Politics: battles still to fight

By Richard North - April 17, 2025

It should never, ever have been the case that the definition of a woman was a political hot-potato, and that politicians were being challenged over whether women could have penises.

That this has been a matter for debate is perhaps as good an indication as any of the level of decadence afflicting this nation and much of the western world. With all the problems affecting us, society and government both have no business wasting time and intellectual capital on such tomfoolery.

However, we are where we are, as the phrase goes. That has brought us to the point where a dispute in Scotland, which first went to the courts by way of a judicial review in 2022, challenging an arcane piece of legislation which went under the unprepossessing title of the Gender Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”).

Its application has now been examined by the highest court in the land, the Supreme Court, which delivered its judgement yesterday.

That such a piece of legislation as the 2018 Act should exist makes its own statement. But what caused the reaction amongst the ladies of a campaign group which called itself “For Women Scotland” stemmed from the requirement in the Act that public boards should have at least 50 percent women.

It wasn’t the legislation, though, that caused the upset, so much as the ministerial guidance which asserted that a person who had been issued with a full gender recognition certificate (GRC) stating that “her” acquired gender was female, had the sex of a woman. Thus, the appointment would count towards the achievement of the 50 percent objective.

The ministers relied on the references to a “woman” under section 11 and section 212(1) of the Equality Act 2010 (EA 2010), with the addition of section 9(1) of the Gender Recognition Act 2004 (GRA 2004), which states that a full gender recognition certificate issued to a person that their acquired gender is female makes that person’s sex that of a woman.

When the Supreme Court came to make its judgement as to whether the ministerial guidance was valid, Lord Hodge, standing in for the president Lord Reed, was at pains to point out that it was not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex. Nor, he said, was it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010.

Rather, the court had a more limited role which did not involve making policy. This was to addresses the meaning of the words which the Westminster parliament had used in the EA 2010 “in legislating to protect women and members of the trans community against discrimination”. Our task, Hodge declared. “is to see if those words can bear a coherent and predictable meaning within the EA 2010 consistently with the GRA 2004.

Some 88 pages later – seriously, 88 pages – the court came to the conclusion that the guidance issued by the Scottish government on its own 2018 Act was incorrect.

A person with a GRC in the female gender, it said, does not come within the definition of “woman” for the purposes of sex discrimination in section 11 of the EA 2010. That in turn meant that the definition of “woman” in section 2 of the 2018 Act was limited to biological women and did not include “trans women” with a GRC.

Once again, Hodge was anxious to downplay the court’s role, assuring listeners that nothing in this judgment was intended to discourage the appointment of “trans people” to public boards or to minimise the importance of addressing their under-representation on such boards.

The issue, he firmly stated, was only whether the appointment of a “trans woman” who has a GRC counted as the appointment of a woman and so counted towards achieving the goal set in the gender representation objective, namely that the board has 50 percent of non-executive members who are women.

It didn’t, said Hodge. In our judgment it does not. “For Women Scotland” had won their appeal, and a landmark victory.

For all Hodge’s caution, he needn’t have bothered. The media almost universally took the judgement as the court defining what a woman was, with the BBC rushing out a headline on its website declaring: “Supreme Court backs ‘biological’ definition of woman”.

Judges at the UK Supreme Court, the report said, have unanimously ruled that a woman is defined by biological sex under equalities law. It marked, the report continued, the culmination of a long-running legal battle which could have major implications for how sex-based rights apply across Scotland, England and Wales.

The court, we were told, had sided with campaign group For Women Scotland, which brought a case against the Scottish government arguing that sex-based protections should only apply to people that are born female. Only as a concession to Hodge’s caution did it then say that the judge had said the ruling should not be seen as a triumph of one side over the other and stressed that the law still gave protection against discrimination to transgender people.

By contrast, The Times wasn’t bothered with the caveats, parading the headline, “Organisations ‘must revisit policies’ after Supreme Court trans ruling”,

Every organisation in Britain, it said, has been told to revisit their equality policies after the country’s highest court ruled that trans women were not legally women – although the telling, it seems, comes from the campaigners. It is they who are saying that organisations which allowed biological men into women’s spaces must immediately scrap the policies or face legal action.

The paper goes on to say that all organisations, including hospitals, prisons and businesses, will have to review their policies. The ruling means organisations will have legal backing to protect single-sex spaces such as changing rooms, lavatories and women’s shelters on the basis of biological sex.

It adds that the government will also come under pressure to repeal the Gender Recognition Act, which allows people to obtain a gender-recognition certificate, after the “watershed” judgment rendered it “effectively defunct”.

Certainly, the shock-waves are spreading. The Equalities and Human Rights Commission (EHRC) says it will urgently update its guidance to organisations, with chairwoman Baroness Falkner saying that the ruling “cannot be overstated”.

Sex Matters, the women’s rights charity, said the ruling meant sports bodies had “no excuses” for continuing to allow “transgender women” to compete in female categories and NHS officials have confirmed they will consider the ruling as they update guidance on same-sex hospital wards. Ministry of Justice sources said officials were considering the implications of the ruling on their policies.

Marion Calder, a director of For Women Scotland, said: “If there is a female sign on the door, that is now a single-sex space. That is crystal clear as a result of today’s ruling, GRC [gender-recognition certificate] or not”.

However, for all that, things maybe aren’t so clearcut. The one to watch is Labour MP Stella Creasy, self-proclaimed campaigner for women and mothers, who in May 2022 famously responded to the question of what a woman was, saying: “Do I think some women were born with penises?”, answering with a “Yes” and adding: “But they are now women and I respect that”.

Talking to Telegraph columnist Camilla Tominey, she said: “Of course biological sex is real – it’s just not the end of the conversation. I am somebody who would say that a trans woman is an adult human female. I would say that you and I were adult human females”.

Now, in response to the Supreme Court judgement, she’s at it again. In a statement on Twitter, she says that the ruling “raises more questions than it answers”.

Single sex spaces, she asserts, have always been protected under the Equality Act and they continue to be. What is now in question is the status of the Gender Recognition Act.

Lawyers, she says, will continue to debate – politics needs to do better in answering the needs of our constituents affected by these issues, then adding: “Those claiming ‘victory’ should clarify they respect the existence of trans people”.

This is “trans ideology” naked in tooth and claw, as she argues that they should not be seen as people who are ‘mentally unwell’, but as equals who have rights to express their identity. Those expressing “concern”, she says, should clarify how the balance of rights this ruling shatters can be better upheld as a result.

“Trans people”, she chirps, “are a tiny minority in the UK. It’s easy to dismiss and dehumanise those who are different if they are hidden – so too, acknowledging the difference between gender and sex creates complexity in the interaction of rights. Resolution lies in ensuring one doesn’t defeat the other”.

Thus she concludes: “No one wins when we pit groups against each other, except those who think there are votes in hatred; everyone can be a voice- on and offline- for a way through”.

What, of course, she neglects to say is that her “trans rights” conflict directly with women’s rights. You can have one or the other but not both, and this judgement has highlighted that inherent conflict.

What Creasy’s reaction shows though is that this conflict isn’t resolved yet. It’s a start, on the slow march back to sanity, but there are battles still to be fought.