Gordon Dangerfield

FOR WOMEN SCOTLAND (AGAIN)

In my last blog post in August of last year I made these observations (and feel free to skip or skim the paragraphs which follow in bold if you don’t need them repeated):

Paragraph 28 of Schedule 3 [of the Equality Act 2010] provides as follows with regard to single sex services:

A person does not contravene section 29 [direct discrimination], so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

…

(c) the provision of a service only to persons of one sex.

Before the court’s clear decision in For Women Scotland, this was an obscure and highly controversial provision. Now, it isn’t.

Firstly, for the purposes of single sex female services, the provision must apply to biological females who are undergoing gender reassignment. If a single sex service were to exclude a so-called “transman” from its female services on the grounds, say, that her beard and deep voice were “triggering” for rape victims, that is clearly an exclusion made because of her gender reassignment.

As such, it clearly requires justification under paragraph 28 and, if justification cannot be established, it will equally clearly be direct discrimination against the protected characteristic of gender reassignment.

Secondly, it may be arguable that a biological male in possession of a Gender Recognition Certificate (GRC) under the Gender Reform Act of 2004 (GRA) falls to be regarded as acquiring some form of legal fiction which allows him to be classed as a “biological female” for the purposes of the Equality Act.

In Fair Play for Women Ltd v The Registrar General for Scotland and The Scottish Ministers [2022] CSIH 7, the highest civil court in Scotland said this:

There are some contexts in which a rigid definition based on biological sex must be adopted.

And this:

Some of these limitations have been carried over to apply even where a person has successfully obtained a GRC under the GRA….The point which these examples all have in common is that they concern status or important rights.

As I’ve noted elsewhere, it’s a pity that the court didn’t say more about where exactly a GRC fits into the definition of “biological female” for the purposes of the “status” and “important rights” conferred by the Equality Act.

My own interpretation of these statements is that a biological male with a GRC remains a biological male for the purposes of single sex provision and that there is no need to invoke paragraph 28 of Schedule 3 to exclude him, along with all biological males, from single sex female services.

If I’m wrong about that, and if paragraph 28 does require to be invoked in order to exclude a biological male with a GRC from single sex female services, then that will in my view have serious consequences for the Gender Recognition Reform (Scotland) Bill currently making its way through the Scottish Parliament. I’ll deal with that in detail in the last of the forthcoming articles.

(Spoiler: if having a GRC does turn a biological male into a “biological female” for the purposes of the Equality Act, then it is simply absurd for the Scottish Government to claim, as they do, that the Bill’s provisions allowing biological males to obtain a GRC by essentially self-identifying as female do not intrude into the reserved area of the Equality Act. Clearly, they do, and as such the Act, if passed, will be struck down by the courts as outwith the competence of the Scottish Parliament.)

The decision of the Inner House today means that I was wrong — for now at least — about a biological male with a GRC remaining male for the purposes of the right to access female single sex services under the Equality Act. As such, and as I noted in the last paragraph above, the Scottish Government’s Gender Recognition Reform (Scotland) Act, which purports to allow a GRC to be obtained by self-ID must by definition intrude into the reserved area of the Equality Act. It is therefore now inevitable in my opinion that the Act will be struck down when the court gives its eagerly awaited decision on the application of the UK Government to have that happen.

Not for the first time, we should all be grateful to For Women Scotland for bringing the action that will cement this result.

The decision also means that my observation about the application of paragraph 28 above moves from hypothetical to actual. The Inner House has today decided that — for now at least — a biological male in possession of a GRC is to be regarded as being of the female sex for the purposes of the Equality Act. All other trans-identified males remain male. This means of course that, as the bulk of my last post was concerned with explaining, the current “trans-inclusive” policies of the Scottish Government are clearly unlawful as applied to female single sex services, and always have been, because they regularly force biological females to share female single sex services with biological males, whether those males have a GRC or not. (And of course only the tiniest minority of trans-identified males do have a GRC.)

Single sex female services must now take urgent advice on how to counter these unlawful Scottish Government policies, and ensure that all trans-identified males without a GRC are excluded without exception from their services. They should also make use of paragraph 28 to exclude biological males with GRCs where excluding them is a proportionate means of achieving a legitimate aim. As explained above, these biological males are not being excluded because of their sex, which the Inner House tells us is now female. Rather, they are being excluded on the ground of gender reassignment because, although they are (so we are told) now of the female sex, it is permissible under paragraph 28 to exclude them on the legitimate and proportionate grounds that, for example, their obviously male bodies, deep voices, hairy chins and so on are triggering to female rape victims.

In other words, it is the very fact of their gender reassignment from male to (so we are told) female that makes excluding them legitimate and proportionate in terms of paragraph 28.

Of course, all of this has the strongest whiff of absurdity about it, as the court itself recognised today when commenting that the sorting out of the whole awful mess must be a matter for society as a whole and not just for the interpretive function of the courts.

I disagree with the judges’ decision today but I genuinely sympathise with the impossible position in which they, and the courts in general, now find themselves. Laws have been passed, and judicial decisions made, on the basis of the most absurd ideas, which have no basis whatsoever in reality, and now the courts, which really have only very limited and highly compartmentalised expertise, are being asked to reconcile reality with the absurd fantasies which have been given legal force.

It is as if the Flat Earthers somehow got their doctrines passed into law and the courts then had to reconcile that law with all the other laws — on air traffic control, shipping navigation etc — which are needed to regulate reality. However expertly they applied their very narrow expertise to the task, and with however much sophistry and appeal to authority they “resolved” it, planes and ships would still be crashing into each other out there in the real world, as well as much other mayhem.

So it is with a law that says human beings can change sex.

We all need to start again from scratch, and we need to start with the patent absurdity of the Gender Recognition Act 2004.

WHY SINGLE SEX FEMALE SERVICES ARE NOT FOR BIOLOGICAL MALES

This would have been the first of the three articles promised in my last post. However, I’ve revised the original article to incorporate the important speech given this week by the English Attorney General, Suella Braverman, and I’ve divided the original article into two parts.

This is the first part and the second will follow shortly.

What is a single sex service?

The law on single sex female services is set out in the Equality Act 2010, which allows services to be exclusively single sex if this is a “proportionate means of achieving a legitimate aim”. I’ll say more about that below.

However, it should already be self-evident that the crucial factor in deciding whether a service should be for one sex only is knowing what “sex” means in this context.

And, as astonishing as it may seem, until very recently no-one did know. This has resulted in the most extraordinary legal confusion as various individuals and groups took a guess at the answer, including the Equality and Human Rights Commission (EHRC) in their statutory Code of Guidance on the Act.

But now we do know.

In For Women Scotland v Lord Advocate and Scottish Ministers [2022] CSIH 4, the Lord Justice Clerk Lady Dorrian, giving the unanimous opinion of Scotland’s highest civil court, said this:

The protected characteristics listed in the 2010 Act include “sex”….[A] reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman. For this purpose a man is a male of any age; and a woman is a female of any age…. [W]hen one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female. Thus [a provision relating to women], as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.

In other words, “sex” for the purposes of the Equality Act 2010 means biological sex. If a provision is made in favour of the female sex, it is made in favour of those who are biologically female, and it excludes those who are biologically male.

The court then considered the question of whether the quite separate “protected characteristic” of “gender reassignment” in the Act had any bearing at all on the meaning of “sex”.

Commenting on various previous cases which had been put before them by the parties, the court made clear that these cases did not constitute:

… authority for the proposition that a transgender person possesses the protected characteristic of the sex in which they present.

And to put the matter beyond any doubt, the court continued:

These cases do not vouch the proposition that sex and gender reassignment are to be conflated or combined…

In other words, if a biological male is undergoing what we colloquially call “male to female” gender reassignment, that process will give him the protected characteristic of “gender reassignment” under the Act.

But it will have no effect at all on his “sex” for any of the purposes of the Act. His “sex”, for any of the purposes of the Act, will remain male.

The second part of this article will deal with the extraordinary confusion in the law which For Women Scotland has now resolved, with how that confusion may have arisen and with how it has manifested itself in all kinds of ways.

What is important, though – and what you probably didn’t know if you’re not a lawyer – is that as far as the law is concerned, once a court of the highest authority tells you what the law is, then that is what the law has always been.

In other words, since the moment the Equality Act came into force in 2010, the meaning of “sex” for the purposes of the Act has always been the meaning now set out by the court in For Women Scotland – namely, biologically female or biologically male.

Every previous decision of an inferior court, every Code or instruction or piece of guidance which, implicitly or explicitly, proceeded from a different definition from that now provided in For Women Scotland is simply wrong.

Why single sex services are an all-or-nothing deal

In her speech earlier this week, the Attorney General summed up nicely the way in which the Act makes lawful what would otherwise be direct sex discrimination of the most blatant kind. Speaking specifically of schools but in terms which apply equally to services, she said:

The exceptions in [the Act] create a mechanism whose sole purpose is to ensure that even though there is a general prohibition of sex discrimination, [services] are legally permitted to take a single sex approach…. Parliament could not have plausibly intended for these specific exceptions to be subject to collateral challenge by way of complaints of indirect discrimination by other protected groups such as those with reassigned gender. This would be to risk the Equality Act giving with one hand, and promptly taking away with the other.

It is precisely on that basis that, as the Attorney General pointed out, the exceptions in the Act which allow for single sex services:

… permit direct discrimination on grounds of sex: they permit “women only” and “men only” services, provided that the rule is a proportionate means of achieving a legitimate aim.

In law, single sex services are intended for one sex only: that is the very thing permitted by [the Act]. It follows that it is not possible to admit a biological male to a single-sex service for women without destroying its intrinsic nature as such: once there are [biological males] using it, however they define themselves personally, it becomes mixed sex.

This is the absolutely crucial point, and it is, frankly, a blessed relief to me (and, I’m sure, many others) to see someone of the Attorney General’s status finally making it.

It’s either proportionate and legitimate to have a single sex female service or it isn’t.

It truly is an all-or-nothing deal.

The moment you say that it’s not proportionate or legitimate to exclude even one solitary biological male from your single sex service, then at that exact moment your service ceases to be a single sex service, and you lose your whole justification for excluding any male from that service. When you admit a biological male to what was a single sex female service, you are admitting in terms that you no longer have legal justification for your single sex service. You are now a mixed sex service.

In other words, the justification provided by the Act for directly discriminating against males is not a justification that can be applied only to a few males or to most males or even to the vast majority of males. To retain its validity, it has to be applied to all males.

That is what having a single sex female service is.

The clue is in the name.

Single sex female services not only can exclude all biological males. They must exclude all biological males.

Direct and indirect discrimination

A closer analysis of the detailed provisions of the Act makes this even clearer.

Section 4 of the Act provides that “sex” is a “protected characteristic”.

Section 11 provides that “sex” in this context means “a man” or “a woman”.

Section 212 provides that “man” means “a male of any age” and “woman” means “a female of any age”.

As already noted above, the Inner House of the Court of Session – the highest civil court in Scotland — has now clarified that, for the purposes of the Act, “male of any age” means – and has always meant – biological male, and “female of any age” means – and has always meant – biological female.

Section 13 of the Act provides that it is “direct discrimination” to treat a person with a protected characteristic less favourably than others because of that protected characteristic. For the purposes of the protected characteristic of “sex” this means treating a man less favourably because he is a man or a woman less favourably because she is a woman.

Section 29 of the Act then prohibits a “service-provider” as defined from discriminating in its provision of a service to the detriment of persons requiring the service.

It should therefore be immediately evident that a single sex female service will fall foul of section 13 without some further provision that allows for exceptions to this form of direct discrimination.

WITH THANKS TO THE FRONTLINE FEMINISTS

Over the next week or so, I’ll be putting up three articles arising out of a workshop run by the group Frontline Feminists to which I was honoured to be invited recently. I’m very grateful to all of the women participants who worked through these ideas with me, and without whom these articles wouldn’t have been written.

Needless to say, if I’ve got anything wrong in any of the articles, or in anything that follows here, that’s my own responsibility.

The first article will deal with the dramatic clarification that two recent cases – one English and one Scottish – have made of the law relating to the Equality Act, and in particular to the law relating to women’s single sex spaces. I’ll argue that the combined result of these two cases is that males who are undergoing gender reassignment, and who do not have a Gender Recognition Certificate (GRC), can never have a right to enter such spaces, and that males who do have a GRC may also be lawfully excluded.

The second article will deal with the effect of this on the “trans-inclusive” policy of the Scottish Government (SG) whereby, in order to receive SG funding, women’s single sex services are forced to state that they will include in those services males who are undergoing gender reassignment. I’ll argue that this policy forces women’s services to discriminate against the very group they were set up to serve – namely, females – and puts these services at risk of losing their single sex exemption under the Equality Act. I’ll also argue that women’s single sex services and individual women affected by the SG’s policies have grounds of action against the SG for this unlawful policy.

The third article will deal with the further effect of all of this on the SG’s Gender Recognition Reform (Scotland) Bill, currently making its way through the Scottish Parliament. I’ll argue that the drastic changes which the Bill proposes to the requirements for attaining the legal fiction that one has changed sex put the Bill beyond the legislative competence of the Scottish Parliament and will lead inevitably to the Act, if passed, being struck down as unlawful by the courts.

(One aspect of this which I’ll deal with in the article – and which I haven’t seen raised before – is that the whole issue of “gender recognition” arises because the European Court of Human Rights in 2002 effectively ordered the whole of the United Kingdom to take action as a “contracting state” to provide a mechanism and relevant criteria for people to legally change sex. If, as the SG and its legal advisors evidently believe, it’s lawful for one part of the UK – Scotland – to now have very different criteria for legally changing sex than the rest of the UK, then it surely must be open to, say, English people who could get a GRC under the new Scottish criteria but not under the criteria still applying to the rest of the UK to complain to the European Court that the UK has unlawfully discriminated against them by not meeting its European human rights obligations in a uniform manner across the whole of the “contracting state”.)

But first, by way of introduction, something that struck me most forcefully when doing the research for the workshop giving rise to these articles is how clear judges once were about what “males” and “females” and “transsexuals” are, and about the reasons for granting the legal fiction, in exceptional cases, that human beings can change sex.

I invite you to read what follows and see if, like me, you find yourself at a loss to know how, in less than twenty years, we’ve “progressed” from the eminently sensible judicial statements set out here, and cited by the SG and others as providing the basis for their current views, to those current views themselves; that is to say, to the view that being a woman is just a feeling in your head, or that men who have that feeling in their heads are every bit as much women as those who gave birth to them, or that having “gender dysphoria” need not involve any discomfort or distress whatsoever about your body and indeed is fully consistent with requiring lesbians to suck your “girl dick” or alternatively to die.

The legal background to some nice clear definitions

Before it was replaced by the UK Supreme Court in October 2009, the Appellate Committee of the House of Lords was the highest appeal court in the UK.

On Thursday 10 April 2003, the Lords gave their decision in the case of Bellinger v Bellinger. The question before the court was whether Mrs Bellinger, a “transsexual” who had been born male, was validly married to Mr Bellinger, also a male. Among other things which proved conclusively that Mrs Bellinger was biologically male was that a chromosomal test, dated 8 April 1999, showed her to have a karyotype 46XY pattern – “an apparently normal male karyotype”, as the court observed.

In the course of her life, Mrs Bellinger had been through psychiatric assessment of her condition, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision and therapy (the “real life experience”) and then, finally, in a step recognised for suitable cases, “gender reassignment surgery”. As the court described it, this final step had involved “removal of her testes and penis” and “the creation of an orifice which can be described as an artificial vagina”. But, as again described by the court, “she was still without uterus or ovaries or any other biological characteristics of a woman”.

The court had to decide if this made her “female”, and therefore able to marry, in terms of the then extant UK law.

The legal background to their making of that decision was that the European Court of Human Rights had already decided in 2002 that the UK’s law on marriage breached the Article 8 right to privacy and the Article 12 right to marry under the European Convention on Human Rights (ECHR) and that the UK as a “contracting state” had to do something about it.

The English courts had made it equally clear that it was up to the UK legislature, and not judges, to do something about it.

As a result, the House of Lords decided that Mrs Bellinger was not a female under existing UK law, and that the courts therefore had no power to validate the Bellingers’ marriage. In doing so, they again confirmed that the UK was in breach of its ECHR obligations in requiring them to come to that decision, and that legislation was necessary to bring the UK into compliance with the ruling of the European Court.

The result was the UK-wide Gender Recognition Act of 2004.

The five judges in Bellinger were unanimous in their decision and Lord Nicholls gave the leading opinion of the court. The definitions contained in that decision – the decision, remember, of the UK’s highest court – are refreshingly clear.

The court’s use of “sex” and “gender”

As I’ve pointed out elsewhere on this blog, one of the reasons the law in this area is currently in such a mess is that the terms “sex” and “gender”, which not that long ago were synonymous, have come to have very different meanings in the minds of an increasingly large group of people, and that this slippage has been skilfully exploited by “gender identity” activists.

Their technique is an obvious but very effective one that anyone who has taken a university class in “poststructuralism” will recognise : get people to agree things about “gender” that they would never agree about “sex” – for example that if you don’t conform wholly to either masculine or feminine stereotypes you are of the “non-binary gender” – and then, once you have that agreement, switch back to “sex” and “gender” being synonymous, and demand sex-based rights from the bewildered folks who have agreed with you about “gender”.

So I’m pleased to say that in Bellinger, there is no room whatsoever for that technique to be employed. Their Lordships were quite explicit that, throughout their decision, “sex” and “gender” were to be regarded as “interchangeable” and thus synonymous:

… human sex or gender (for present purposes the two terms are interchangeable)…

In everything that follows, then, it’s handy to remember that the court in Bellinger were clear that “sex” could be substituted wherever “gender” is used, and vice versa. The present-day slippage between the terms that, for example, the Scottish Government regularly exploits in order to spread confusion and cover up irrationality on these issues is simply inapplicable in this case.

The court’s definition of “inter-sexual”

This is how the court defined so-called “inter-sex” conditions:

Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter-sexual.

The court’s purpose in thus defining the statistically tiny incidence of such conditions was to avoid from the outset two further terminological confusions which are routinely exploited by gender activists, namely that the condition of being “transsexual” is somehow to be equated with being “inter-sexual”, and that, because determining sex at birth is not always entirely straightforward, sex is “assigned”, and not merely observed, in all cases.

I say more about this below.

The court’s definition of “transsexual people”

This, then, is the court’s definition of “transsexual people”:

Transsexual people are to be distinguished from inter-sexual people. Transsexual is the label given, not altogether happily, to a person who has the misfortune to be born with physical characteristics which are congruent but whose self-belief is incongruent.

Note that the label is given “not altogether happily” because of course no-one actually does “trans”, or cross over, to the opposite sex. Rather, as the court makes clear, “transsexual” people – in explicit contrast to “inter-sexual” people – are people who are unambiguously of one sex but who believe themselves to be of the opposite sex.

That is their “misfortune”, and it is one which, as the court later recognises, should elicit our sympathy and compassion.

But note that there is not the slightest suggestion here – nor is there one anywhere else in the court’s decision – that our sympathy and compassion for people like Mrs Bellinger should extend to validation, let alone celebration, of their “misfortune”.

Taking legal decisions based on sympathy and compassion for “misfortune” and making them the foundation for validation and celebration of that “misfortune” is of course another technique skilfully exploited by gender activists.

By all means disagree with those of us who – like the court in Bellinger – see as a “misfortune” your unshakeable belief that your whole body is in fundamental contradiction of who you really are.

But it’s simply dishonest to pretend that this and subsequent decisions in your favour were in fact a validation, let alone a celebration, of your belief.

And of course you’re being even more dishonest if you’re one of the increasingly vocal group who don’t even have that unshakeable belief, and are actually quite happy with your male body, but just want to access women’s spaces or shout “Suck my girl dick!” at lesbians and “TERFs”.

The court’s use of “assigning” to refer to sex

As indicated above, the court’s decision may also throw some light on how the phrase “assigned at birth”, as applied to both “gender” and “sex”, has come to be in almost universal use now despite it being a straightforward fact of human biology that sex is determined in the womb, and merely observed at birth.

The court’s use of “assigning” suggests one way in which this otherwise extraordinary locution may have gained acceptance, namely by way of reference to “inter-sexual” conditions where the determination of sex may not be immediately straightforward, as it is in the cases described by the court as “normal”.

Having listed the “indicia” by which sex is determined – including chromosomes, gonads, other internal sex organs, external genitalia and hormonal patterns – Lord Nicholls said this:

In the vast majority of cases these indicia in an individual all point in the same direction. There is no difficulty in assigning male or female gender to the individual. But nature does not draw straight lines. Some people have the misfortune to be born with physiological characteristics which deviate from the normal in one or more respects, and to lesser or greater extent. These people attract the convenient shorthand description of inter-sexual. In such cases classification of the individual as male or female is best done by having regard to all the factors I have listed.

Sharp-eyed readers will have noticed that the court’s definition of “inter-sexual” which I have already given above is taken from this larger passage.

And in this context, of course, the use of “assigning” makes perfect sense, as does the further term “classification”. Remembering that “sex” and “gender” are interchangeable terms for the court, it’s easy to see that “assigning” is being used here in the sense that observing sex is a straightforward matter in the “vast majority of cases” – the ones described by the court as “normal” – but that in the very specific and tiny minority of cases where “inter-sexual” conditions are involved, and there is a deviation from the normal, the task of observation is less straightforward.

What this boils down to for any rational person is that “assigning” sex in the vast majority of cases is a matter of straightforward observation of the “indicia” but that in a tiny minority of cases, more rigorous and detailed scrutiny of those same “indicia” may be required in order to make the “classification”.

Self-evidently, none of this has anything to do with “transsexual people” as defined by the court, and, if I’m right that “assigning” in this sense is the basis of the current usage of the term, then “assigned at birth” is yet another ingenious appropriation of a term ripped from its context by gender activists to assume a significance entirely unwarranted by its original use in context.

The court’s definition of “transvestite”

Perhaps the clearest example of what was obvious in 2003, and is now, apparently, much less so for many people in our culture, is this concise definition given by the court:

Nor should a transsexual person be confused with a transvestite. A transvestite is a person who, usually for the purpose of his or her sexual gratification, enjoys dressing in the clothes of the opposite sex.

I recently asked the First Minister’s unofficial spokesperson Mhairi Hunter whether she agreed with me (and by extension with the court in Bellinger) that Eddie Izzard, when he is in “girl mode”, remains a man.

I’m not holding my breath for an answer.

The court’s definition of “gender dysphoria”, also known as “gender identity disorder”

This is how the court defined these synonymous conditions:

Transsexual people are born with the anatomy of a person of one sex but with an unshakeable belief or feeling that they are persons of the opposite sex. They experience themselves as being of the opposite sex. Mrs Bellinger is such a person. The aetiology of this condition remains uncertain. It is now generally recognised as a psychiatric disorder, often known as gender dysphoria or gender identity disorder. It can result in acute psychological distress.

In 2003, then, and for the UK’s highest court, this was the clear and precise definition of what it was to be “transsexual”.

It was “a psychiatric disorder” which could “result in acute psychological distress”.

And having the “misfortune” to suffer from it was the self-evident prerequisite for attaining the legal fiction of changing sex.

The court further defined the disorder by way of describing the treatments for it:

The treatment of this condition depends upon its severity and the circumstances of the individual. In severe cases conventional psychiatric treatment is inadequate. Ultimately the most that medical science can do in order to alleviate the condition is, in appropriate cases, to rid the body of its intensely disliked features and make it accord, so far as possible, with the anatomy craved. This is done by means of hormonal and other treatment and major surgery, popularly known as a ‘sex change’ operation. In this regard medical science and surgical expertise have advanced much in recent years. Hormonal treatment can change a person’s secondary sexual characteristics. Irreversible surgery can adapt or remove genitalia and other organs, external and internal. By this means a normal body of one sex can be altered so as to give the appearance of a normal body of the other sex. But there are still limits to what can be done. Gonads cannot be constructed. The creation of replica genital organs is particularly difficult with female to male gender reassignment surgery. Chromosomal patterns remain unchanged. The change of body can never be complete.

Again, there is no suggestion here that the condition of being “transsexual” is something to be validated or celebrated. Rather, everything described by the court as “treatment” is designed only to “alleviate the condition” and to do so, where appropriate, by increasingly drastic steps.

This progression – the progression undergone by Mrs Bellinger – is then set out by the court:

Surgery of this nature is the last step in what are typically four steps of treatment. The four steps are psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision and therapy (the ‘real life experience’), and finally, in suitable cases, gender reassignment surgery.

Just setting out what I’m sure seemed to the court in 2003 to be a compassionate, factual and uncontroversial definition of the “disorder” of “gender dysphoria”, and the treatments by which it might be alleviated, gives the starkest illustration of how far gender activists have succeeded in moving the discussion of these issues from what was a widely shared — and legally sanctioned — understanding of them less than twenty years ago.

Indeed, I suspect that if I were to go to Glasgow Green tomorrow and read these passages aloud, I’d be reported by any passing gender activists for transphobic hate crime and, bearing in mind the “education” delivered by Stonewall and others to our current Scottish Government, prosecution service and police force in the years since 2003, I’d probably be arrested and charged.

Nonetheless, I’ll take my chances and state here that the authoritative rulings and definitions provided by the UK’s highest court less than twenty years ago concerning the disorder of gender dysphoria and the plight of transsexual people are entirely in line with my own views.

Anything that has been achieved by gender activists since then by way of undermining any of these rulings and definitions to any degree is in my view a disastrous departure from both reality and rationality.

What follows?

I hope that all of the above was of interest by way of providing some of the context for how clear and sensible things were not so long ago.

Please do come back for the three articles that try to make sense of where we are now.

MARK HIRST V CHIEF CONSTABLE AND LORD ADVOCATE

I’m very pleased to be able to update you all at last on developments in Mark’s action for malicious prosecution.

Since my post of 26 July last year when I shared my firm’s letter before action to the Lord Advocate, we’ve been engaged in what is called “pre-action correspondence” with the defenders. I’ll say more about that below.

However, the upshot is that we have now lodged at Jedburgh Sheriff Court the document which initiates court proceedings – called, appropriately enough, an “initial writ” – and on 11 February the court granted a warrant for the action to be served on both defenders – the Chief Constable of Police Scotland and the Lord Advocate.

The action was served on 17 February and each of the defenders now has until 10 March to confirm to the court that they intend to defend it.

They will then be allowed further time to lodge their detailed defences and the court will issue a timetable setting out how things are to proceed from there.

We are suing for damages of £200,000.

The pre-action correspondence

I’m also pleased to say that the considerable delay in getting to court while we have pursued pre-action correspondence with the defenders has been worth it for one important and substantial reason.

I explained in my last post how section 170 of the Criminal Procedure (Scotland) Act 1995 bears to provide immunity from liability for prosecutors in “summary proceedings” when no imprisonment of the accused is imposed.

I argued that there was no reason in law or in common sense why the Crown should be liable in damages for maliciously prosecuting someone who goes to jail as a result but not someone who is, rightly, acquitted of the charges against them.

Nor, I argued, was there any reason why people tried before a jury (in “solemn proceedings”) should be treated differently from those tried by a judge alone (in “summary proceedings”).

I pointed out that this provision seems incompatible with Article 6 of the European Convention in that it fails to provide a remedy when a wrong is committed, and that we therefore intended to challenge the compatibility of section 170 with the Convention had the Lord Advocate contested the action on this ground

I can’t disclose the details of our pre-action correspondence with the Lord Advocate, which was conducted on a “without prejudice” basis, but I can say that we are now confident that section 170 is not going to be a factor in this litigation.

The malicious prosecution of Mark Hirst

Our action then proceeds on the following basis.

Mark was prosecuted for an offence under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 – supposedly behaving in a “threatening and abusive” manner towards the Salmond complainers – following comments which he made after Alex Salmond’s acquittal on all charges at the High Court in Edinburgh.

On 07 January 2021 a submission of no case to answer by Mark’s defence team was upheld by the sheriff at Jedburgh.

The sheriff made quite clear in dismissing the case that all of the facts brought before the court by the prosecution – facts which were evident from the outset and had never been disputed by Mark – did not constitute any crime known to the law of Scotland.

Any such crime existed only in the minds of Mark’s powerful accusers, and of their mouthpiece Rape Crisis Scotland, and had no business at all in entering into the minds of the police or Crown.

We submit in our court documents that there never was any basis for Mark being prosecuted, and that the prosecution against him lacked reasonable and probable cause, both objectively and subjectively.

We also maintain that the prosecution was brought maliciously, not least because a warrant was obtained against Mark when the primary evidence was plainly available. The warrant application, among other things, made false allegations about threats being made by Mark.

The police obtained the warrant to search Mark’s home on the basis that it appeared that he had committed an offence. He had not. The police did not produce any information to the sheriff which would have permitted scrutiny of the application as, had that been done, it would have been obvious that no offence had been committed.

In any event, we argue there was no need for a warrant to have been obtained at all. The police had already obtained a full copy of all of the relevant material posted by Mark. The material obtained by the gang of officers from the “Salmond team” during their raid on Mark’s home produced precisely nothing to add to the relevant evidence in the case.

We’ll seek to establish that the obtaining of the warrant in such circumstances was “oppressive, an abuse of power, unnecessary and indicative of malice”.

The political dimension

We’ll also seek to establish that the prosecution of Mark was politically motivated.

As most of you will know, Mark was an active and outspoken supporter of Alex Salmond.

Rape Crisis Scotland, who played an active part in the charges against Alex Salmond, also played an active part in having Mark investigated and charged.

We intend to explore in the course of this litigation whether Rape Crisis Scotland were encouraged to make a complaint about Mark for political motives, and indeed whether the complainers in the Salmond trial were similarly encouraged to do so.

Rape Crisis Scotland are of course funded by the Scottish Government.

THE FAIR PLAY FOR WOMEN DECISION: BATTLE LOST, WAR WON

The decision of the Inner House of the Court of Session – Scotland’s highest civil court – in the judicial review brought by Fair Play For Women constitutes a disappointing defeat in the battle for a common sense interpretation of “sex” as meaning “biological sex” to apply in all legal contexts.

It is, however – and much more importantly – a decisive confirmation that the war for “sex” to mean “biological sex” whenever the protected characteristics of the Equality Act are in issue has now been conclusively won.

In the For Women Scotland case, decided just a week ago, also in the Inner House, the court made crystal clear that whenever the protected characteristic of “sex” is being considered for the purposes of the Equality Act, the relevant definition of a “woman” is a person who is “biologically female”.

Now the court has gone further by stating that “biological sex” (the concept that the overwhelming majority of us think of simply as “sex”) is likely to be the appropriate definition in all legal contexts where “status, proof of identity or other important rights” are in issue.

So where did the court say this?

I’m glad you asked.

In finding that the definition of “sex” should not be restricted to “biological sex” for the purpose of the relevant question in the Scottish Census, the court said this:

“It is to be expected that the language used, and the meaning to be attributed to the words used, are to be interpreted according to their popular and common meaning, not according to a specialist, restricted definition which may be adopted where matters of status and rights may be in issue.”

I’ll save for another day my analysis of the legal sophistry by which the court deduced from the uncontroversial fact that for many people “gender” and “sex” are still synonymous that we are all now much more sophisticated than our “simplistic” ancestors and have become veritable Judith Butlers in our interplay of the two terms.

I’ll simply restate a very obvious fact.

The reason “gender” and “sex” are still synonymous for millions of ordinary sensible people is that they’ve never heard of Judith Butler or “gender theory” and, just like their “simplistic” and sensible ancestors, they still use the terms interchangeably to mean biological sex.

But back to the point.

However out of touch with reality the court’s finding about the “popular and common” meaning of these terms may be, its crucial finding is its contrast of such a meaning with the “specialist, restricted definition” which “may be adopted where matters of status and rights may be in issue”.

We already know from the For Women Scotland decision that one of the contexts where the “specialist, restricted definition” of sex not only may be but must be applied is the context in which the protected characteristic of “sex” under the Equality Act is in issue.

In Fair Play for Women, the court now specifically acknowledges that there are others:

“There are some contexts in which a rigid definition based on biological sex must be adopted.” [my emphasis]

It then gives some examples:

“… marriage is a legal status which affects rights in other fields such as immigration, social security, pensions, and housing. There are other circumstances in which matters affecting status, or important rights, in particular the rights of others, may demand a rigid definition to be applied to the term “sex” of the kind proposed by [Fair Play for Women]. Examples include [a case] where being a male was an essential pre-requisite for the commission of a particular criminal offence.”

Indeed, the court points out:

“Some of these limitations have been carried over to apply even where a person has successfully
obtained a GRC under the GRA…. The point which these examples all have in common is that they concern status or important rights.” [my emphasis]

And, summarising precisely why Fair Play for Women have lost the battle but conclusively won the war, the court goes on:

“We see no reason to think that the fact that it may be necessary to apply a biological definition of sex in prescribed circumstances involving status, proof of identity or other important rights mandates that a similar approach must be adopted when the issue does not involve these matters.” [my emphasis again]

So sure, it’s disappointing to say the least that the court has found it unnecessary to apply the biological definition of sex to the Census in Scotland and has decided to let people answer on the basis of their “gender” (whatever that may be).

But there can now be no doubt that the Scottish courts can, and most likely will, find it necessary to apply a biological definition of sex not just in Equality Act cases but in any case where any important rights are being decided and the definition of sex is in issue.

FOR WOMEN SCOTLAND: WHAT THEIR VICTORY MEANS

Let me start by offering my hearty congratulations and heartfelt thanks to Marion, Trina, Susan and all at For Women Scotland for their sensational victory in the Court of Session this week. They have done a mighty service to every person in Scotland who still has a grip on reality.

For all non-legal folks, be in no doubt about the importance of this decision. It comes from the Inner House of the Court of Session, which is Scotland’s highest civil court. It is therefore, as of now, the definitive and authoritative statement of Scots law on the matters it covers.

What the decision covers

One very important matter that the decision covers is the definition of “sex”, and of “woman” and “man”, for the purposes of the Equality Act 2010.

This is what the court said about that:

“[A] reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman. For this purpose a man is a male of any age; and a woman is a female of any age…. [W]hen one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female.… Provisions in favour of women, in this context, by definition exclude those who are biologically male.”

This is unequivocal.

It means that whenever the protections provided by the Equality Act are being considered in Scotland and the question arises of what a “man” or a “woman” is in the context of those protections, a man is a person of any age who is “biologically male” and a woman is a person of any age who is “biologically female”.

Legal definitions

At this point we should perhaps remind ourselves of this:

Contrary to what those in thrall to poststructuralist “thought” believe (or purport to believe), there will not be the slightest problem for lawyers in defining further, if need be, what “biological sex” means, or what being “biologically female” or “biologically male” entails.

If lawyers can come up with legally workable definitions to differentiate between a “cake” and a “biscuit” (as they famously can), they can certainly – if called upon – come up with workable definitions to differentiate a biological man from a biological woman.

They could perhaps start with anyone of any age who has ever given birth (“biologically female”) and work from there.

Even the statistically tiny instances of so-called “intersex” conditions will be a comparative dawdle.

It’s perfectly clear, then.

In Scotland, whenever the protected characteristic of “sex” and the protections against discrimination for the “women” and “men” who comprise that characteristic under the Equality Act are being considered:

A woman is someone who is biologically female.

A man is someone who is biologically male.

The Gender Recognition Act 2004

There may be one important wrinkle to this. Although the court cited section 9 of the Gender Recognition Act in its decision, it didn’t spell out in any detail how the provision interacts with the unequivocal guidance given above.

Section 9(1) says this:

“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

Now, one thing that most people on all sides of the “gender” argument seem to agree on is that “gender” and “sex” do not nowadays mean the same thing. The days are long gone when “gender” was just a polite or posher way of saying “sex”.

So the conflation here of “sex” and “gender” (so that by changing “gender” you legally change sex) is either a trick that was pulled in 2004 by very savvy “gender” activists, rightly seeing it as the thin end of the future wedge (my own view) or it’s a legal fiction that was granted on compassionate grounds to ease the suffering of people with the medical condition of “gender dysphoria” (the view of people kinder than I am on this one).

Either way, the result is that a person with a gender recognition certificate obtained under the Act changes sex legally by changing their “gender”, and does so “for all purposes”.

I honestly don’t know where this fits exactly with the court’s authoritative definition of “woman” in the For Women Scotland case and I wish the court had specifically addressed it.

At its very highest, though, it simply adds those biological males who have acquired the legal fiction of being women to the protected characteristic of “woman” and those biological females who have acquired the legal fiction of being men to the protected characteristic of “man”.

It does nothing to alter or dilute the fundamental and authoritative distinction now made by the court.

In fact, it may even provide a glimpse of what an “acquired gender/sex” amounts to in the eyes of the law; namely, the legal fiction granted to you by legislation that you’re biologically female when you’re actually biologically male – and vice versa.

The Scottish Government and its enforced policies of “trans inclusion”

The court’s decision in the For Women Scotland case is in my view a defeat of catastrophic proportions for the Scottish Government.

Just how catastrophic will only emerge as the dominoes start to tumble but the most immediate casualty must surely be the Government’s enforced “trans inclusive” funding policies, under which service organisations which are, in terms, exclusively for women must nonetheless make provision for serving biological males in order to qualify for Government funding.

If they refuse to admit biological males, as a few brave and principled organisations continue to do, they must do so without any funding from the Scottish Government and its “feminist to my fingertips” First Minister.

Well, I won’t keep you in suspense.

In my opinion, the court’s decision now confirms what some of us have suspected for a long time.

That policy is unlawful, and should be struck down if challenged.

Why the Scottish Government is acting unlawfully (again)

The court in its decision discussed not only the protected characteristic of “sex” under the Equality Act but also the equally protected characteristic of “gender reassignment”. This is the characteristic on which the Scottish Government relies in imposing its “trans inclusive” funding policies.

In terms of the Act, a person has that protected characteristic “if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

You’ll note immediately that once again we have the conflation of “sex” and “gender” that bedevils all legal discussion of these matters and that, frankly, should cause every lawyer involved in the drafting of these provisions to hang their heads in shame.

To take just one example, what on earth are non-physiological “attributes of sex”? Getting drunk and wanting to fight everyone for males, maybe? Or being rubbish at reversing a car for females? Or could it really mean just calling yourself Kylie and applying some lippy?

But I digress…

I know of no legal authority that tells us when the process of gender/sex reassignment stops being a process and becomes a done deal. As discussed above, one possibility is that the obtaining of a gender recognition certificate concludes the process.

However, the court in For Women Scotland was quite clear in stating that just because some biologically male people might have legally changed sex to female, that by no means entails that all biologically male people undergoing the process of gender reassignment can be treated as female.

The court specifically noted that the Equality Act of 2010

“… maintained the distinct categories of protected characteristics [of sex and gender reassignment], and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate under the 2004 [Gender Recognition] Act were limited.”

In other words, the court was quite clear in saying that, although a transgender person undoubtedly qualifies for the protected characteristic of gender reassignment, there is no legal authority

“… for the proposition that a transgender person possesses the protected characteristic of the sex in which they present.”

Accordingly, the cases put before the court

“… do not vouch the proposition that sex and gender reassignment are to be conflated or combined.”

Rather, the protected categories of “sex” on the one hand and “gender reassignment” on the other are separate and distinct. You don’t automatically (or arguably ever) become a “woman” for the purposes of the protected characteristic of “sex” by means of belonging to the separate protected characteristic of “gender reassignment” while being a biological man.

Maybe you can do it by completing the reassignment process (whatever that may involve) and maybe you can do it by obtaining a gender recognition certificate under the 2004 Act but you absolutely can’t do it just by undergoing gender reassignment under the 2010 Act.

Where this leaves the Scottish Government and women’s services

As I’ve said, it’s a pity that the court didn’t go on and say more about where the “limited” number of biological males who have obtained gender recognition certificates fit into this picture.

But what is beyond any doubt now is that in Scotland biological males who have not obtained a gender recognition certificate, and who are in the process of gender reassignment, do not possess the protected characteristic of “woman” for the purposes of the Equality Act.

In other words, in the law of Scotland as it stands today, and with the possible exception only of those with a gender recognition certificate, “transwomen” are not women.

The law, then, is directly contrary to the “trans inclusionary” funding policies of the Scottish Government, which have for years now forced women’s organisations to include biological males on the grounds that any biological male at any stage of the gender reassignment process has the protected characteristic of “woman” under the Equality Act and is thus entitled to use women’s single sex services.

(I should say for completeness that I have seen it argued that the entitlement of biological males to use women’s single-sex services arises because to exclude them would be to discriminate against their “gender reassignment” characteristic itself. This is obvious gibberish, as the court’s decision confirms. No-one is arguing that biological males should be excluded from women’s services because they’re undergoing gender reassignment. Self-evidently, it’s because they’re biological males.)

Among many other potential consequences of the law of Scotland being now clear at last is the distinct possibility that women’s single-sex services could lose their exemption to provide those services under the Act if they continue to bow down to the Government edict and include biological males among their service users and, in one infamous case, even among their employees.

Because to be exempt from discriminating against those with a protected characteristic under the Act – in this case, discriminating by excluding the protected characteristic of biological men from your services – you have to show good reasons for what would otherwise be unlawful discrimination against those who belong to that characteristic, and then you have to exclude them all.

What the Scottish Government’s “trans inclusionary” funding edict says to women’s service organisations is: you must include some biological men – all of the ones who call themselves “transgender women” – but it’s still fine to exclude the rest.

Nuh-uh.

That’s exactly what the court has just ruled against in For Women Scotland.

Every one of these organisations should be consulting their lawyers right now.

WHAT DO YOU BELIEVE ABOUT TRANSWOMEN? TAKE THE TESTS

The Scottish Government believes that transwomen are women and that this statement is so self-evidently true that it is not even up for debate.

I believe that transwomen are not women, and that this statement should not require debate in any rational society.

Which of these two opposite beliefs you hold is important because which one you hold logically determines what you think should follow from that belief.

If, like the Scottish Government, you truly believe that transwomen are women, then the question of what follows largely resolves itself. You’ll believe that, by definition, transwomen should have all the rights that women have and that anyone denying these rights is denying the rights of women.

If, like me, you believe that transwomen are not women, then the questions of what should follow from that belief are much more complicated, especially if, like me, you regard yourself as a decent and compassionate person. One thing that does clearly follow, though, is that transwomen are not entitled to the rights of women, such as women-only spaces and services.

This post, then, is aimed at helping you determine which of these two foundational beliefs you hold.

Maybe, like me, you’re a long-time proven leftie, reluctant to accept finding yourself on the same side as Piers Morgan and Toby Young on any issue, and worried that you might be on the wrong side of history.

Maybe you’re at school or university and are being told by those in authority over you that people much smarter than you (who are also, so you are told, very “progressive”) have proved, in ways you don’t need to trouble yourself with, that transwomen just are women, and that if you ask for any argument or evidence, you’re a reactionary and a troublemaker.

Maybe you have children or grandchildren who are at school or university and who have passed that “knowledge” on to you with the same air of authority with which it was imposed on them. Maybe you think of how you used to correct your own parents or grandparents if they said “coloured” or “negro”, and you wonder if this is just your generation’s version of not moving with the times.

Maybe you’re in a Scottish Government or otherwise Stonewall-captured workplace where you’re given “training” in these issues and where no-one dares oppose the ludicrous dogma which comprises this “training” for fear of abuse, humiliation, dismissal and worse.

Maybe…

Well, you get the point, and if you are in any of those positions, I’ve got good news for you.

I have come up with three simple tests that you can take to establish for yourself exactly where you stand on the transwomen are women statement.

These three tests are all derived from the experiences of lesbian women as reported by journalist Caroline Lowbridge in her recent article published on the BBC website.

I hope you will find taking them to be as decisive as I did.

Before we begin…

A couple of preliminary points:

Firstly, for all the storm of outrage that has greeted Lowbridge’s article over the last few days, I have not seen anyone on any side claim that anything set out there disqualifies the transwomen featured from being transwomen.

Accordingly, for the purposes of the three tests which follow, we don’t need to worry about defining what is or is not a “transwoman”. We can safely say that the transwomen featured in the article and included in my three tests below are, as they are represented to be, genuine examples of transwomen.

Secondly, let me say quite clearly that I believe in the truthfulness of the women featured in the article and I believe in the integrity of the female journalist who wrote about them. I think the attempts being made by numerous authority figures to discredit the women and the female journalist who wrote about them are shameful.

But for the purposes of this post, that doesn’t even matter. If these women and their experiences had been conjured out of thin air by some isometric testing company purely for this purpose, they could hardly have provided us with better tests of where we stand on the statement trans women are women.

So let’s proceed to the tests:

Test 1

Lowbridge reports how 24-year-old Amy, a lesbian, was asked to have sex with a transwoman. The circumstances as narrated in the article are then as follows:

[T]he transwoman in question had not undergone genital surgery, so still had a penis.

“I know there is zero possibility for me to be attracted to this person,” said Amy, who lives in the south west of England and works in a small print and design studio.

“I can hear their male vocal chords. I can see their male jawline. I know, under their clothes, there is male genitalia. These are physical realities that, as a woman who likes women, you just can’t ignore.”

Amy refused to have sex with the transwoman.

So:

Do you believe that this transwoman with male vocal chords, a male jawline and male genitalia is a woman?

If, like me, your answer is a firm no, then I’d say it’s clear that, like me, you believe transwomen are not women.

If, on the other hand, you believe that what happened here is that Amy, a same-sex attracted woman, rejected another woman, with a woman’s male vocal chords, a woman’s male jawline, and a woman’s male genitalia, then your belief is right in line with that of the Scottish Government.

I can well understand why you wouldn’t want to debate that belief.

Test 2

Lowbridge narrates another experience as follows:

Another lesbian woman, 26-year-old Chloe, said she felt so pressured she ended up having penetrative sex with a transwoman at university after repeatedly explaining she was not interested.

They lived near each other in halls of residence. Chloe had been drinking alcohol and does not think she could have given proper consent.

“I felt very bad for hating every moment, because the idea is we are attracted to gender rather than sex, and I felt bad for feeling like that,” she said.

Ashamed and embarrassed, she decided not to tell anyone.

What do you think?

If, like me, you think the transwoman who had penetrative sex with Chloe wasn’t a woman then, like me, you don’t believe transwomen are women.

You may well believe that Chloe was raped by a man. I certainly do.

If, on the other hand, you believe that the transwoman who penetrated Chloe did so with a woman’s penis, then welcome again to the Orwellian world of the Scottish Government.

I can well understand why you’ll have no interest in debating that belief.

Test 3

Lowbridge cites a report published here in which:

One woman reported being targeted in an online group. “I was told that homosexuality doesn’t exist and I owed it to my trans sisters to unlearn my ‘genital confusion’ so I can enjoy letting them penetrate me,” she wrote.

Again, what do you think?

If, like me, you think that these “trans sisters” who wanted to penetrate a lesbian woman with their male genitalia are not women, then you believe, as I do, that transwomen are not women.

If on the other hand, you believe that these “trans sisters” wanted to penetrate this lesbian woman with their women’s male genitalia, then … well, you know the rest by now.

It’s pretty obvious to me why you’d do anything to avoid debating that belief.

How did you do?

If, like me, you concluded that transwomen are not women, then we can talk about ways in which our society can be kinder to transwomen and the difficulties they face, always though with the very clear proviso that the rights of women must be in no way compromised by any such kindness.

If you concluded that transwomen are women, and that women’s rights are their rights by definition, then it’s probably just as well that you don’t want to debate the subject.

I really don’t see what we could possibly have to talk about.

IN DEFENCE OF REALITY

As part of their coalition with the Green Party, the Scottish Government have pledged to introduce gender self-identification within the first year of the present Parliament.

For the reasons I have previously given, this means that men will legally become women just by saying they are, and women will become men just by saying they are.

This will not be regarded by the Scottish Government – or by the police or Crown or Scottish courts – as a legal fiction, but as the simple expression of reality.

We as a society will be expected to believe that people can literally change sex, and there will be sanctions if we don’t.

If the Scottish people do not rise up against this and stop it, we will all have surrendered to collective insanity.

I have been able to tell a girl from a boy and a man from a woman for the entire period of my living memory, a period now extending to well over fifty years.

The evidence of my own eyes and ears over that same period tells me that everyone else who is not in some way physically or mentally impaired has the ability to do it too.

I am confident that the ability that I know I have is one shared by the entire human species.

I am confident that this is so because being a girl or a boy, a woman or a man, must be one of the most overdetermined realities that there can possibly be for human beings.

It would make no sense if we could not recognise that reality in one another, instinctively, as a trait of being human, and without the need for active thought or any training or education of any kind.

It is as fundamental, and as little requiring of justification or explanation, as the ability to recognise the face of your own mother or father or sister or brother out of every other human being on the whole planet.

I say that the ability is overdetermined because if I search my mind, I can think of myriad factors that must enter into it, and I’ve listed some of the obvious ones previously, but if you ask me for some “theory” of how I am able to do it, I can only shrug my shoulders.

It doesn’t matter at all to me how I am able to do it, just that I can, and that it is one of the most fundamental realities on which I base my life.

If the Scottish Government, or anyone else, have a “theory”, or offer to produce an “expert” to tell me I can’t do this, then I am as sure as I am of anything in my life that I am right and they are wrong.

So when they tell me that what I know is a man is in fact a woman or that what I know is a woman is in fact a man, I know that they will be lying to me, trying to get me to accept as a fact something I know to be a fiction.

If the proposed legislation is allowed to pass and Nicola Sturgeon self-identifies as a man, gets a gender recognition certificate to that effect and uses that to get a birth certificate that says she is of the male sex, I know as surely as I know anything that this will be a lie.

If John Swinney self-identifies as a woman and goes through the same process to legally change to the female sex, I know as surely as I know anything that this too will be a lie.

No more nor less than The Party in Orwell’s Nineteen Eighty-Four, the Scottish Government will be imposing on me a version of “reality” that I – and they – know to be an utter fiction.

No more nor less than The Party in Nineteen Eighty-Four, they will be seeking to punish me, and everyone else who knows what reality is, by charging us with “hate crimes”.

It is completely irrelevant to me what their motives are for doing this.

There is no motive in the world worth surrendering reality for, and this is for a simple reason, one that Orwell and his protagonist Winston Smith understood all too well.

If even just once you are prepared to surrender reality and choose to believe in something you know to be false – for any reason, and with any motive – you have lost yourself, and you’ll never find yourself again.

I desperately hope that my fellow Scottish citizens, men and women both, will rise up in defence of reality and kill this insanity stone dead.

But if they don’t, let me use the privilege I have of putting something on the public record, here and now, for the many thousands of readers of this blog.

Boys are not girls, and girls are not boys, no matter how much they think or say they are.

Men are not women, and women are not men, no matter how much they think or say they are.

Males are not females and females are not males, no matter how much they think or say they are.

“Gender identity” is not real.

Sex is not a choice.

I’ll defend reality till the day I die, and they can lock me up if they want to.

THE FABIANI WHITEWASH AND THE COURT ORDER

I’ve been asked if I can make still clearer why it’s a big deal that the Fabiani Report has shown such utter contempt for the truth, as detailed in my last post.

The court order

The following is part of the court order, called an “interlocutor”, made by Lord Pentland at the Court of Session on 8 January 2019, when the court granted Alex Salmond’s application for judicial review against Leslie Evans and the Scottish Government:

“The Lord Ordinary … finds and declares that the decisions of the first named respondent, viz. Leslie Evans … are unlawful in respect that they were taken in circumstances which were procedurally unfair and in respect that they were tainted by apparent bias by reason of the extent and effects of the Investigating Officer’s involvement with aspects of the matters raised in the formal complaints against the petitioner prior to her appointment as Investigating Officer in respect of each of those complaints…” [my emphasis]

In other words, the one specific reason given by the court for finding the actions of Leslie Evans and the Scottish Government unlawful was that the Investigating Officer in the formal complaints of Ms A and Ms B involved herself in matters raised by the formal complaints before she was appointed to investigate them.

That is to say, the one specific reason the Fabiani inquiry was given when it was set up to investigate the unlawful behaviour of Evans and the Scottish Government was the prior involvement of the Investigating Officer, Judith Mackinnon, in the formal complaints of Ms A and Ms B.

But, instead of investigating that prior involvement in the case of Ms B, the Fabiani inquiry has decided that one vital part of the prior involvement just didn’t happen.

The facts, again

It is an established fact that Ms B made her formal complaint directly to Judith Mackinnon by email at 1.56 pm on 24 January 2018.

The Fabiani Report acknowledges this fact:

“24 January 2018: … Ms B’s formal complaint is … received by email.”

It is also an established fact that Judith Mackinnon, who later acted as Investigating Officer, had prior involvement with Ms B on 23 and 24 January 2018.

Again, the Fabiani Report acknowledges this fact:

“23 January 2018: … A call is arranged between [Mackinnon] and Ms B for the following day.

“24 January 2018: The Head of People Advice [Mackinnon] … and Ms B speak on the phone. Ms B’s formal complaint is subsequently received by email.”

So this is a prime example of exactly the prior involvement set out in Lord Pentland’s interlocutor – you know, the one that the whole Fabiani inquiry is based on.

It’s a prime example of the unlawful conduct that the whole Fabiani inquiry is supposed to be investigating.

But instead of investigating it, they find, as a fact, that it just didn’t happen.

They find that there was no prior involvement on 23 and 24 January 2018 because Judith Mackinnon was somehow, magically, appointed as Investigating Officer before Ms B’s formal complaint was ever received:

“The Director of People [Nicola Richards] appointed the Head of People Advice [Judith Mackinnon] as the Investigating Officer under the procedure. This appointment was made on 23 January 2018 in relation to the complaint made by Ms B.”

By finding an obvious falsehood as a fact, they avoid any engagement whatsoever with the very unlawfulness they’re supposed to be investigating.

This is in blatant contradiction of Lord Pentland’s order.

By a Committee of the Scottish Parliament.

In a democracy governed by the rule of law, that should have some kind of consequence.

THE FABIANI WHITEWASH

If you want to know how utterly bereft of truth the whole political process now is in Scotland you need look no further than the Fabiani Whitewash – aka the “Report of the Committee on the Scottish Government Handling of Harassment Complaints”.

One of the many reasons why the Sturgeon clique had to concede Alex Salmond’s judicial review was that Investigating Officer Judith Mackinnon had effectively appointed herself to that role in the complaint of the individual known as Ms B.

This was in the clearest possible breach of the Scottish Government’s own procedure.

It’s just one of the many scandals in the process that ended up costing the Scottish taxpayer well over a million pounds and counting but it’s self-evidently an important one.

It’s one that should have been investigated with great rigour by the Fabiani inquiry so that clear findings could have been made and responsibility apportioned.

Instead, they’ve found the most contemptible way of avoiding any contact with the truth.

Counsel’s opinion

The Scottish Government retained two QCs and and at least one junior counsel for external legal advice and representation throughout the process of the Salmond judicial review. In the lead was Roddy Dunlop, QC.

Dunlop is now Dean of the Faculty of Advocates and has for a long time been one of the most sought-after and respected advocates in Scotland.

In an increasingly horrified series of legal opinions leading up to the final concession of the judicial review, Dunlop charted the ongoing failure of the Sturgeon clique, most prominently Permanent Secretary Leslie Evans, to disclose to their legal team anything close to the full horrors of what they had done.

One such opinion came on 19 December 2018 when it had at last come to light that Investigating Officer (IO) Judith Mackinnon had not only had multiple inappropriate prior contacts with complainers Ms A and B but had effectively appointed herself IO as soon as Ms B’s complaint was received.

I’ll let you read the opinion for yourself. It’s admirably clear and no reader of it can be left in any doubt as to what their own senior counsel thought of the Scottish Government’s “alarming” conduct:

An “unstatable” defence; the deepening “dismay” of counsel; “unexplained” and “frankly inexplicable” failures to disclose vital and obviously relevant documents; the “extreme professional embarrassment” suffered by counsel “as a result of assurances which we have given, both to our opponents and to the court, which assurances have been given on instructions, turning out to be false as a result of the revelation of further documents, highly relevant yet undisclosed.”

And I’ll just remind you here that not a single person in the Scottish Government has resigned, nor has the Fabiani Whitewash even remotely suggested that anyone should resign, over this state of affairs.

But let’s go to the facts themselves:

One of the “alarming” disclosures that had finally been made to Dunlop, the concealment of which to that point was “unexplained” and “frankly inexplicable”, was that less than half an hour after receiving Ms B’s formal complaint by email on 24 January 2018, Judith Mackinnon was writing to Ms B, and arranging to meet her as Investigating Officer without ever having been appointed to that position as required by the procedure.

For the avoidance of doubt, Ms B submitted her formal complaint by email to Mackinnon at 1.56 pm on 24 January 2018.

Less than half an hour later, at 2.23 pm on 24 January 2018, Mackinnon emailed Ms B, acknowledging the complaint and discussing arrangements for meeting her as Investigating Officer.

This is what paragraph 10 of the procedure says about the appointment and status of the IO:

“In the event that a formal complaint of harassment is received against a former Minister, the Director of People will designate a senior civil servant as the Investigating Officer to deal with the complaint. That person will have had no prior involvement with any aspect of the matter being raised.”

The Scottish Government’s Director of People in January 2018 was Nicola Richards. Only she had the authority to appoint an Investigating Officer.

And of course that authority could only be exercised after a formal complaint was received.

No such appointment was made by Nicola Richards on 24 January 2018 – or ever.

Thus, as Dunlop points out in his opinion (having only just discovered these facts):

“The complaint had only just been made. No one had appointed an IO for this complaint. The IO has effectively appointed herself in that regard.”

This was just one of the bombshell disclosures finally made at this point that would very soon make counsel realise that the Scottish Government’s case had been “unstatable” from the outset.

It was, however, a self-evidently important one.

The Leslie Evans version

Reproduced exactly below (with my own gloss in square brackets) is how the Scottish Government – which means, in effect, Leslie Evans – tried to recast what you’ve just read above in their Statement to the Fabiani Whitewash.

Note that they can’t even get their own terminology right. The procedure provides for an “Investigating” — not “Investigation” — Officer:

“Ms B notified the Director for People [Richards] on 23 January 2018 of her decision to make a formal complaint. The Director for People [Richards] then contacted the Head of People Advice [Mackinnon] to inform her and to agree that the Director for People [Richards] would notify Ms B that the Head of People Advice [Mackinnon] was conducting the investigation and that she would be in contact. The Investigation [sic] Officer [Mackinnon] contacted Ms B to let her know that the Director for People [Richards] had informed her of Ms B’s intention to make a formal complaint. The Head of Branch People Directorate 3 [I have no idea who, or what, this is] then set up a telephone call for Ms B to speak to the Investigation Officer [Mackinnon]. Ms B followed this call up by submitting her complaint by email.”

There’s the trademark Evans obfuscation and use of ludicrous job titles to try to disguise the facts but if you struggle your way through it, you’ll see that the key trick is pulled here:

“The Investigation Officer contacted Ms B …”

When Mackinnon contacted Ms B, prior to the making of her formal complaint, “to let her know that [Richards] had informed her of Ms B’s intention to make a formal complaint”, she was not the Investigating Officer.

That is a brazen and quite deliberate Scottish Government lie.

It is simply impossible, as a matter of the most obvious fact, for Mackinnon to have been the Investigating Officer of Ms B’s formal complaint until that formal complaint was submitted, and at the time of this contact no such complaint had been submitted.

What Mackinnon was in fact doing was having “prior involvement” with Ms B which, along with many other breaches of paragraph 10, rendered her purported appointment later as Investigating Officer unlawful and the Scottish Government’s case at judicial review “unstatable”.

That is made as clear as can be in Roddy Dunlop’s opinion of 19 December 2018. It was one of the factors that forced Evans and the rest of the Sturgeon clique into finally accepting defeat, and therefore one of the factors which gave rise to Fabiani’s Committee in the first place.

So the attempt by the Scottish Government here to deceive Fabiani’s Committee should be obvious.

Anyone who looks at it with any degree of care can see through it immediately, let alone a representative group of Members of the Scottish Parliament who have been closely scrutinising the relevant issues for months, and have highly competent and professional specialist staff to assist them in the task.

Well, let’s see.

The standard of competence and integrity of the Fabiani Whitewash

These are the findings of the Fabiani Whitewash on Mackinnon’s unlawful “prior involvement” with Ms B and her effective appointment of herself as Investigating Officer, in the clearest possible breaches of paragraph 10 of the procedure:

“Ms A made a formal complaint on 16 January 2018 and Ms B on 23 January 2018. These were made to the Director of People” [my emphasis].

“The Director of People appointed the Head of People Advice as the Investigating Officer under the procedure. This appointment was made … on 23 January 2018 in relation to the complaint made by Ms B” [my emphasis].

Er, what?

How could Ms B’s complaint be made to Richards on 23 January 2018 when it was not made (to Mackinnon) until 1.56 pm on 24 January 2018?

How could Mackinnon be appointed Investigating Officer of Ms B’s complaint on 23 January 2018 when that complaint was not made until 1.56 pm on 24 January 2018?

From a Committee of the Scottish Parliament charged with the careful and diligent conduct of one of the most important investigations in the whole history of the Parliament, answer comes there none.

All we get is this timeline in an Appendix to the Report:

23 January 2018: Ms B notifies the Director of People of her intention to make a formal complaint.

The Head of People Advice is appointed Investigating Officer under the procedure for the complaint of Ms B. A call is arranged between her and Ms B for the following day.

24 January 2018: The Head of People Advice, acting as Investigating Officer, and Ms B speak on the phone. Ms B’s formal complaint is subsequently received by email.

26 January 2018: A meeting between Ms B and the Head of People Advice, acting as Investigating Officer, is held for the formal interview on Ms B’s complaint.

This is Orwellian doublethink hiding in plain sight.

I’m sure I don’t need to point it out by now but I will anyway, just in case any Fabiani Whitewash MSPs or staff are reading this (though even then, frankly, I’m not confident they’ll grasp it).

The Head of People Advice can’t have been appointed as Investigating Officer of Ms B’s complaint on 23 January 2018 because Ms B didn’t make her complaint until 24 January 2018.

The Head of People Advice can’t have been acting as Investigating Officer when she spoke to Ms B on the phone because it was only subsequently that Ms B made her complaint.

When a Committee of the Scottish Parliament specifically convened for the purpose can’t even get its most basic and important facts right, it’s clear that the Scottish people need to look elsewhere for some person or body that can get to the truth.

We need a judicial inquiry

The writer and academic David Lodge once described Jacques Derrida’s ludicrous poststructuralist “theories” of “deconstruction” as offering to impressionable young college students “the thrill of sawing through the branch you’re sitting on”.

We know of course that Sturgeon and her clique are in thrall to such post-truth “theories” because they lie behind the reality-denying “gender identity” nonsense, and much else, that they are about to try to impose yet more deeply on the Scottish people.

It’s disappointing to say the least that the whole Scottish Parliament are apparently ready and willing to saw through the branch they’re sitting on too.

The Fabiani Whitewash is a bad joke, and all that is said above is but one of myriad examples, some of which I’ll say more about in future posts.

We desperately need a judicial inquiry into what was done to Alex Salmond and why.

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