Sex v Gender - I am still confused

Praise is heaped on the Supreme Court for finally offering 'clarity'. I am still confused and predict many more years of litigation to come without political will to legislate.

It was a wonderful epiphany as a law student, struggling with land law and constructive and/or resulting trusts to realise a simple truth; the Judges were making this up as they went along, in order to support a decision that favoured their sympathetic narrative. Lord Denning was a particular culprit. No wonder I couldn’t understand what the hell was happening! Principles and previous definitions were abandoned or restated to fit a desired outcome. Good news for the person who got what they wanted, very bad news for law students forced to read and attempt to reconcile the judgements, or for anyone who didn’t have spare cash to pay for lawyers once they hit a land law dispute.

I think it is safe to say that if a law ends up in the Supreme Court there is either something wrong with the law or wrong with people’s application of it. I think this is a distinction without much of a difference. Law is our servant; not our master. The further law strays from public understanding, the more expensive expertise you need to buy to identify and apply it, the more harmful this is to society at at large. The biggest problem comes when a law is not fit for purpose but politicians are slow to approve new law. The existing law must then become twisted into a shape that works. this destroys clarity and accessibility which are both essential pillars for the rule of law.

Lots of people who had previously supported the notion of a female penis, begrudgingly welcomed the Supreme Court judgment in the FWS case as saying it brought much needed clarity to this area of law. I am not of course an expert in equality and discrimination law. But I am a barrister and have seen first hand the damage done by law that isn’t clear or which can easily be twisted.

Despite the SC judgment, there remain significant issues in the sex v gender debate about which I remain very unclear. If I, as a reasonably intelligent and well educated person am struggling, I shall assume that many others also will. I set out my problems here in no particular order of importance and more to help bring clarity to my own thinking than to presume I can clear things up for others. But if anyone reading finds this useful or can offer any other solutions, then that is a real positive.

And the underlying fundamental question remains - what does ‘victory’ look like here? If organisations and individuals continue to ignore the ruling, as they have declared they will do, who will take them on? Where is this going to end? Is it ever going to end?

If sex means sex for the purposes of the Equality Act - then what does this mean for GRCs?

I was very pessimistic that the gender critical would ‘win’ in the Supreme Court. I could not see a way round the Gender Recognition Act which created a legal or ‘certified sex’ for the holder of a Gender Recognition Certificate, save for proportionate and legitimate exceptions - for example in sports or rape crisis centres. Confusion abounded about this, often deliberately created, to the extent that many argued that access to a single sex space should be by self identification alone and/or a GRC should be effectively handed out to whoever asked for it. It was the Scottish Government’s attempt to push this into law which kick started the whole grand unravelling of gender identity ideology that ended up in the Supreme Court.

The Supreme Court have satisfying stamped on such attempts by saying that ‘sex’ in the Equality Act means biological sex not certified sex, thus rendering GRCs irrelevant for the purposes of discrimination law. So where do they still apply? It would seem they have one use left for gender idealogues - possession of a GRC allows you to falsify your birth certificate. Passports and driving licences can apparently be falsified for sex on a simple request.

I asked repeatedly on social media where this would put service providers if a man seeks access to a single sex space, such as a gym changing room, and presents a passport, driving licence and birth certificate that declare him female. Two of those documents have photographs. All are state sanctioned. It will be quite clear they are his documents.

I was alarmed at how brusquely my concern was usually brushed aside. I was in essence told it wouldn’t be a problem, a man was a man was a man. Some declared that the amended birth certificate would be clear on its face that it was amended; I don’t believe that as it would nullify the whole point of a GRC which was to allow someone to live in stealth as the opposite sex. However, I haven’t seen a birth certificate produced after a GRC and nor I think had those who declared it wasn’t a problem.

I think it is bonkers to assert that provision of such false documents isn’t going to be a problem for a junior member of staff who won’t paid anything like enough to deal with an aggressive and entitled man claiming to be female.

Why did the Supreme Court justify exclusion from a single sex space on the basis of ‘passing’?

The Supreme Court said this at para 221

Moreover, women living in the male gender could also be excluded under paragraph 28 without this amounting to gender reassignment discrimination. This might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided. Their exclusion would amount to unlawful gender reassignment discrimination not sex discrimination absent this exception.

I agree that women generally ‘pass’ much more successfully than men because testosterone is very powerful. I agree that it would likely be alarming and distressing for women in certain single sex spaces to be confronted with someone who looked and sounded like a man. I would hope that if a woman is going to go to all the trouble of cutting off her breasts and/or creating a facsimile of a penis from her arm or leg flesh, that she would not wish to then join a single sex female space. However, the number of trans identifying women who seem keen to do the most female thing possible, i.e. gestate and give birth, means I cannot be sure about this.

But how do we justify exclusion of a woman on the basis of passing? Why doesn’t that lead to justifying the inclusion of a man because he does? I think it is very rare for a man to convincingly ‘pass’ but it isn’t impossible; I have only seen Blair White and Caroline Cossey on a screen but I would not have known either is male from that exposure alone. Possibly its different in the flesh; I don’t know.

This does not seem to provide the ‘clarity’ for which the judgment was praised; instead we return to a case by case assessment of whether or not someone thinks you look ‘manly’ enough to be excluded from a single sex female space. What is the test here? Who makes the decision? Will detransistioners get caught up in this?

What the hell is the PC of Gender Re-assignment anyway?

The Supreme Court were keen to re-iterate that trans identifying people remained protected from discrimination, abuse and harassment by the protected characteristic of ‘gender re-assignment’ I have had repeated heated debate with those who say this is a vital and important PC and could not be removed and replaced by protecting a belief in gender identity as separate from sex.

I have asked them to explain why it is vital and important. They are not able to, or at least not in a way that I can understand and interestingly and revealingly they get increasingly cross at being asked to explain. As a good rule of thumb, the more indignant you get about being challenged, the less faith you have in your actual position.

Section 7 of the Equality Act reads

1) A person has the protected characteristic of gender reassignment 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.(2) A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.(3) In relation to the protected characteristic of gender reassignment—(a) a reference to a person who has a particular protected characteristic is a reference to a transsexual person;(b) a reference to persons who share a protected characteristic is a reference to transsexual persons.

I have criticised this on a number of grounds. It is satisfied by ‘mere contemplation’ (proposing to undergo) and refers to ‘reassigning sex’ (not possible) by changing qualities which are not defined in the Act. What the hell is an ‘attribute’ of sex? Is this a reference to long hair, nail polish, spinny skirts or any other retrogressive and oppressive fifties sex stereotyping you can dredge up? It can’t be a reference to reproductive organs as these cannot be changed or created; a surgical cavity lined with an inverted penis is not a vagina, a tube of flesh harvested from your arm or thigh is not a penis.

Alarmingly, this PC apparently applies to children of any age, thus promoting a dangerous lie to children that they can ‘change’ any ‘attribute’ of their sex.

Therefore, the Supreme Court with the one hand give a good slapping to the notion of a ‘certified sex’ and on the other, approvingly pat a PC that asserts that sex can be ‘reassigned’. This appears to me to be the opposite of ‘clarity’.

Stop relying on Goodwin v UK 2002

Criticism of the Supreme Court has often taken the form that the judgment now puts us in breach of our obligations under the ECHR as we do not now allow sufficient legal recognition to men who want to be women and are therefore going against the ruling in Goodwin. To that I say ‘nonsense’. Para 120 of the judgment summarises the focus of the court in 2002 - post operative transexuals. At that time the ultimate goal of every transsexual was surgery - to enable them to live in stealth as the opposite sex. The aim was to ‘pass’.

We need to recognise that the landscape has changed irrevocably. In 2002 no one bothered to ask women what they felt about all this, no court discussed autogynephiles or the prospect that men would be arguing about the existence of the ‘female penis’. But regardless of the continuing relevance of Goodwin, I do not see how the EA and the GRA can be reconciled. I do not understand what the PC of Gender Reassignment means and how it fits with the SC declaration that sex in the Equality Act can only mean biological sex.

So where now?

There has to be general acceptance that sex is real and immutable. However, adults with gender dysphoria exist. Those who wish to adopt sex stereotypes of the sex opposite to their own should not be abused, harassed or sacked for this. I think they can be protected by a belief in ‘gender identity’. Most of the time it doesn’t matter a damn what sex you are. I drove into work and had a meeting; it was utterly irrelevant what sex I or anyone else in the room was. But when it does matter, it matters a lot (sports, prisons, hospitals etc) and in those circumstances sex must be protected above gender identity.

We must stop falsifying birth certificates. Those who argue an article 8 right to privacy can be issued with a short form certificate that does not mention sex.

We must stop lying to children. The most obvious and crucial arena for the protection of sex is children and their right to go through puberty. It is heartening to see the growing resistance to those who want children to believe that they can ‘become’ the opposite sex and that this ‘becoming’ is achieved by irreversible and unevidenced medical and surgical interventions. The most recent example of such resistance is the surprisingly sober and professional report of the US Department of Health and Human Services.

But of course, we are still as a society in thrall to the notion that we can ‘change sex’ to the extent that the Cass Review recommended further ‘trials’ regarding puberty blockers. Many are concerned that this is dangerous and unethical. That it is even suggested is evidence of the continuing shadow thrown by the Gender Recognition Act and ‘Stonewall Law’.

It is more difficult to protect children from the obfuscation of sex and gender when the UK legislation is no longer fit for purpose. We will continue to struggle while the Gender Recognition Act exists, while birth certificates can still be falsified, while ‘passing’ is given any credence over the simple assertion ‘you cannot change sex’

Sadly the only thing I am certain about about is that without political will to reflect all this in legislation that is clear and accessible, we face years more of court battles. Next stop is Strasbourg it seems, where Victoria McCloud will argue that his hurt feelings count for more than the immutable reality of sex.

At least this time women have woken up and realised that no body cared to ask us what we thought about all this the first time round. Now we are ready. But ‘victory’ will not be achieved until we can stop agonising and litigating about all this, and rest easy in the knowledge that the law recognises that sex is real and it matters, and that those who prefer to express a gender identity have the freedom to do so, within carefully defined and enforced parameters.

And that children are left alone, to leave irreversible decisions about their bodies until they are adults.