty-bearers owe towards men on the basis of sex (it is sex itself, not being a woman, that is a protected characteristic). This discrepancy is what the court is identifying as impractical, incoherent, and absurd. Nowhere is the fact of trans identity being described in this way, nor is the court sanctioning the policing of people’s bodies. Because of the practical unworkability that including trans women with a GRC in the Equality Act’s definition of woman creates (and vice versa for trans men), the court cannot constitutionally hold that Parliament intended to do so. The statute as it currently stands creates a dilemma, which needs urgent reform.

 

The court goes on to point out other factors that indicate Parliament’s intent to restrict the definition of sex under the 2010 Act to a biological one. Sections 13(6), 17 and 18 relate to sex, pregnancy and maternity discrimination, and affords women protection from discrimination and harassment based on their ability to become pregnant (or status as pregnant). They make it illegal to discriminate against a “woman” (the word used in the statute specifically) because “she” is pregnant or can become pregnant. The court says at [177] that “since as a matter of biology, only biological woman can become pregnant, the protection is necessarily restricted to biological women.”

 

Retaining the biological definition of “woman” under the 2010 Act also serves to protect trans people. As the court points out, were the definition of “woman” to include trans women with a GRC (who cannot become pregnant), and exclude trans men with a GRC (who would be, for the purposes of the 2010 Act, be considered men), if a trans man became pregnant, he would be left unprotected from discrimination based on his pregnancy under the 2010 Act. This is obviously absurd and unworkable- if trans men become pregnant, they should have the same protections based on pregnancy as cis women do.

 

I’d like to point out that nowhere, when discussing pregnant trans men, does the court endeavour to disrespect or misgender them. The court consistently refers to trans men as trans men, not “biological females” or “women.” The court also always uses he/him pronouns when referring to trans men, whether or not they are referring trans men with a GRC. The court is clearly not trying to invalidate anyone’s gender identity, which is a very good thing.

 

Some people have interpreted this as the Supreme Court veering into bioessentialism. What about the cis women who cannot, for various reasons, become pregnant? Are they excluded from the court’s definition of “woman”? The answer is no, because the court is not exclusively defining “woman” as someone who is able to become pregnant. What they are saying is that only people who are born female (“biological women” in the judgment) can become pregnant.

 

One of the reasons this group of people might face unlawful discrimination is the fact that they belong to the sex that can become pregnant, regardless of their own, individual ability to become pregnant. It is illegal to discriminate against someone because they are actually pregnant, but it is equally illegal to discriminate against someone because you think they might become pregnant, or because you think they are pregnant. That person’s actual ability to conceive and carry a pregnancy is totally irrelevant. Thus, a woman who had undergone a hysterectomy, making her incapable of becoming pregnant, whose employer mistakenly believes her to be pregnant and then fires her or discriminates against her, is protected from under the 2010 Act. An inquiry into whether or not she is actually pregnant, or even capable of becoming pregnant, is never involved in the ensuing court case.

 

The judgment also features a discussion of the importance of protecting lesbian spaces, and other “female only” spaces such as changing rooms or support groups (which are protected under the Equality Act). However, this discussion has also been taken by the general public to mean something that it does not. The key issue making an extended definition of “woman” in those contexts is the same as everywhere in the judgment. Because the issue here was whether trans women with a GRC can be legally defined under the 2010 Act as “women”, and it is illegal to ask someone whether they have a GRC or not, it would be practically impossible for duty-bearers to figure out who they owed a duty to in the context of single-sex spaces.

 

Furthermore, as the court points out at [224], it isn’t rational to say that a sex-segregated space can be used by trans people with GRCs but not by trans people without GRCs, because that trait is a confidential one and the two groups are practically indistinguishable from each other. Here, the court is acknowledging that possessing a GRC does not make a trans person’s identity any more inherently “valid”- what it does do is change the legal sex on someone’s birth certificate, but because this is confidential, it doesn’t meaningfully delineate between groups of trans people for practical purposes. Nor should it: it isn’t anyone’s right to know whether someone is trans or if a trans person possesses a GRC.

 

Finally, if a trans person is discriminated against or harassed because they are trans, they are still able to bring a claim under section 7 of the 2010 Act, which enshrines “gender reassignment” as a protected characteristic. Importantly, no matter whether someone has a GRC is irrelevant to section 7. All trans people are protected by this section, whether or not they have GRCs (most trans people do not). This case had nothing to do with that right.

 

The court ends its judgment with an acknowledgement of the fact that the Equality and Human Rights Commission (the EHRC), the expert agency in Britain that assesses the efficacy of equality and human rights protection in this country, has urged Parliament to consider urgent reform of the Equality Act. This is because, clearly, the 2010 Act uses outdated language, and is structured in a way that makes it impossible to coherently include trans women in the legal definition of “woman”, and impossible to include trans men in the legal definition of “man.”

 

Reform is needed to be more inclusive, now: but this is a task the courts literally cannot perform. Changing legislation and reforming policy is something only Parliament can do. Trans people and their allies have well-justified gripes with the way equality legislation in this country functions, as well as the legal mechanisms by which trans people can have their identity formally recognised. Directing our anger towards the Supreme Court, however, is misplaced: it distracts us from actually achieving change. That must be done by pressuring Parliament to enact meaningful reform that protects everyone from discrimination and makes it easier for trans people to obtain the legal protection and recognition they are entitled to.

 

What might have happened, had the Supreme Court allowed the appeal? Their decision would have been necessarily based on flimsy legal reasoning. This is especially exemplified by the fact that none of the judges felt moved to publish a dissent: none of these legal experts felt that there was another route of valid legal reasoning available. Had they allowed an appeal based on flimsy legal reasoning, it would have provoked TERF outrage, adding fuel to their fire. It might also have discouraged Parliament from enacting meaningful reform, leading to the assumption that the way the Equality Act works right now is inclusive enough of trans people (which it is not).

 

The since overturned American case of Roe v Wade is an important cautionary tale about what happens when courts come to decisions that are politically correct but poorly reasoned. Roe v Wade held that a woman’s right to abortion was implied by the 14^th Amendment of the US Constitution, which enshrines the right to privacy. The decision, while a landmark one for women’s rights, involved an extremely wide, difficult to justify reading of the 14^th Amendment. I support the right to abortion, but I agree that the decision constituted an overreach of the Supreme Court’s powers of Constitutional interpretation. The fact that abortion was read into the Constitution, however, meant that enshrining a legislative right to abortion in the US was never a top priority.

 

When the decision was overturned in Dobbs v Jackson Women’s Health Organisation, the danger of allowing fundamental rights to rely on flimsy legal reasoning was brought to light. It would be just as dangerous to allow something as important as trans rights in this country to rely on a similar kind of decision. The time for reform and trans liberation is now: but the people with the power to effect it are found in the Palace of Westminster, not in the Supreme Court’s buildings.∎

 

Words by Kalina Hagen. Image courtesy of Jay Galvin via Flickr.