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.

59 thoughts on “FOR WOMEN SCOTLAND: WHAT THEIR VICTORY MEANS

  1. Wonderful article. Thank you, Gordon.
    Let’s see what happens next and how the SG deal with this momentous ruling, although it’s sad indeed that we consider it momentous when a court states the obvious.

    Liked by 5 people

    1. Great to hear from you as always, sadscot, and the praise is much appreciated. Yes, it’s depressing to be fighting all over again for what our mothers thought they’d won but I really think we may be gaining ground again.

      It’s like taking whatever the colour of the pill is in The Matrix where once you’ve taken it you can’t go back even if you want to. There’s not a single person on our side who’ll ever go back to blissful ignorance and our numbers are growing every day. Meantime, all they have is “no debate” and the hope that people stay ignorant of what they’re doing.

      Liked by 9 people

      1. Sorry for the mistake with the dates. I discovered it by accident the other day as it hasn’t been given any air time, just as what you discuss here hasn’t been talked about – except here.

        Liked by 3 people

      2. I understand that tomorrow is the big day, although it is being reported by exactly no-one I could find. Only on the FWS website is it mentioned.

        Liked by 1 person

      3. I clearly don’t know anything about the law, but after listening to bits of the hearing yesterday I was left wondering why their point was that answering the sex question in a “feeling” way would be unlawful. Why didn’t they instead argue that two different things were being conflated and that everything could be easily fixed? Is answering in that way unlawful? I don’t know, but I do know that the question is now meaningless. That seems to be the key point to me.

        Liked by 1 person

  2. Won’t Scotgov have to repeal or modify the legislation complained of as a result?

    And can we use this to attack the Hate Crime Bill because it famously does not include hatred of women?

    Liked by 5 people

  3. Peter, yes, they’ll have to go back to the drawing board with the specific piece of legislation challenged, which is equal provision for “women” on public boards. The court have told them exactly how to do that: just make clear that “women” in this context means the “biologically female” people who have the protected characteristic of “woman” under the Equality Act. If they don’t now do this and just drop the provision in favour of “women” as so defined, it will surely be obvious to everyone that they don’t care about women at all; just about virtue-signalling and scoring woke points.

    On the Hate Crime Bill, I’d have to think about the implications. I’m as close to being an absolutist on free speech and expression as you can reasonably be and I’m strongly against criminalising speech of ANY kind, including so-called “hate speech” — an expression that, appropriately enough maybe, I despise.

    Liked by 5 people

    1. With you there. Words dont cause physical injury. Freedom of speech must remain unfettered. To have a law whereby speech can be deemed hateful and criminal if any person is offended by it. Humans are offended on a daily basis, we have to just stop being so damn sensitive

      Liked by 1 person

    1. Many thanks, Brian. Unfortunately, the legislation, including the Equality Act itself, has been so ineptly drafted that it lends itself to the wilful misinterpretations of all the bad faith actors out there. As usual, political activism — led in this case by brilliant and inspiring women like the ones who took on the SG here — is what will be needed to sort it and, as usual, the courts will catch up eventually.

      Liked by 4 people

    2. Local elections are coming up. ALL SNP Councillors should be challenged then. We absolutely MUST challenge on this. It is the only chance we have to send a message to Sturgeon.

      Liked by 3 people

  4. What a minefield!

    But thanks Gordon for explaining this so clearly and coherently.

    My summarised take-away from your interpretation of the court decision as things stand now:

    • Transwomen are NOT women and Transmen are NOT men
    • Self-id of gender is invalid for the purposes of accessing single sex spaces
    • Sex may be changed if the reassignment process is completed and/or a gender reassignment certificate
    obtained
    • There is differentiation between “biological women” and “gender re-assigned women” (and similarly for men)
    • The Scottish Government’s funding policy for women’s services organisation may be illegal as it is discriminatory

    Please append/delete/amend as appropriate if these bullet points are incorrect and/or incomplete!

    Liked by 5 people

    1. Many thanks for the praise, Duncanio, and for being such a faithful supporter of the blog. I’ve noted on my visits to the John Smythe Investigates blog on the Fabiani harassment inquiry that you’re a constant supporter there too, so maybe I can take this opportunity to give a wee plug for that blog for those who may not have discovered it yet:

      https://johnsmytheinvestigations.wordpress.com/

      I’m afraid it’s in the nature of lawyers to be pedantic so, with my apologies, I’d re-frame your bullet points as follows:

      — The Equality Act does not create or recognise any protected characteristic of “transgender women” or “transgender men”. The relevant protected characteristics are men as defined, women as defined and people (both men and women) who are at some stage of the gender reassignment process;

      — The Equality Act exemptions that allow what would otherwise be discrimination against a protected characteristic (for example excluding men from women’s single sex services) are invalidated in my opinion if some biological males are included and not others (so that, for example, including a “transgender woman” without a gender recognition certificate but not other biological males invalidates the entire exemption);

      — Sex is legally changed “for all purposes” by the obtaining of a gender recognition certificate; it is an open question what effect this has on the protected characteristics of man and woman under the Equality Act; it is also an open question when the process of reassignment to the opposite sex under the Equality Act is completed and what effect it has if it is completed;

      — There is no protected characteristic of “gender reassigned woman” (or “gender reassigned man”) under the Equality Act; the protected characteristic is people (both men and women) who are at any point in the process of undergoing gender reassignment; and

      — (Almost unchanged from your own formulation!) The Scottish Government’s funding policy for women’s services organisations may be unlawful as it is discriminatory.

      Liked by 6 people

  5. lorncal was in touch with me directly with the following comment as her wordpress access is playing up. I thought it should be shared, and I agree with all of it, including the praise at the start!

    Erudite, succinct and straight to the point. Thank you for this interpretation of the ruling, Gordon.

    “… 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… ”

    It’s a shame they didn’t consult them before they started all this nonsense. Same goes for the Scottish Government. How many times now have they failed to consult – and, more crucially, listened to – the advice of lawyers? I know that lawyers and the judiciary get a bad press sometimes, but mostly, they are conscientious, fair-minded and do the job according to the law. It is hard to fathom how the FM could have gotten herself into this mess after the flawed legal process of the Salmond debacle. Every organization was well-warned, too, that they were behaving illegally. Are you listening Ms Brindley? It is and always was illegal to have Mridul Wadhwa as head of ERCC, as you were told over and over again.

    On a happier note, Stonewall and its Scottish tentacles have just received a body blow, exposing their dubiety and downright mendacity.

    One thing is now certain: this leadership and cohort of MSPs cannot preside over the process of our independence. You couldn’t trust them not to sell us out through sheer bloodymindedness and lack of nous.

    Liked by 6 people

  6. Gordon thank you for your expansive dissection and explanation it makes the ruling clearer

    Gordon this LUNACY and reality denial is being PROMOTED by the nsnp but is also supported by
    ALL the other political parties , including the tories , they were proposing the self same thing WM wise up to just over a year ago but when they saw and felt the kickback from their blue rinse brigade they quickly went quiet , the PROOF is in the amount of WM govt departments that were inthrall and captured by Stonewall and the like , they were deeply involved and fully engaged with theStonewall charter where departments were allocated points for how many charter conditions they implemented and adhered too , those points were also conditional on the amount of funding received , it is only RECENTLY that they have slightly disassociated themselves , there are still many departments contributing funding to Stonewall and operating their policies

    However what I am getting at is that even if the loonball nsnp are defeated on this we have to INSIST on a mechanism to thwart this dystopian stupidity and any other stupid and detrimental legislation that these moronic la la politicians can come up with in the future , these people are DIVORCED from reality as they are proving time after time , GRA , HCB , CHARITY GIVEAWAY OF OUR SEABED TO ENERGY PARASITES ,OIL THEFT, GERS , these things and many more

    What I would like to see and propose is a permanent online citizens assembly in the form of a referendum voting gateway where legislation that is proposed by these bampots can be viewed and voted on online by actual citizens who have LIVED and world experience , what we have currently is student politics by a group of self opinionated , narcissistic , selfie celebrities who stamp their feet and scream when they don’t get their own way
    As I understand it Latvia has a very successful online voting system in place that is again as I understand it difficult to hack or interfere with

    Liked by 2 people

    1. Many thanks for the praise, TH, and good to hear from you as always. I completely agree about the need for greater democracy, both now and in a future independent Scotland (when we would REALLY have an opportunity to get things right from the start), and your proposal would definitely be worth considering as one way of achieving that.

      My own personal democratic Utopia (since, as Billy Connolly said, the desire to be a politician should preclude you from being one) would be a system where everyone at some point had to be dragged kicking and screaming to do their bit on the local council, school board, police board, health board, Parliament or whatever and where everyone deciding policies on those services had to have at least some experience of using those services.

      There would be a lot of wrinkles to be ironed out, of course, but we MUST begin addressing the cancer of the political class — NOT by electing populist charlatans like Johnson and Trump who are of course in with the bricks of the elites they purport to despise, but by actually addressing — and starting to dismantle — the system that creates the elites of the Blairs and Camerons and Clintons and Starmers in the first place.

      And yes, this would also do a lot to quiet down the narcissistic children you mention, and they could play their part later when they’ve taken a few of life’s hard knocks and acquired a wee bit of perspective .

      Liked by 1 person

  7. I also posted this on WOS in respose to a comment by another reader

    E Ebok 11.23am I agree that politicians should be held to account and be held more responsible , I despise the get outs under corporate responsibility , they want the big bucks but it is always someone else to blame when things go tits up

    And that is exactly what is happening in HR ,these clowns , all of them in HR have facilitated a proposal for a BAD policy which has been shown to infringe the law as it stands , YET ordinary citizens are being FORCED to appeal to other citizens for money to oppose those unlawful policy proposals put forward by a SG who WILL NOT listen , a SG who have a multitude of solicitors and legal experts working on their behalf but who are either not EXPERT enough to know they are breaking current laws OR they know and have advised the govt re the situ but the govt don’t give a shit

    Either way we are dealing with not just a SG but the Scottish Parliament who are NOT competent enough to determine if the proposed legislation is viable or legal or infringes on current legislation , THIS shows the GROSS INEPTITUDE of all the politicians parking their arses in HR WHEN the citizens have to raise money for lawyers to educate these morons

    YET the morons who voted acceptance of these policies can swan about HR and preen themselves at their progressiveness with NO ACTION taken against their STUPIDITY or waste of finances , we HAVE to make them more answerable

    Liked by 3 people

  8. Gordon, thank you for bringing this case to our attention and for forensically explaining its significance to me, an English lawyer. Let’s hope this important judgment starts the unravelling process talked about. Some common sense in a world going truly mad.
    Great also to see you posting again.

    Liked by 1 person

    1. Great to hear from you too, Ingwe. Yes, the blog has been sadly neglected due to a double whammy of having a new client these last few months whose instructions have both taken most of my time AND prevented me from saying anything more for now on the blog about the Alex Salmond case. Sorry to be so enigmatic to readers of these comments but suffice it to say I consider the confidential material I now have on this to be dynamite, and the SG should be quaking in their boots at what is coming.

      Liked by 6 people

  9. Now you’ve really piqued my interest! I realise we’ll have to wait until it’s appropriate for you to post further details. All in good time.

    Thank’s too for the link to the John Smythe site. I’ve subscribed to this as well.

    It may be that I missed it (if so I apologise) but there seems not to have been any coverage of the outcome of the police’s investigation into the alleged £600,000 missing from the SNP accounts. Has there been a determination or is the matter still ongoing?

    A further disappointment, to me, is that your important work commitments are probably preventing you from further novel writing. I hope there’s a period, in the not too distant future, when you’ll have the time and will for further recreational writing. All the best.

    Liked by 1 person

    1. Thanks again, Ingwe, and I’ll give you a shout by email to catch up. I keep threatening to use the blog to start flogging the novel and one of these days I’ll do it! Needless to say, I really appreciate your support and encouragement.

      Liked by 1 person

  10. Thank you Gordon.
    Where does this leave an organisation that employed a biological man for a “woman only post” as allowed under Schedule 9, Part 1 of the Equality Act 2010 on the basis the man had identified as a woman when applying? Where does it leave any unsuccessful but biological women candidates?

    Liked by 4 people

  11. Thankyou for highlighting the significance of this legal judgement. It gives some hope to those concerned with where we seem to be going.
    I heard today the BBC quoting a poll that they had had conducted for them that claimed the majority were happy with potential gender reassignment laws – but then it seemed to go on to say that the vast majority of the population hadn’t been following the discussion at all and therefore were stating a view while being ignorant of the implications. Is this a fair reading of the poll? And does the BBC have any reason to present it as a poll in favour of the governments position?

    Liked by 1 person

    1. David, I haven’t seen the poll but I think most people are still where I was a few years ago — especially if they’re lefties like me — and still just have a vague notion that the issue is one of being kind and tolerant. When you explain to them what’s actually happening in women’s services, sports, prisons etc, and about the epidemic of teenage girls who are mutilating their bodies with surgery and/or taking drugs which will cause them severe and irreversible damage, and about the scores of men who formerly admitted perfectly cheerfully that they got a thrill out of cross-dressing and have now decided they’re women, and entitled to all of the rights our mothers fought for … well, in my experience, they tend to change their view.

      Liked by 2 people

      1. Gordon (and David Mac)

        The BBC poll that is mentioned by David does indeed show a the majority of persons sampled to be in favour of ‘making it easier for people to obtain a gender reassignment certificate’. This shows that a majority are indeed in favour of this. But, of course, only unkind people would surely oppose that very general principle! So the question is really not meaningful in any sense.

        What is more revealing is that:

        1. On the question of self-id there is roughly a 50/50 split: 40% for, 38% against, 22% don’t know/no opinion

        2. On the possibility of reducing the minimum age from 18 to 16 to apply for it is 31%/53%/16% (for/against/other)

        3. On reducing the time to live in acquired gender from 2 years to 6 months the splits are 37%/44%/19%

        But, to me, the most important finding is that around TWO-THIRDS of people do not ‘follow the debate closely’! This bears out what Gordon’s intuition is on this.

        There have also been 3 other recent polls which show quite a different picture on the question of self-id. They were commissioned and carried out by (1) ScotGoesPop / Panelbase, (2) Murray Blackburn Mackenzie / Survation and (3) For Women Scotland / Panelbase. In summary they indicate that around 20% to 29% are in favour of self-identification of gender as the way to make life easier for transgender folk and, on average, there is around a 2:1 ratio against.

        I would suggest that a good place to get a fuller analysis of polling results is James Kelly’s ScotGoesPop blog. James’ expertise is in designing surveys and interpreting the results thereof. I commend it to you and here are a few links to his various assessments.

        James Kelly on the recent BBC / Savanta Poll:
        https://scotgoespop.blogspot.com/2022/02/why-results-of-bbc-comres-poll-on-gra.html

        James Kelly on the recent ScotGoesPop / Panelbase Poll (October 2021):
        https://scotgoespop.blogspot.com/2021/10/exclusive-scot-goes-pop-panelbase-poll_28.html
        https://scotgoespop.blogspot.com/2021/10/scot-goes-pop-panelbase-poll_31.html

        James Kelly on the recent Murray Blackburn MacKenzie / Survation Poll (December 2021):
        https://scotgoespop.blogspot.com/2021/12/another-poll-this-time-conducted-by.html

        James Kelly on the recent For Women Scotland / Panelbase Poll (December 2021):
        https://scotgoespop.blogspot.com/2021/12/a-third-poll-in-quick-succession-shows.html

        In addition here is the BBC reportage of its’ own poll on this subject:
        https://www.bbc.co.uk/news/uk-scotland-60214574

        Finally, The National has an article on the BBC poll and the subject in general. It is written by Stephen Paton, whose weekly columns in the paper are often related to this subject. A quick click on his linked twitter account at the top of his articles reveals that he describes himself, inter alia, as a ‘freelance writing on LGBT+ liberation, the environment and independence’. It might perhaps be worth bearing that in mind as you peruse his published piece:

        https://www.thenational.scot/politics/19938931.anti-trans-rhetoric-not-representative-scots-independence-movement/#comments-anchor

        Sorry for the long post but to get a greater handle on what’s going on, and a balanced picture, it seems necessary to give a fuller context.

        Liked by 2 people

    2. David
      Yes, BBC Scotland were using that poll of theirs extensively on the day in question to sell the mistaken notion that all is well with the proposals and everybody’s happy when nothing could be further from the truth. Bear in mind that Steven Nolan’s investigations named the BBC, among others, as being under the heavy influence of groups like Stonewall. While the BBC has since pulled back from that due to the publicity generated by Nolan’s findings, it doesn’t mean they’re not still going a particular route in order to mislead. I’m not a fan of polls of any kind to be honest. I hate it when someone consults a few people and then declares their views to represent “the people of Scotland”!

      Liked by 1 person

  12. How on earth can we be in a situation where we have one law that says men aren’t women under any circumstances and no one has to pretend they are (eq act) and another law (gra) says that some men are women and we all have to pretend that’s actually true.

    Only one of those two laws actually matches reality. Only one of those two laws respects women’s rights. One of those two laws should not exist.

    Liked by 2 people

    1. Agreed, Platinum, it’s a mess and needs a total overhaul. If all parties were in good faith, we could recognise that “sex” and “gender” now mean totally different things and re-draft the laws accordingly. Of course, no “gender” activist will ever agree to that because as soon as that distinction is made clear, all their “arguments” collapse.

      Liked by 1 person

  13. Sorry to be so late to the party, I did have a wee success of my own to celebrate (only my Masters, nothing as awesome as For Women Scotland’s thrashing of NuSNP and all who sail with them) but I am back on Planet Sex Not Gender now

    Firstly, thank goodness you are back Gordon, here at Molly Towers you have been missed beyond measure (tho’ your new client and case have me drooling…… It’s fine, I can be patient)

    Secondly, when does Mridul Wadhwa get to reframe his trauma down at the job centre as surely now ERCC cannot justify his appointment as CEO?

    Liked by 1 person

    1. Congratulations on the Masters, Molly’s Mum — that’s brilliant news!

      As always, I’m greatly encouraged by your very generous praise of my efforts. Many thanks.

      Regarding MW, I hope for the sake of Edinburgh women that it’s soon.

      Liked by 2 people

  14. This comment isn’t really about Gordon’s excellent post. It is just to say how generally heartened I feel reading so many of the posts on this blog.
    At a time when the world is descending into totalitarianism and possibly world war three, I like to think that readers of this blog (apart from those members of the Scottish Government who look in to understand what’s really going on) constitute a majority.
    Displaying rational thought, consideration for and of others, tolerance and kindness are what we need now as well as letting the powers that be know that we don’t accept their distorted, inverted narrative.

    Liked by 3 people

  15. Thanks for this blog, Gordon. Section 9(1) of the Gender Recognition Act is one of the most misleading provisions I have ever come across. It says this: “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender…”
    As you comment, ‘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”.’
    But the really misleading thing about GRA Section 9(1) is that the Act itself then goes on to list various purposes for which the person’s gender does NOT become the acquired gender. They are listed in https://www.legislation.gov.uk/ukpga/2004/7/contents sections
    12.Parenthood
    13.Social security benefits and pensions
    14.Discrimination
    15.Succession etc.
    16.Peerages etc.
    Furthermore, the Equality Act 2010 also lists various purposes for which the person’s gender does NOT become the acquired gender. It is a mystery to me why the GRA page of Explanatory Notes does not explain any of the exceptions in the GRA nor the EA: https://www.legislation.gov.uk/ukpga/2004/7/notes/division/4/9
    Here are the single-sex exceptions in Equality Act 2010
    1. Separate and single sex services (Schedule 3 Sections 26, 27 and 28)
    2. Sport: (Section 195)
    3. Occupational requirement (Schedule 9)
    4. Communal accommodation (Schedule 23)
    5. Charities (Section 193)
    6. Associations (Schedule 16)
    7. Schools (Schedule 11)
    8. Political parties (Part 7)
    This is from https://sex-matters.org/posts/updates/ehrc-to-issue-guidance-on-single-and-separate-sex-services 18th October 2021, about how EHRC is to issue guidance on single-sex and separate-sex services.

    Liked by 2 people

    1. Agreed, Robbie, it’s an absolute mess. I hate to criticise the EHRC right now when they’re under concerted fire from the “gender” zealots but they have to take a lot of the blame for their misinterpretations of the legislation, their woolly “guidance” that raises more questions than it answers and their general failure to grasp the nettle and tell it like it is for fear of being cancelled by the wokies — which of course has now happened anyway because you can never be woke enough to please them and, to paraphrase the name of a once popular combo, Woke Will Eat Itself.

      Liked by 1 person

      1. The thing to remember is that for 4 years the EHRC was Chaired by the former Chair of Stonewall, David Isaac. While he was in post all was well in the LGBTQ+ world as their man was in place and they were getting their way.

        Now that Baroness Falkner is Chair she is all about the balancing of rights between the 9 protected characteristics, not just the one. (What is the famous Spock line from Star Trek – the needs of the many outweigh the needs of the one.) Anyway the LGBTQ+ lobby are all spitting out their dummies at the adult coming back into the room.

        I’m hopeful the Baroness will put some EQUALITY back in the Equality Act.

        Liked by 2 people

      2. Ah, TrinKats, I’d missed that point myself, so I hope it’s similarly informative to others. Of course it makes sense as soon as you point it out — and gives grounds for cautious optimism that the EHRC aren’t the dead loss I thought they were — though I see the Scottish version is of course captured as we’d expect!

        Liked by 3 people

  16. I’m puzzled, and I hope there’s a simple end to that puzzlement.

    Sex is legally changed “for all purposes” by the obtaining of a gender recognition certificate; it is an open question what effect this has on the protected characteristics of man and woman under the Equality Act; it is also an open question when the process of reassignment to the opposite sex under the Equality Act is completed and what effect it has if it is completed;

    Surely the obvious end or completion of ‘gender reassignment’ is the issuing of a gender recognition certificate itself?
    Given Scot gov plan to do so on a self identified basis, then all such men would be ‘for all purposes’ be legally changed to women?

    Are we celebrating too early, given your own indications that the court has left much unsaid, you seemed to differentiate in the article between those biological males who had already received such and anyone doing so now, but I was unclear upon what grounds, can you elaborate?

    Like

    1. Brian, your puzzlement is well justified and I won’t pretend that I have clear solutions to it. As I say above, the lawyers who drafted these provisions should hang their heads in shame in my opinion.

      The central problem is the inconsistent use of “sex” and “gender” as sometimes apparently synonymous and sometimes not in both the 2004 and 2010 Acts. There is no excuse for that as these terms already sharply diverged in their meanings in both academic and ordinary discourse well before 2004, let alone 2010 — for example, I was in a Gender Studies seminar in graduate school at the University of California in 2002 (in the English Department, so nothing whatever to do with biological sex), and such courses had been running for many years already by that point. It was, or should have been, well understood by the drafters that using these terms as they did would generate huge confusion and uncertainty.

      Robbie in his comment above raises one of a number of other inconsistencies and contradictions in the drafting whereby, as you’ll see if you read the comment, “for all purposes” demonstrably means “NOT for all purposes” after all.

      My point in the post, then, was that, while on the face of it “for all purposes” should mean that the 2004 and 2010 Acts dovetail so that the “gender reassignment” process ends with the issue of a gender recognition certificate (GRC), the court’s refusal to say that in terms, and other clues — for example in the EHRC guidance, which appears to say that “gender reassignment” has no relevance to the protected characteristic of “sex” — should make us cautious.

      Others have made the point, with which I agree, that IF the issue of a GRC DOES in fact allow, say, a biological man to claim the protected characteristic of “woman” in terms of the 2010 Act, then there is a very good argument that the Scottish Parliament CANNOT reform the 2004 Act at all because the 2010 Act protections are reserved to the UK Parliament and, although the Scottish Parliament can reform the GRA itself, it cannot make changes which impinge on a reserved matter, like the definition of “woman” under the 2010 Act.

      If that has just made you even more puzzled, then I apologise. Maybe the court will make things clearer in the appeal on the definition of “sex” in the Census, which is being heard tomorrow!

      Liked by 2 people

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