Favourite bits from the SC ruling

[Pluvia]

I'm up to something that requires me to read the judgment and a couple of paragraphs have pleased me and may well come in useful over the next few weeks. Like this from paragraph 209:

.......Rather, sex has its biological meaning throughout this legislation: “woman” always and only means a biological female of any age in section 212(1). It follows that a biological male of any age cannot fall within this definition; and “woman” does not mean or sometimes mean or include a male of any age who holds a GRC or exclude a female of any age who holds a GRC. To reach any other conclusion would turn the foundational definition of sex on its head and diminish the protection available to individuals and groups against discrimination on the grounds of sex.

I liked
[207]..Accordingly, if a GRC changes a person’s sex for the purposes of the EA 2010, a women-only club or a club reserved for lesbians would have to admit trans women with a GRC (legal females who are biologically male and attracted to women). Evidence referred to by the second interveners suggests that this is having a chilling effect on lesbians who are no longer using lesbian-only spaces because of the presence of trans women (ie biological men who live in the female gender).

208. It is unprincipled to answer this problem by saying, as the Scottish Ministers do, that associations can restrict membership to less than 25 members so that they are not an “association” for the purposes of Part 7. It is also impractical. The Scottish Ministers also suggested in writing that the fact that the members of the association may not be attracted to a particular woman (a trans woman with a GRC who is therefore legally female) or wish to associate with her, does not diminish the protections which they are entitled to in terms of their own protected characteristic of sexual orientation. Even if this is true (which is doubtful) it does not begin to address the chilling effect a certificated sex interpretation appears to have on the ability of lesbians to associate in lesbian-only spaces. The idea that to do so they should seek instead to restrict membership on the basis of “some shared philosophical belief regarding the immutability of sex” (as Ms Crawford KC suggested in argument) demonstrates the incoherence of the Scottish Ministers’ position.

I like it because it just gets what being a lesbian means, and that the concept of male lesbians is daft; it also acknowledges that lesbians have felt excluded from places because of male 'lesbians', and that's rather sweet of them; and finally because it wraps up para 208 by witheringly referring to the Scottish Ministers' position as incoherent. Ouch😄

@MarieDeGournay
Incoherent and unprincipled, I think you'll find.

My personal favourite is the last sentence of this (courtesy of the LGB Alliance’s submission, I believe):

204. The second core provision is section 12 of the EA 2010 which defines the protected characteristic of sexual orientation and is framed by reference to orientation towards persons of the same sex, the opposite sex, or either sex. Read fairly, references to sex in this provision can only mean biological sex. People are not sexually oriented towards those in possession of a certificate.

I’ve just finished reading the judgment this afternoon and I am so impressed by how thorough, considered, logical and principled the whole thing is. They have just absolutely got it. I know as the highest court in the land they are of course going to carefully think it all through, but I don’t think they had to say so much in order to determine the quite narrow point before them.

I hope some TRAs or ‘allies’ actually read it all because if they did, they’d see the judges have been careful to find a path where everyone’s rights are best balanced and protected. The Scottish Ministers’ interpretation would have prejudiced trans people, creating a two tier system (differentiating between those with and those without a GRC) and removing protections in some circumstances (e.g maternity protections for trans men with GRCs). The SC has decided in a way that offers protections for women AND trans people, whether or not they have a GRC.

Sorry I know you were probably looking for quotes but I think the whole thing is just bloody brilliant!

I also just really like the fact that all the things that women have been saying for years have been taken as perfectly reasonable and logical positions by the judges, e.g. there are legitimate reasons to exclude biological males in various circumstances, lesbians by definition aren’t attracted to men, etc.

i know this is all bloody obvious stuff, but I feel like we’ve been gaslit so much over recent years that hearing someone agree that women are different from men feels groundbreaking nowadays!

'Tell us what you really think', eh?
They didn't half give it some welly, did they? 😃

And LonginesPrime's People are not sexually oriented towards those in possession of a certificate is delicious.

It’s interesting to see where unbiased consideration of the issues leads.
It’s as though the Scottish parliament was looking at it from the point of view of ensuring Trans inclusion- anything that had a whiff of excluding a trans person had to be undermined on principle. And in doing that the entire thing becomes pointless. It was being read as a charter to protect transwomens’ rights to be where they wanted to be, rather than to protect women’s necessary single sex spaces.

Love the idea that people are attracted to certificates, that really gave me a giggle!

Thank you all for posting. You've motivated be to read it.

Yes totally agree. No automatic shutting down of things because it’s ‘hateful’, just an unflinching examination of the arguments and the law and the consequences.

And I appreciated how they have not shied away from things that may cause offence where necessary to consider them - for example, there is no pretence that all trans women pass just to save hurt feelings. But I also think they’ve been generally sensitive to the strongly held views on both sides. Although I did like the criticism of the Scottish Ministers’ position as incoherent.

Yes whether intended or not it really emphasises the fact that a certificate changes nout. I really like that the term "certificated sex' was used throughout rather than the old 'legal sex'.

I agree. It really is a model of clarity and logic. It's just what one would hope for from the highest judges in the land - though given how captured other rungs of the judiciary have appeared to be in some recent cases, it's understandable why some of us feared things might come out differently.

I do wish more people would read the totality of it. The level of thought that has gone into it and the way the issue has been considered in such detail really helps with understanding. If more people read it, perhaps it would be possible to have more constructive conversations with those who don't like the 'headline' from it.

This is a particularly good bit:

239. If, in the context of equality between the sexes, the interests of trans women (biological males) who have GRCs (so are legally female) must be considered and advanced as part of the group that share the protected characteristic of being “women”, the PSED will require data collection and consideration of a heterogenous group containing biological women, some biological males with a GRC (trans women who are legally female) and excluding some biological females with a GRC (trans men who are legally male). This is a confusing group to envisage because it cuts across and fragments both biological sex and gender reassignment into heterogenous groupings which may have little in common. Any data collection exercise will be distorted by the heterogenous nature of such a group. Moreover, the distinct discrimination and disadvantage faced by women as a group (or trans people) would simply not be capable of being addressed by the PSED because the group being considered would not be a group that, because of the shared protected characteristic of sex, has experienced discrimination or disadvantage flowing from shared biology, societal norms or prejudice. Whereas the interests of biological women (or men) can be rationally considered and addressed, and likewise, the interests of trans people (who are vulnerable and often disadvantaged for different reasons), we do not understand how the interests of this heterogenous group can begin to be considered and addressed.

Mix the groups and nobody wins.

Much of the judgment is delightfully clear. I embarked on it in a state of dread, and I'm sure I've missed quite a lot of the nuance, but it really is worth taking a highlighter to. It's as if a sensible adult has taken charge.

As PPs have said, after so many years of being gaslit it's wonderful to see all the things we've been saying for ever confirmed and echoed. We were right and Stonewall and its various allies lied and made stuff up.

David Isaac who was chair of Stonewall from 2003-12 then became the Chair of the EHRC in 2016. I'm interested to see that Onora O'Neill was Chair during the critical years 2012-16. She was formerly Principal of Newnham College, Cambridge, a women-only college with a fine feminist history (one of its founders was Millicent Fawcett. It was during her tenure that a decision was made to admit a TW to the academic staff, which broke more than 100 years of all-female tradition. Germaine Greer resigned her fellowship at the college over this. O'Neill later went on to head the EHRC. Hmmm.

I made a typo, but I think it's obvious. I meant to say "aren't" attracted!

I love this bit "People are not sexually oriented towards those in possession of a certificate"

This is brilliant and incredibly important. It actually makes you feel less mad having someone (a judge) explain and ratify the thinking (that crosses the mind) when you try and articulate why it's confusing.

We don't share the same experience.

The end bit of para 184 made me giggle:

184. Relevant discrimination is defined by paragraph 20(2) as including both
“pregnancy and maternity discrimination” and “sex discrimination”. In the case of
pregnancy and maternity discrimination, only women who can become pregnant can be
affected by differential provision of this kind, but a certificated sex definition would
exclude trans men who are pregnant (that is, pregnant women living as trans men with a
GRC). In the case of sex discrimination, it is impossible to see how an assessment of the
differential risk known to be posed by, say, women and men drivers, could possibly be
made by reference to actuarial or other reliable data sources that had also to take account
of certificated sex based on a GRC. There is no rational basis for thinking that having a certificate could make a difference to the risk posed by drivers of different sexes. Here too, sex can only mean biological sex.

What I loved most about the judgement was the unapologetic and clear labelling of trans women as biological men throughout. This ran through like a golden thread. It was clear that the judgement was about whether you'd treat someone with a GRC as the opposite sex, whilst being chased that they were still NOT biologically the opposite sex.

I actually made an "oof" noise when I read the word "unprincipled" in respect of the Scottish Ministers' submissions.

People are not sexually oriented towards those in possession of a certificate.

This is my favourite line - just a beautiful encapsulation of how bonkers a lot of the positions argued have been!

Joanna cherry mentioned this when she was interviewed just after the ruling .
She said lesbians are attracted to women not certificates. I loved that statement!

It was Easter, I think, two years ago when I was on a bridge over the main road near Carmarthen with a bunch of other women with a big TRANSWOMEN ARE MEN banner we'd made. Down below, hundreds and hundreds of cars full of people were passing slowly and hooting and waving and giving us the thumb's up. 90% were positive. A day or two later when we did it again for the traffic jams caused by people going home, a lone policeman with his blue lights on came along and tore down the banner because 'someone might be offended.'

And now the Supreme Court has taken it absolutely as read that transwomen are men. I missed the opportunity to go back today with a banner saying WE TOLD YOU SO.

The Legal Feminists found a corker

“all men, including transwomen”

x.com/legalfeminist/status/1914266197803049065?s=46

Imagine if Maya Forstater had not won on appeal. The SC judges and their judgement would be unworthy of respect in a civilised society.

I disagree that people aren't attracted to a person because of a certificate. I've enticed more than one man into my bed by judicious use of my cycling proficiency certificate.

There were some good bits where they 'respectfully' disagreed with the Scottish judges. 'Respectfully' my arse. I love judge-speak.

Pluvia · Yesterday 22:13

Oh, I saw that on the news online and cheered inwardly, I didn't know you were involved! Good for you!