UK Decision That Women Are Women and Men Are Men

The reporting on this case has been hysterically over the top and absolutely false. On 16 April 2025 the British high court released their 88-page decision in For Women Scotland Ltd. V. Scottish Ministers.  There has been such hyperbole about this decision including on this side of the pond that I feel obligated to correct the lies. The decision changes nothing for people with gender reassignment. They had specific protections from discrimination and harassment under the Equality Act of 2010 and they still have that.  

The Equality Act of 2010 provides legal coverage based on nine “protected characteristics” namely: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. 

The Scottish government passed a law that allowed a person to obtain a Gender Reassignment Certificate (GRC).  To get the certificate, one need not do anything but express an intent to reassign and be diagnosed with dysphoria. Neither possession of a GRC nor the protected characteristic of gender reassignment requires any specific physiological change. Under the GRC Act, a person with a GRC was legally that sex.

The UK court recognized that women have historically suffered discrimination in society and since 1975 have had statutory protection.  The court also recognized that the transexual (the word they used community has historically suffered discrimination and has recently been granted statutory protection.  

The question in the case was how the possession of a GRC affected the legal interpretation of the Equality Act i.e. was the person with a GRC that said the person was legally female though biologically male to be covered under the provisions protecting sex or those with a gender reassignment or both. It is solely a question of statutory interpretation.  Certain rules apply to statutory interpretation in the UK as here. Objectivity is one of them as is coherence, consistency, reasonableness, clarity, and consistency.

The Scottish Parliament had passed a law in 2018 that provided that a person who had protection under the Equality Act as gender reassignment could be appointed to public boards as a woman when that board requires 50% women. “For Women Scotland” objected to that because it would reduce women’s representation on public boards.

The lower court threw out the petition of “For Women Scotland” and said that a woman is a woman only in relation to maternity. So I guess since I’ve never been pregnant and now cannot become so, I am not a woman?  Reducing women only to their reproductive functions is patriarchy writ large and what the feminist movement has fought against for centuries. The case was appealed and there were several intervenors including a group representing lesbians.  

The UK court pointed out that at the time the Equality Law was first written in 1975, it referred to biological sex and the transexual community was not protected. The legislation accommodated reasonable expectations about privacy in physical contact situations and allowed separate physical spaces. The act also addressed sports and competitive activity where males have an unfair advantage and where positive action has to be taken to level the playing field due to past and present discrimination.  Positive action is what we would call affirmative action and is common in Europe while it is verboten here because of the successful lie campaign that it resulted in unqualified people getting jobs.  It is very similar to what is going on now with DEI when in fact DEI ensures that the most qualified person gets the position.  But that fact has been turned on its head to claim that it discriminates against the most favored i.e. white males.   In fact, white males are not getting the positions they think they should because when they must compete in a broad and more level playing field, they do not meet the grade.  This upsets their myth of superiority and has resulted in the current attack on DEI.  

The GRC law also provided an exemption for sports where, “the physical strength, stamina or physique of average persons of one gender would put them at a disadvantage to average persons of the other gender ascompetitors in events involving the sport.”

Also the GRC made it illegal for the person to disclose that they had a GRC or for anyone to ask. Thus a person going to a doctor could not even tell them and therefore may get very substandard and even dangerous treatment. It also makes it impossible to know that you are discriminating against someone based on gender reassignment when you are not allowed to know they have a gender reassignment.  

The Equality Act in question regulates and conditions the relationships and interactions between private individuals and both private and public entities over a field of activities that ranges from ensuring fairrecruitment, pay, and treatment in the workplace; to the regulation of the professions; the protection of students from unlawful discrimination in schools, colleges, and universities; and the prevention of unfair treatment when accessing healthcare, membership clubs, associations, and other goods and services.

The UK court recognized the concept of conflicting rights which seems quite absent in the discussion of transexual issues in the US.  The UK court said the law seeks to strike a balance between the rights of one group and another i.e. rights that can conflict with or contradict one another in some circumstances. An obvious example of such conflict emerges in employment cases concerning the protected characteristics of religion or belief on the one hand and sexual orientation on the other. That issue has arisen in the US and religion mostly won.

In the UK court’s analysis they pointed out that it was impossible to organize your legal system and let people know what they can do or cannot do under that system when the protection of the person is based on a category (people with GRC’s) and that category is confidential.

The court analyzed several different areas of the law to support their final holding. The first was protections for maternity and pregnancy which can only apply to the biological female sex. One example of the impossibility of the Scottish Ministers position is that under their scheme if a transexual man (female biologically) became pregnant, said person could not obtain any of the employment, health or social services provided for pregnant women. Thus that female would lose her rights. By protecting pregnancy and maternity, women are not being reduced to their reproductive processes but are being recognized as workers and citizens in addition to their reproductive ability who deserve the same protections and health care as everyone else. However you look at it, you keep running up against science.  

Under the law, lesbians have certain protections under “sexual orientation” because they have been discriminated against because of their status.  If a transwoman (a biological man) can be a lesbian simply by getting a GRC, then lesbians have no particular status because anyone can be one.

Likewise, if anyone can be a woman by holding a GRC, then women who have been the subject of violence by men, rape by men, prostitution and pornography by men cannot be protected from men because any man can be a woman by getting a GRC including their pimp or abuser.

If anyone can be a woman, then how does one assess the risk affecting women as a group such as pregnancy, childbirth, intimate partner violence, sexual harassment, rape etc. or identify laws that need to be changed such as representations on boards or subjects in medical studies?

The Scottish Ministers wanted the court to accept a biological definition for sex as related to maternity but a social definition of gender for everything else.  The social definition of gender is nothing but sexual stereotypes that feminists have been fighting to eliminate for centuries.  The court refused that wavering definition based on sound legal principles that a word must be interpreted the same in a law in order to have clarity, consistency, and predictability.  People need to know what the law says they must do or not do.  

The court outlined other absurdities that would result if they adopted the Scottish interpretation.  A pregnant transexual man is a biological woman so would get the protections under the Equality Act for pregnant women.  A pregnant transexual man who has a GRC is a man so cannot get the protections.  But the certificate is confidential so how would anyone know? The system is unworkable, inconsistent, and incoherent. Because you can’t ask, certain women-only groups, organisations, and charities have come under pressure (including from funders and commissioners) to include transexual women and men because they may have a GRC.

The problems facing lesbians under this Scottish regime was one important analysis.  Sexual orientation is defined in the Equality Act as orientation towards persons of the same sex, the opposite sex, or either sex.  As the court said in paragraph 206, accordingly, a person with same sex orientation as a lesbian must be a female who is sexually oriented towards (or attracted to) females, and lesbians as a group are females who share the characteristic of being sexually oriented to females. This is coherent and understandable on a biological definition of sex.

The problem with the GRC is that if that person (a biological male but legally a female) remains attracted to females, that person is now a lesbian. To state the obvious – lesbians do not have penises. If wanted a penis, we would be attracted to males and therefore not lesbians. As the court points out, saying anyone can be a lesbian, makes the protected group of lesbians non-existent. When Alix Dobkin sang “Every woman can be a lesbian” she didn’t mean people with a penis.

The Scottish interpretation would mean that a women-only club or a club reserved for lesbians would have to admit transexual women with a GRC (legal females who are biologically male and attracted to women). However they can’t know if the person has a GRC or not and they can’t ask. This situation is having a chilling effect on lesbians who are no longer using lesbian-only spaces because of the presence of transexual women (i.e. biological men who claim the female gender). The same is true in the US. Lesbian bars, bookstores, breakfast clubs, music festivals have all disappeared across the country. Lesbians have lost their First Amendment right (and equivalent in the UK) of association because we are not allowed to associate only with lesbians. This also negatively impacts lesbian political organizing.

The court held that in the Equality Act sex has its biological meaning throughout this legislation: “woman” always and only means a biological female of any age in section 212(1).  “To reach any other conclusion would turn the foundational definition of sex on its head and diminish the protection available to individuals and groups against discrimination on the grounds of sex.” Women would lose protection.

Another factor the court analyzed included separate and single-sex services for example changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the sexes) or medical or counselling services provided only to women (or men) –for example cervical cancer screening for women or prostate cancer screening for men, or counselling for women only as victims of rape or domestic violence.  If sex were defined by the GRC then biological males would have to be allowed into all these spaces.  But persons who have had gender reassignment but not a GRC would not. But how would you know since you can’t ask? What would be the basis of discriminating between people with gender reassignment with or without a GRC? The questions are endless and unanswerable.

The court gave an example of a feminine appearing person who has had gender reassignment using a women’s locker room and a masculine appearing person with a GRC using that same locker room.  The women in the locker room might complain about the masculine appearing person but since he has a GRC, he can stay.  If they complained about the feminine appearing person, he would have to leave.  The court pointed out that not only is this absurd, but the protection, dignity, and autonomy of women is a value and a legitimate goal of the law. This value is not met by leaving the masculine person in the locker room and forcing the feminine one out.  This would also apply to other single sex places such as rape or domestic violence counselling, domestic violence refuges, rape crisis centres, female-only hospital wards, and changing rooms. 

Another example the court discussed was the physical contact conditions such as massage therapist, medical personnel, or searches in a prison or jail.  A massage therapist who goes to client’s homes may specify women only for safety reasons.  She arrives and a masculine appearing person answers the door. If she refuses to do the massage, and that person has a GRC, she has committed discrimination based on sex.  When I go to my dermatologist, I ask for a woman. The same problem would exist.  Should that person appear feminine, but is in fact transexual without a GRC, I could reject that person’s services. I still could be accused of gender reassignment discrimination, but I could counter with an equally weighty right i.e. discrimination toward women and a history of violence toward women.  However, if a masculine appearing person comes into the room and I reject that person’s services, but that person has a GRC, then I am guilty of sex discrimination against my own sex. I trust you can see how this makes no sense and how my rights are violated.

The court went through the same analysis for communal spaces such as dormitories and prisons, sanitary facilities, and single sex institutions and could find no rational basis for a finding that would oblige such institutions to admit transsexual members of the opposite (biological) sex with a GRC, whose biological sex is likely to be readily identifiable, while excluding others without a GRC, whose circumstances may be materially indistinguishable.

One intervenor “Sex Matters” pointed out that this also impacts other associations (beyond lesbians) and charities including, for example, a mutual support association for women who are victims of male sexual violence, a lesbian social association, or a breast-feeding support charity. Women have left violence counseling agencies when there was a male group, a transsexual group, and a female group that included transsexuals.  When the woman entered the female group, a tall, large, masculine appearing person was in attendance and since her abuser was also a tall, large, masculine person, she was very uncomfortable and left. No women only group existed so she was unable to obtain services.  Her rights were lost though he could have gone to the transsexual group.  She had no group to go to.

The UK decision also tackled the provision of “Women’s fair participation in sport” that requires a determination of whether the physical strength, stamina or physique of average persons of one sex would put them at a disadvantage as competitors in a particular sport when compared to average persons of the other sex. They used boxing as an example, but it would include all contact sports and even non-contact sports such as weightlifting and table tennis. A study found that a 10-year-old untutored boy could hit the table tennis ball with the same force that a 40-year-old woman table tennis champion could making it unfair for males to compete against women. If the person with a GRC was admitted, the safety and fairness for women could no longer be protected thus equally serious rights conflict – those of the person with a GRC to nondiscrimination and those of the woman for nondiscrimination, safety, and dignity.

Unlike US law, the UK court pointed out that the law has a public sector equality duty and must take positive measures for women due to the history of past discrimination.  The Scottish scheme would make data collection difficult.  It would be hard to take positive action.  A program in Nigeria excused girls from school one week a month due to menstruation. They were still allowed to do the work and maintain their grades.  Transsexuals who claimed to be female objected because they did not get a week off every month which of course they did not need because they did not have menstruation. Because of that complaint however, the program was stopped harming the rights of biological girls to equal education.     

 Biological males with a GRC who obtained it 20 minutes ago could compete for scholarships and positions designated for women such as on boards and commissions (which started the original fight in Scotland) though he has not experienced discrimination aimed at women but in fact was a benefactor of positive discrimination for men. Yet said persons could and have taken slots allotted for women.  In the US we have people who have never had a period, been pregnant or gone through menopause in charge of making decisions about women’s health. In the past, men made these decisions absent women and women complained. Now when women complain, we are told our complaints are invalid because the people making the decisions are women. But in fact, they have never and never will experience the health issues that women do.  When white people cosplay as Black, Latina or Native, as they have, and take scholarships, positions, and jobs meant for people of color, Americans understand the injustice. But when men take women’s positions, they suddenly don’t see the injustice.

Another nonsensical result of the law was that a transexual woman with a GRC (a biological man) could bring an equal pay claim by citing a male comparator who was paid more. A transexual man (a biological woman) with a GRC who actually experienced sex discrimination could not. By using sex, the right to complain about equal pay would be given back to the woman who actually experienced it. The Scottish interpretation would harm transexual men (biologically women) in several such ways by transferring the rights a woman has to a person who is biologically male.  

The court rightly concluded that their actions do not disadvantage or remove protection from transexual people with or without a GRC.  The existing discrimination prohibition covers discrimination because of the prohibited characteristic and also the perception of the characteristic or association with the characteristic. So a transexual woman (biological male) could claim sex discrimination because she is perceived as a woman and can compare her treatment with that of a person not perceived to be a woman (whether that is a biological male or a transsexual man perceived to be male). As the court pointed out, no one brings a discrimination complaint based on being a “woman.”  It is based on the protected characteristic of sex. Transexuals have that same protection.

The court gives an example of a transexual woman, (biological male) with or without a GRC, who appears feminine but is not hired even though she did the best and a biological male was hired.  She can sue for sex discrimination. The same applies for harassment.  If a transexual woman, with or without a GRC, is harassed because she is perceived to be a woman, she can sue for sex discrimination.

In addition, the transsexual person could bring a complaint based on the gender reassignment characteristic.  A person with a GRC would have to admit that which is confidential.  Gender reassignment and sex are separate bases for discrimination and inequality. Thus the transsexual has two protected characteristics to bring charges on. They could claim discrimination under any of the nine protected categories just like everyone else. The UK court could ascertain no reason to create two subgroups under the “gender reassignment” category i.e. those with or without a GRC and give them different rights.

The court also pointed out that the Scottish interpretation seriously weakens the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations.  It also weakens the protections given to those with the protected characteristic of sex i.e. they would no longer be allowed dignity, autonomy, and safety in separate spaces, communal accommodations, medical care, associations or charities, public sector duties, or sports. 

As the court concluded, “The interpretation of the EA 2010 (i.e. the biological sex understanding), which we conclude is the only correct one, does not cause disadvantage to trans people, with or without a GRC. In the light of case law interpreting the relevant provisions, they would be able to invoke the provisions on direct discrimination and harassment, and indirect discrimination. To create a “certified sex” category is not required to give them those protections (paras 248-263).”

As a result of the decision, those with gender reassignment, with or without a certificate, have lost nothing. They are still protected under the Equality Law like everyone else. Yet they wanted more.  

If the decision had gone the other way, women would have lost everything – their right of association, their right to define themselves, their right of dignity and autonomy, their right to safety and fair sporting competition, their right to positive action etc.  As I have said before, those who have gone through gender reassignment are entitled to all human rights. They are just not entitled to mine.