The decision has profoundly troubling consequences for women
What is a woman? Many people have trouble answering that question, apparently, but now we have guidance from a Scottish court. Jaw-dropping guidance, to be fair, but here it is: “Sex is not limited to biological or birth sex,” according to one of the country’s most senior judges.
Yes, you did read that right. We are plunging ever deeper into la-la land, where sex is no longer determined by boring old things like biology or physical characteristics. It can be changed by a piece of paper, known as a gender recognition certificate (GRC), with unpredictable consequences for women-only services such as the new sexual violence service set up by JK Rowling in Edinburgh.
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Lady Haldane’s judgment is the latest round in a case brought by For Women Scotland, who are challenging 2018 legislation introducing quotas for public boards, which allowed trans women to be counted as female. They won at an earlier stage and this latest decision will almost certainly be appealed. No doubt the judge, Lady Haldane, would say she is simply interpreting the law as it stands, and in that sense her ruling has done us a favour.
Back in 2004, MPs at Westminster passed a dreadful piece of legislation, the Gender Recognition Act. It was supposed to allow a limited number of individuals with gender dysphoria to change their legal sex, with supporters claiming it would affect around 5,000 people. At the time, doubts about the wisdom of allowing individuals to obtain a piece of paper that effectively lied about their sex were dismissed.
Now we can see the unintended consequences of demanding that everyone must believe the fiction that human beings can change sex. The ruling compounds pre-existing confusion, in that it may still be legal for a women-only refuge in Scotland to turn away trans women, using the exemption in the 2010 Equality Act — but at the risk of facing an expensive legal action. Lady Haldane explicitly rejected the argument that “the only way the 2010 Act…can be made to work is if the definition of woman in that Act is taken to mean biological sex”. For the purposes of her ruling, in other words, it includes men with the right paperwork.
The decision explodes the argument by Nicola Sturgeon’s government that its proposed changes to the 2004 Act, scheduled to be rushed through the Scottish Parliament next week, are merely administrative. By the end of this year, according to the current plan, anyone in Scotland will be able to acquire a GRC with next to no safeguards; they won’t even need a diagnosis of gender dysphoria, while measures to exclude convicted sex offenders have been rejected.
Critics of the proposals have argued from the start that the Scottish government is playing down the likely impact on women. “From today, it must stop the absurd pretence that a GRC is only a bit of paper with no consequences for anyone else,” said a statement today from Scottish women’s organisation MurrayBlackburnMackenzie.
This latest decision shows how close we are to the word ‘woman’ becoming a mixed category in Scotland. It’s the logical end point of bad legislation, pushed way beyond its original intention by gender extremists. The UK government urgently needs to amend the Equality Act to add the word ‘biological’ to its definition of woman — and a campaign to repeal the Gender Recognition Act is surely long overdue.