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.