Astonishing stuff. However this goes, the Scottish Government has had to lay its cards open in court as to its view on women and women's rights. Which is somewhat divergent from its other public announcements on the matter. Here are the positions so far taken on women, their rights and the inequality they face:
It always includes males who identify as trans (regardless of their legal status or any actual transition) in the class of females unless specifically prohibited from doing so by legislation.
The problem:
The Equality Act does not prohibit treating men and women the same, it allows treating them differently. I am unaware of any situation in law where it is specifically forbidden to treat a subset of men and women the same, (but maybe there are such situations).
It does so because males who identify as trans are "sufficiently similar to females" to be treated the same.
Well, yes, we are all of us members of the same mammal species.
Homo sapiens sapiens.
Which has evolved into a sexually dimorphic species comprising of two distinct and mutually exclusive sex classes, male and female.
So does the Scottish Government challenge this material fact? On the basis of what?
As the Scottish Government has not chosen to ever quantify or qualify at which point it considers a male who claims a trans identity to be so similar to a female as to be treated as female and considering that a male's embodiment of this trans identity may range from a mere thought to a verbal declaration to crossdressing to facial surgery to breast implants to hormones to castration and penectomy, the Scottish Government has thus declared in court that an undefinable subset of men and women are similar and can therefore be treated the same even when it endeavours to remedy historic inequalities faced by only the female sex.
This is a questionable position to take unless the Scottish Government does not accept the protections and rights afforded to women and girls on the basis of their sex under the Equality Act.
And it seems to me that the further statements made by the QC arguing for the government show that this is indeed the case.
As seen on Twitter, she argued in court today that women are not experiencing inequality / discrimination / oppression on the basis of their sex (or as the QC put it "their biological differences") but on the basis of their role. This is an argument we are familiar with - that women and girls experience inequality not on the basis of their sex but their gender. (Gender is here used in the sense of the sex stereotypes and sex role stereotypes imposed upon members of each sex by the society they live in.) However, these stereotypes arise from societal beliefs about the sexes and are demonstrably imposed on the basis of sex, so they cannot be uncoupled from sex. It's a nonsense to deny women and girls are oppressed on the basis of their sex especially given the empirical evidence of harms almost exclusively experienced by members of the female sex class, starting even before we are born.
The most damaging aspect of this is that this position logically leads to the assumption that those of us who are in any way, shape or form disadvantaged because of our sex, could have avoided this by rejecting these stereotypes. That only those women suffer male violence who believe themselves victims.
What was my role as a child when men attacked me? And could I have avoided this by adopting the role of boy-child? Was is that role? And how does one adopt it? Because as a tomboy, I was assertive, boisterous, played football with the neighbourhood boys, rejected dolls, dresses, makeup etc etc etc. I would argue that I did not embody the role of a stereotypical girl and I most certainly did not believe I was going to be a victim of male violence because I didn't have the faintest clue what that was. And yet. I was attacked. Why? By the time I was 14, every single one of my female friends had been sexually assaulted. Why not all of the boys? Why not even most of the boys? All the girls. What was our "role" that led to us being attacked but not the boys?
Maybe you can make sense of it. I can't. The only thing I'm holding onto here is that any argument that can get you out of a bind in court is going to be made. But the policies that have been coming out of this government for the last few years strongly suggest to me that this isn't mere expediency but firmly held beliefs.