Following months of deliberation, the apex court in the United Kingdom is to rule on For Women Scotland vs The Scottish Ministers. The case has been brought by a grassroots group of gender-critical women backed by JK Rowling. It focuses on the legal constraints surrounding statutory guidance issued by the Scottish ministers on the Gender Representation on Public Boards (Scotland) Act 2018.
Despite claims to the contrary, the Supreme Court will not on Wednesday decide an answer to the question ‘what is a woman?’ Rather, it is to rule on how ‘woman’ and ‘man’ are defined for the purposes of the law. This may seem a pedantic distinction but, in a climate where lack of clarity has caused mayhem, pedantry is to be welcomed.
While this is Scottish legislation, it is necessary for all acts of the Scottish parliament to comply with reserved powers – including the UK-wide Equality Act 2010. The Gender Recognition Reform Act 2004 allows a male with a gender recognition certificate (GRC) to be a woman for the purposes of the 2018 Act – that is, a trans-identified male may fulfil an organisation’s quota of women. But the difficulty comes in how the legislation interacts with the 2010 Act. Is a male with a gender certificate female for the purposes of the Equality Act? Do they then benefit from the protected characteristic of sex?
A GRC is a legal fiction and, For Women Scotland has argued, makes a nonsense of ‘sex’ as it appears in the Equality Act 2010. So far, so very dry. Yet the impact of the legislation and the resulting legal fiction has had extreme, far-reaching consequences. It has removed the right of women to expect legal protections based on their sex. It has told women their personal boundaries are not worthy of respect and they should cede single-sex spaces to anyone who wishes to identify into them. Not least, the noxious row over these laws and their real-life implications has aided the downfall of two Scottish first ministers and driven the Scottish parliament into barely reconcilable factions.
One of the remarkable elements of this situation is the power small lobby groups, such as Scottish Trans Alliance and the Equality Network, have had to shape the law and public life, and how the responsibility of course-correction has fallen to grassroots campaigners. Should For Women Scotland win their case, it will be a historic victory for gender critical women who have, over the past few years, found themselves the face of highly public legal actions: the Scottish nurse Sandie Peggie, for one, and the nurses of Darlington, for another.
Yet one of the interpretations of what a For Women Scotland win might mean is that the veto of the Scottish Gender Recognition Reform legislation would no longer stand. Alister Jack, the former Scotland Secretary under the last Conservative government, used a Section 35 order to put a stop to the enactment of the gender bill. Should the court find that sex is immutable in law, it could open the door for John Swinney to push forward with gender reforms – and the irony is not lost.
Swinney will be hoping desperately that calls to reignite GRR are faint. He does not share the same enthusiasm for trans rights issues as his predecessor Nicola Sturgeon, who was the architect of the current contentious guddle that sex vs gender has become. The current First Minister has been well aware that a sudden pivot on the issue would be too abrupt to escape criticism and so he has been gently steering a course around and away from the problem.
Scottish Labour’s leader Anas Sarwar has explicitly said he was wrong to push for gender recognition reform and now believes in single-sex spaces based on biological sex. It is astonishing how an impending election can sharpen the mind. Only the Scottish Greens will have an interest in pursuing gender recognition reform any further. Even their bedfellows on the issue, the Scottish Lib Dems, have stopped engaging with the matter entirely. During the gender bill campaign the Scottish Lib Dem leader Alex Cole-Hamilton stood outside Holyrood and hollered through a megaphone in support the issue. Now, an approach to the party for comment on almost anything trans rights-related is met with silence.
Yet Swinney may not have the luxury of ignoring the problem in the hope it goes away. It is understood the Scottish government’s spin doctors have prepared responses for three possible Supreme Court outcomes: a Scottish government win, a For Women Scotland win, and a third possibility – seen as most likely – where the court may rule that the legislation is an incoherent muddle made by legislators not lawyers and it is for those legislators, not the courts, to fix it.
If the latter option were to be the conclusion reached on Wednesday it would cause dismay. After all, while Scotland’s politicians led Scotland into this mess, there is very little faith among Scots that they might lead us competently back out.
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