Ben Cooper’s Analysis of Supreme Court Judgement in FWS v Scottish Ministers

[UtopiaPlanitia]

Ben’s analysis of the judgement has been published and I thought FWS would be interested in reading it:

https://oldsquare.co.uk/wp-content/uploads/2025/07/FWS-Why-the-SC-decision-does-not-breach-trans-rights.pdf

Thanks, that's extremely clear. Hopefully those with a duty of care will actually read it.

The link was already posted over on the WI thread. The title of the paper is self-descriptive

Why the Supreme Court’s judgment does not remove, diminish or breach the rights and protections of trans people

This is what posted on the other thread

Wow! That document is such a clear explanation of the SC ruling couched much more in layman's terms than the actual judgment. The SC expressed particular gratitude to Ben Cooper KC for his written and oral submissions on behalf of Sex Matters, "which gave focus and structure to the argument that “sex”, “man” and “woman” should be given a biological meaning, and who was able effectively to address the questions posed by members of the court in the hour he had to make his submissions".
This document is something that everyone can read to understand the SC judgment but doubtless there will continue to be a failure of comprehension on the part of TRAs.

I've been wondering if the 'sex=biological sex' definition is really only restricted to the Equality Act - I know that's all the SC was ruling on, but I wonder how permeable the law is around definitions.

To me, it would make sense that if 'sex=biological sex' in one law, it must mean the same thing in any other law. But I know the law is more complicated than just making sense to li'l ol' IANAL me

How significant is this extract from BC's analysis?

16. The position at common law is that sex is binary, biological and fixed at birth (Chief Constable of West Yorkshire Police v A (No 2) [2005] 1 AC 51, HL, §3 per Lord Bingham, §19 per Lord Rodger, §30 per Baroness Hale; Forstater v CGD Europe [2022] ICR 1, EAT, §114 per Choudhury J).
[my emphasis]

This reads to me as 'sex=biological sex in common law', but I don't understand UK (or any other for that matter!) law so I don't know if I'm reading too much into it.

Can any legal experts clarify the 'permeability' of definitions across different laws, please?

That's a great question as this seems to be what all the trans extremists are focussing on."Aha, the EA might define woman as biological but, in the rest of the law, it's Stonewall's delusions that are really true"

Awaits legal clarification.

Michael Foran’s analysis is that exactly the same tests should be applied to the law in question as the SC applied to EA2010. If certificated sex renders the law incoherent or unworkable then obviously sex can only mean biological sex.

In terms of something like the workplace regulations on toilets I'm not sure whether it is the definition of women, man etc that matters so much as the fact that it would be impossible to provide womens/mens facilities without using the SSE of the EA.

As I understand it the definition of sex=biological sex doesn't automatically translate to all other laws where sex is pertinent but the SC judgement does give a framework for interpreting those other laws and that is that where it would make the law incoherent to interpret sex as something other than biological sex then sex=biological sex. So Helen Joyce said where the law is about bodies, it's biological sex; where it's about paperwork e.g. pensions, marriage, then it's paperwork.

Remember self-ID is not the law. Anyone without a GRC is always their biological sex. We are only quibbling over the small number of people with a GRC.

Okay, but for those of us not following the WI thread I thought that given the hit and miss nature of MN’s search facility this information deserved a thread of its own with a clearly searchable title.

Thanks for sharing

GRC doesn't matter when it comes to inheritance therefore I think we can safely say it is biological sex that does matter in law.

Just finished reading this. So clear and well articulated.

I wasn't having a dig. I actually thought that my post might get more eyeballs on this dedicated thread rather than hidden on the WI thread.

Is it not the EA that creates the allowance for SSE - i.e. any situation where sexes are segregated relies on the EA?

I suppose the workplace regs predate the EA, but I'd imagined the EA was retrospectively applied to any instance of sex segregation.

Anyway, thanks Ben Cooper for this clear statement.

It would because the unit provided differ by sex.

https://www.hse.gov.uk/contact/faqs/toilets.htm

And provision is based on projected needs of your workforce.

Take a ship yard which was traditionaly male dominated or a coal mine which was restricted to men.
The provision of a urinal per 25 employees is lawful provision for men but not for women.

In the case of a coal mine when it was illegal to employ women below ground the employer could build out the miners spaces with no womens areas at all on the basis that they would never employ women.

However should the workforce move to 50/50 the employer must build more provision for women by removing the male only fixtures.

As men can use both while women can not the term woman and man has to be based on the biological process of how the 2 sex differ.

I wonder if Ben had popped a copy into RMW pigeonhole as they share the same chambers 😁

I was thinking much the same thing! 😂

I've name changed for this. I am a lawyer and I also work in the civil service.

Ben C's summary is very clear and accurate, as you'd expect.

The SC was only looking at the interpretation of the Equality Act, not other legislation (such as the Workplace Health and Safety Regulations). Specifically it was concerned with whether the effect of the GRA was to amend the definition of sex in the EA to include certificated sex as well as biological sex. They found that this was not the effect of the GRA on the basis that an expanded definition of sex would render the EA unworkable.

A court would have to go through a similar process with other legislation where definitions of sex/women/men feature, and I think it highly likely that the Workplace Regulations will be next in line. This will need to be a separate analysis to that undertaken by the SC. However a court is likely to follow the same approach as that followed by the SC.

My view is that a court is likely to find that the Workplace Regulations definitions of sex/men/women are biological, as the SC found in respect of the EA. This is because the requirement for single sex toilets/changing facilities in those Regulations is for reasons of safety, which is one of the reasons for analogous single sex exceptions in the Equality Act (such as the exception for communal accommodation and generally for single sex services). It is also the case that the provision of sex-segregated facilities, although mandated by the Workplace Regulations, is only lawful under the EA because of the EA exceptions. Therefore it would be a perverse result if the two pieces of legislation were construed differently.

It's also always worth remembering that these arguments only relate to people with GRCs. There should be no question that people without GRCs should be treated as their biological sex.

Having said all of that, I am afraid to report that the prevailing view in the civil service is that people are desperate to find anything that will undermine the SC judgment. Even in the departments which are subject to Jolyon's JR, officials are broadly sympathetic to Jolyon's arguments and I do not trust them to properly push back against them.

I won't give any more detail in case it's outing. I do think the law is on our side, and eventually the Courts will confirm this. However there is a long road ahead.

Thanks for that.

'the provision of sex-segregated facilities, although mandated by the Workplace Regulations, is only lawful under the EA because of the EA exceptions'

Thats what I reckoned.

How will the Workplace regs get to court, does someone need to make a case or sue an employer, or a JR or what?

That’s depressing but not surprising, the capture has been almost total. I have faith that they’ve underestimated women.

Yes someone will have to take a case to court. This could either be a woman claiming a breach of the Workplace Regs because her employer persists in allowing men (who identify as women) to use the women's toilets/changing rooms. Or it could be a trans person complaining that their employer has stopped them from using the facilities of their "gender" following the SC judgment. Or it could be a JR against the policies of a public body, for example against the EHRC guidance when it comes out.

Having said all of that, I am afraid to report that the prevailing view in the civil service is that people are desperate to find anything that will undermine the SC judgment

im sure there are but the law is the law and women are very determined. They’ll moan whinge and complain but if they know what’s good for the civil service, they’ll not undermine the ruling unless they really want to give Reform an open goal to aim at with ‘out of touch civil servants with gold plated pensions undermining the laws of our land’ . I mean even if tjey don’t give a toss about women (they clearly don’t) Can your colleagues really not see the damage they would do??

They are totally captured to the extent that otherwise very very intelligent people simply don't get it. It is thoroughly depressing.

I’m so sorry, it must be really hard to work in that atmosphere xx

the lack of system thinking is boggling

Do we know whether a breach of workplace regs is included in the Peggie v Fife tribunal?

Good question, I'm not sure and will go and have a look.