Is the concept of 'Legal' sex dead and burried?

Biology is sooo inconvenient!

Sex is not binary because a significant minority of people have chromosomal differences. For example people with Turner's syndrome have only one X chromosome (XO). They are female in terms of how they look but are infertile and have other differences. Again, some of us are XYY, XXY and other differences exist.

The commonest chromosomal arrangements are, of course, XX and XY which suits the Supreme Court. But what of the others? What is their legal status now?

The law is an ass!

Joking apart, this is a serious matter. It cannot be that legally some people simply do not exist when they do in reality. I don't know how the SC overlooked it but it is probable that it was missed by the legal teams in this case. Lawyers are not necessarily informed of biology.

The point raised here is not a matter of opinion. It is fact. Oh dear, back to the drawing board........

I feel I should follow up on this, as the debate raged all day about this amongst other things. The judgment points out that there shouldn't be this asymmetry and it's unworkable. So, maybe we can hope that the guidance will switch to trans-exclusion as a default.

In other words, what @TheOtherRaven said! Wish I'd read before I posted....

Not sure of the legal judgement but the way I see this is that the government will legally recognise a man as a woman but it cannot force everyone else in society to do so. Thus single sex spaces are valid.

The judgement mentions in several places: when a space is for women then women means biological sex. And that it is not feasable or reasonable for anyone to try and work out whether a particular man has a certificate or not (and it infringes his privacy to ask) and it makes no practical difference to the women in that space if he is a man with or without a certificate.

Where something is single sex for women, it excludes all men on a sex classed basis. Regardless of certificate or not.

It still holds relevance in the context of our established church, the Church of England - whose homophobia won’t “allow” it to marry same-sex couples unless one of those couples has a GRC calling them the opposite sex.

While other religions can do what they want, the Church of England holds a special place in law and has obligations to the population which a GRC allows some gay men and lesbians to access through this legal fiction.

If we didn’t have a homophobic, established church we might not have had the GRA in the first place.

In a medical setting it's definitely ridiculous.

If one of the main rationales for the GRA was that trans people who were living under the radar shouldn't have to out themselves every time they needed to produce ID... yes, that's the privacy argument and that's the sticky bit.

But I think a lot of this depended on the idea that it was a special carveout for a tiny number of passing trans people who were just living quietly and not bothering anyone... and that's been tested to destruction. Which is a shame for those who were just living quietly and not bothering anyone, but there you go.

Isn't there something sticky in here though, to do with the right to privacy - that in effect, people have the right to conceal the fact that they are not the sex that they are pretending to be?(I know in a medical setting you would assume that privacy is out the window anyway, so it seems ridiculous to be allowed to hide your bio sex)

I believe this thread relates to it;

https://www.mumsnet.com/talk/womens_rights/5313803-womens-rights-to-be-prioritised-in-equality-law-revamp

Have the EHRC said they are going to issue new guidance?

I think the concept of legal sex was on thin ice before this ruling. In order to get a GRC, male applicants have to prove they have been living as woman, which is a concept both sides of this argument believe to be completely absurd.

I think in some ways it's akin to the problem of the NHS computer not calling in transmen for regular screening, because some numpty TRAs campaigned for the right to change the sex marker on your patient record. Which is bloody stupid anyway as your patient record is not a piece of ID but is supposed to contain useful information about your health.

It would be quite possible for patient records to have an extra field so it's Sex = F, Gender Identity = M, or a popup saying this patient is FtM trans. It would even be useful, because trans people often have complex medical needs.

But at least now it's easier to argue that sex can't be overwritten by gender identity, and we might have less dumb arguments from Stonewall about how the NHS computer should somehow be able to divine biological sex without recording biological sex.

I think not, because the existing statutory and non-statutory guidance says, you can exclude a TW from certain women-only spaces if you have a good reason, but if he has a GRC it must be a very good reason. To paraphrase. Hopefully the EHRC will sort this with their new guidance.

I have always used the religion analogy, self ID ultimately a matter of faith.

I am happy that we have freedom of religion but do not want anyone's religion to become basis for law.

Especially when the scientific concept of biological sex can do a better job.

I'm sure this point has been made but surely GR certificates now prove that the person is biologically not the sex they are claiming, so less than useless for purposes of trying to get access to single sex spaces. The fully male-looking person without a GRC is more difficult to refuse entry to single sex provisions than one presenting themselves with one

My preference would be for official documentation to record actual sex, and for Stonewall (or perhaps a new, less batshit operation) to dig out their “Some people are trans, get over it” posters to educate organisations on the fact that while biological sex is fixed, some people prefer to present as the opposite sex, which is perfectly fine (provided they’re not trying to access single-sex spaces for the opposite sex, obviously).

Passport photos are supposed to look like the person, so if someone has facial surgery or transitions and gets a radically different look, their passport photo can reflect that without their sex marker changing.

I'd be for recording both actual sex and cross-sex gender identity where appropriate, in order to avoid errors if someone passes (stop laughing - it has happened) and to smooth social interactions.

Agree, I see it as akin to religion, in that it's about a person's beliefs and lifestyle. There's no need for my religion to be listed on my passport, and likewise no need for anyone's self-declared gender identity. However important these things may be to the individual, and I am not trivialising the importance of beliefs. Passports and the like are about identifying people based on objective characteristics. The old definition of identity, meaning how someone is distinguished from others, rather than how they see themselves!

@ErrolTheDragon I strongly agree we should return to recording sex and not gender for all stats, passports, etc, which I suspect will be a necessary consequence of today’s ruling as organisations will have to do this in order not to discriminate on the basis of actual sex now.

However, while it makes sense to collect additional stats on gender identity where appropriate, I’m strongly opposed to the notion of recording people’s inner gender feeling on official documentation such as passports, for two main reasons:

1. because legal documents are supposed to record objective facts, and an inner sense of gender identity (which can change for all sorts of reasons and is completely subjective) isn’t the type of information such documents are designed to handle; and

2. it means there would be a field on all of our passports for gender identity, thus implying that everyone has one. This would be like having a passport category for which denomination of Christian we are, which just doesn’t work for the people outside of that religion.

What breaks this stalemate? The judgment seems clear that neither male has a right to be there, but if the only evidence of someone's sex is their (obvious) appearance and voice, do you actually end up in court having to say "of course he's male, he's six foot four with a baritone voice and five o'clock shadow"?

I guess if the person is a biological male, their lawyer would advise them they will lose at court as the law is now clear, so the only cases likely to make it to court would be those where a woman has been denied access on the basis of their GNC presentation.

That said, I think this would only really be an issue for online spaces, as it’s typically quite straightforward to tell a GNC woman from a man in person (assuming no cross-sex hormones) in the vast majority of cases, at least.

I don’t think it’s all overturned yet but we should try to get to the place where we get out of this GRA mess.

By that I mean no certificate just no discrimination based on presentation. The idea of changing sex hasn’t worked for society, and mostly it’s been harmful for women.

Agree @ErrolTheDragon that there should just be an addition in brackets for the gender identity part that would make it clear the difference.

So W (NB) or M(TW) or W (GF) or just W for the majority who don't need any add ons.

No, probably not.

what needs to happen, I think - first step is that in order for things to be consistent and coherent we should return to documentation (passports, NHS records, crime records etc) recording sex. Then if it’s deemed necessary, add the ‘gender’ information. That obviously shouldn’t be M/F - if it exists as a clearly separate concept it can accommodate nonbinaries/‘gender fluid’ in a way that the current system doesn’t.

Sex is binary, as the court and reality say. ‘Gender’ can be as multifaceted as human individuality!

CheekySnake I absolutely agree that amending people’s original birth certs is problematic, was a terrible way to do things and should stop.

However, on a practical level, I don’t think this changes much in terms of the power a female-only space would have to eject a biological male. Even if the GRA had never existed, a biological male could potentially present in such a way as to gain access to a female-only space and go unnoticed.

Realistically, it’s not like women are asked to show a birth cert for entry, so it will always depend on the biological male being recognised as such to be denied access. The advantage given this ruling is that the manager of the space has the legal right to operate a space for females, and they will likely feel more confident in questioning or challenging a person whose biological sex is difficult to determine at first glance.

While that’s obviously great for protecting female-only spaces, I suspect the consequence will be an increase in GNC women being challenged for a while, because as you say, the GRA means none of us can use our birth certs or other ID to definitively prove our actual biological sex one way or the other.

This was alluded to in the handouts version as part of the problem, so maybe the full judgment will call on government to sort it out.

If legal sex is biological then legal documentation needs to reflect that.

There would need to be a sex category on documentation that recorded biological sex and then a gender category that recorded chosen gender.

Can't see it happening soon - can you?