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.
Gordon Dangerfield 
I admit that I do struggle somewhat with the wording of some of these court judgments but that is down to my lack of legal training.
However, I guess the court is saying that when it comes to legal challenges which have implications around the protected characteristic then the ‘rigid’ biological definition applies. So, for example, rights access to women-only spaces and rules around women’s services organisations will use the biological definition of ‘woman’. In other contexts, such as data gathering exercises like the census, a wider definition may be used (since nothing is at stake).
However, it is disappointing outcome as this risks adding to the confusion.
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You’ve not only got it right, duncanio, but you have a clearer grasp of the issues than many a lawyer and, dare I say it, many a judge.
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Could it be argued that accurate data gathering, across the population, related to protected characteristics is vital in order to monitor equality rights and deliver services in a non discriminatory way based on protected characteristics in equality law. That the Census therefore must ask about both Sex (biological as now defined) and Gender Reassignment status to allow the state to carry out its public sector equality duty to maintain rights are balanced.
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TrinKats, I think FPFW did make that very sensible argument and unfortunately had it rejected by the court due to its extraordinary view that the ordinary meaning of “sex” for ordinary people is now inflected with the “gender” nonsense. All you would have to do is go out on the street and ask the first thousand people you meet to prove that to be wrong but of course that has never exactly been a strong point of judges.
I must admit that I’ve got more depressed about the court’s decision as I’ve seen feminists rightly point out that women had a better status for the Census in 1920 than they have now. My instinct as a leftie, used to suffering defeats on a regular basis, is to look for the positive and try immediately to work from there — hence the above post — but there’s no disguising that the court has done us serious harm in yet again conflating “sex” and “gender” when the opportunity was there to follow the English court on this and further establish the distinction in law, as well as the obvious distinction in common sense.
“Sex” has a very clear and obvious meaning. No-one, including its strongest proponents, has the slightest clue what “gender” is. Incorporating any element of meaningless “gender” into meaningful “sex” should be anathema to anyone, but particularly to lawyers, so that’s very depressing too.
What depresses me more than anything, though, is that these defeats are being inflicted on us by people who claim to be “progressive” and on our side. With friends like these, who needs enemies?
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So, am I right in saying that Police Scotland et al will have to think again about their completely bonkers interpretation of Sturgeon’s World of Unicorns, and cease and desist from (a) making women call their rapists “she” because said rapist now identifies as Gloria, and (b) sending Gloria and his male genitalia to a female prison to serve out his potentially lesser sentence because his feelings have been a wee bit hurt?
I do hope so
As always Gordon, a joy to see a new post from you.
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I would like to think that would be the case MM but having watched the vagaries of the polis , COPFS , and justiciary I wouldn’t like to place money on it , as we have witnessed in the past the polis even turn up at your door to investigate what thoughts were going through your head when your mouth moved
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Thanks, MM and TH. Needless to say, I share the concerns of you both that the “gender” insanity will continue to prevail in areas where it can be claimed that the context doesn’t bring the court’s “restricted” definition of “sex” as meaning “biological sex” into play. But I think, and certainly hope, that these two cases will be seen in future years as the watershed moment when sanity started to get a foothold in the law.
Now that Scotland’s highest court has definitively recognised “biological sex” as the defining concept when important rights are at issue, we have a piece of clear ground from which we can work to start clearing away all of the “gender” rubble.
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How do you square this with allowing people to self-id their sex on passports and DL?
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It doesn’t square at all for rational people, Monica. I assume that by referring to “acquired gender” rather than sex, they’re taking advantage of the confusion that now reigns everywhere about “sex” and “gender”, including in the minds of judges. I think we have to emphasise the moments of clarity and rationality in the discourse, as with the ones I’ve tried to highlight in my last two posts, and hope to build from there.
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Such a mess. We never should have caved on passports and other ID.
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I agree, Monica. So much has been achieved by stealth that most people are only now waking up to find half of their stuff gone while they slept. As I’ve said before, though, we NEVER lose anyone on our side because once you’ve seen what’s going on you can’t unsee it, even if you’d like to go back to blissful ignorance. That’s a good place to build from, I think.
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How I understand it is that, in Scotland, there are now two classes of women: women who are of the biologically female sex and women who are not, and who may be either non-binary or transgender. The For Women Scotland victory re-established that there are women of the biologically female sex. The FPFW loss established that women in either category can identify as women in the Scottish Census. In that light, the For Women Scotland victory is more important than the FPFW loss, which is why you say, “Battle Lost, War Won”. Is that a fair summary?
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Robbie, I think all that the court established about trans identifying males is that they’re not prohibited by the penalties for lying in the relevant legislation from entering their sex as female on the Census form. See my reply to TrinKats for my view now of the broader picture, which I’ll admit is less positive than the one I expressed in the post itself.
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Reblogged this on Ramblings of a now 60+ Female.
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This is pretty much a duplicate of another comment I left in the other post on the matter, and may have gone unnoticed.
I clearly don’t know anything about the law, but after listening to bits of the hearing the other day I was left wondering why FPFW’s 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.
Also, reading this article I can’t help wondering that if a literal definition of “sex” when you talk about protected characteristics is required, isn’t all the more important to have reliable raw data on how many people you have who fall within said category? To sum up, did FPFW ask the wrong question to the learned judges?
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Does anybody know whether the forthcoming census forces us to have a gender whether we identify as having one or not? Will we be allowed to say that our sex is male or female?
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Once data is confused, it becomes meaningless, which, of course, is the whole intention. If it is confused, you cannot readily point to something and say: that is wrong; or that is right; or applicable to the allocation of resources and to many other issues. One thing that I am certain of now, though, is that females are going to redouble their efforts to fight this, and I believe it could get very dirty and very nasty and very confrontational, as women will start to call a pretendy spade a sexual shovel, and, in defence of our children, the vast majority of the distaff side will sharpen its claws to razor points. While the Ukraine situation unfolds, we should remember, perhaps, that this is an assault on the rights of females to exist as the other half of the human race. I expect a rash of court cases to happen, with many women being arrested for confronting males in female spaces, and to force the legal system to think very hard about the juxtaposition of rights.
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Reblogged this on FarBeyondWritten.
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“….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.”
——
Some of us are old enough to remember that the term ‘gender’ applied only to nouns (Masculine, feminine, neuter) in foreign languages for example in Latin:
Mensa f. – table;
Dominus m.- lord;
Bellum n. – war
In this original usage the term gender was NOT interchangeable with the phrase “biological sex.” Had I asked my old classics teacher if DOMUS was masculine biological sex his chin would have hit the floor. And not only because, despite its ending, this noun is in fact feminine gender. The question would have been a nonsense.
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Interesting point, cynicusinexile, and I confess I’ve not researched the etymology to discover exactly when the two terms started to be conflated in ordinary usage. I do remember clearly that when I did my Higher Latin (and Higher French) at Kirkie High School in 1979, “gender” was DEFINITELY in use outside of the classroom as a polite or posh way of saying “biological sex” in wider society.
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