Well, well, well. The judiciary has stepped in yet again to tell Parliament what the law “really” means—this time on single-sex spaces and trans inclusion. But unlike the Brexit years, when every judicial decision was painted as an affront to democracy, there’s no outrage from the usual suspects. Why? Because this time, the ruling goes the “right” way.
In a move that’s sent ripples through Westminster and rage through certain corners of Twitter, the High Court has ruled that it’s lawful to exclude trans women from women-only spaces if it’s proportionate and justified. That’s right—under the Equality Act, “sex” means biological sex. Not vibes. Not pronouns. Not how someone feels. Biology.
Women’s refuges, rape crisis centres, changing rooms—they now have the legal backing to say no. And while gender ideologues are fuming, campaigners who’ve been dismissed as “TERFs” are quietly cracking open the prosecco.
Of course, this is a direct result of Parliament’s spinelessness. MPs have been terrified to touch the issue, petrified of a Twitter pile-on, happy to leave policy in the hands of Stonewall and HR departments. The result? A legal grey zone, now cleared up by the courts. Again.
Funny how the rules change depending on who’s getting bruised. When judges blocked Boris from proroguing Parliament, we were told it was an unprecedented assault on democracy. But now? Not a peep. The Guardian isn’t weeping about judicial overreach. The Lib Dems aren’t lighting candles for parliamentary sovereignty. Turns out judicial activism is fine—if it suits your politics.
Let’s be clear: the ruling has big implications. Trans people—especially trans women—now face more legal obstacles in spaces they previously accessed. But that’s not because of judicial cruelty. It’s because Parliament wrote a vague law and then ran away from the fallout.
So here we are. The judges have stepped in. Parliament’s been shown up—again. And the same crowd who screamed about “unelected judges” are now defending them as heroes. Hypocrisy, anyone?
You don’t get to have it both ways. Either you trust the courts to hold the line when politicians bottle it—or you don’t. But spare us the selective outrage.
This time, at least, the judges got it right.
“But unlike the Brexit years, when every judicial decision was painted as an affront to democracy, there’s no outrage from the usual suspects. Why? Because this time, the ruling goes the “right” way.”
No, because in the Brexit decision the judges basically rewrote the UK constitution, entirely to suit their own ideological self interests. There’s nothing Parliament can do about the Brexit ruling, it has fundamentally changed the powers of Parliament and the executive, on the say so of unelected judges, and our elected representatives can do nothing about it. Whereas the Equality act ruling is a matter of the court interpreting a law that Parliament passed. If Parliament doesn’t like the SC decision it is perfectly entitled to change the Equality act to specifically make the holder of a GRC equal to someone born that way. The fact that Parliament won’t do that is because they’d have to argue for it and suffer the consequences at the ballot box for doing so.
But unlike the Brexit years, when every judicial decision was painted as an affront to democracy, there’s no outrage from the usual suspects. Why? Because this time, the ruling goes the “right” way.
What Jim said, but also you misunderstand the case (Again)
The judges were asked to rule on whether the words “woman” and “sex” in the Equality Act mean “woman and sex”. Unlike their creative writing assignments, there was no scope here for judicial invention. That’s why it was a unanimous decision.
There’s no novel jurisprudence on display here, it has nothing to do with judges arrogating new powers to themselves, there’s no “usual suspects”, no heroism, just people who understand the legal questions at stake and those who don’t. Judges discovering that the word “woman” means “woman” in one case also doesn’t cancel out their war on white defendants.
You appear to be trying to triangulate an issue that doesn’t have a third side. (Again)
Even a stopped clock is right twice a day. The SC recognised that textually the GRA had muddied waters which previously had been clear enough, and that precedent over-ruled the GRA’s mud.
All judges do is rule on legal constructs. EU membership is a legal construct, as is the power base and separation of powers in government. Sovereignty is a legal construct. Problems arise when laws and judges try to over-rule objective reality.
The problem with their Brexit decision is that they tried to over-rule the clearly-expressed decision of the majority of the electorate and change the constitution in their favour to do so. Ironically, they failed. In earlier times they’ve have had their heads on spikes for having done this, and maybe those times will return.
And I have to add, Richard not Murphy, that I’m curious why you wave the flag for “trans” in this way. The only thing “trans” about these people is that they are transvestite. It is impossible to transition from one sex to another. They can prance about and behave as they wish (within sexually-defined limits) but remain male or female as they were born, no matter whether or not they have been cosmetically mutilated.
“It’s because Parliament wrote a vague law and then ran away from the fallout.”
Because most of parliament are useless, lazy cunts. Either the sort of useless people who are getting a massive payrise from their shitty union job, or the sort of useless upper class people living off their wives and parents. The first group are too dim to get anything done, the latter group don’t care that much about losing their jobs.
You need people who are smart and care about keeping their jobs because it pays well and they’d rather not go back to being a factory or office manager. People who will want a software project done and start yelling at civil servants when it’s not because they’ll get fired for non-delivery.
It’s an unpopular view, but you’re not going to get that at whatever MPs get paid.
As Interested pointed out last time – the highest court in the land has always adjudicated when the laws Parliament passes are in conflict with each other, vague or don’t address a specific point. To do this they read Hansard and other sources to try to divine intent.
If the trans lobby hadn’t tried to sneak these laws through without proper public debate and used the heckler’s veto to silence opposition the Bill might had had proper scrutiny and been clearer on intent.
Prior to Blair’s constitutional vandalism the highest court was the Law Lords and so there we in Parliament and so parliament remained the supreme law making body. Even now, there is nothing stopping Parliament either rewriting the laws or passing new ones and being explicit on what they mean.
If the court decisions on Brexit had involved, for instance, carefully construing the meaning of EU then your comparison might be apt. But they didn’t so it isn’t.
DM – Yarp, Richard is confused about what judicial activism means. He seems to think it means “when a court rules in a way I don’t agree with”.
Judicial activism is when judges purport to read startling new, hitherto unsuspected meanings into the law, which has the effect of creating new laws at judicial whim and without bothering to consult the democratically elected legislature. The Supreme Court deciding, on the basis of Blond Man Bad, that they had a previously unknown power to decide how and when Parliament should be prorogued was classic activism. It invented a new rule nobody had ever heard of before.
In this case, they have neither invented law or overruled Parliament (as Richard seems to believe). They were asked if the words “woman” and”sex” as contained in the Equality Act carry the ordinary, dictionary definition or whether “women” means “and trannies”. The court ruled that when Parliament wrote “women” they meant “women” – far from overruling Parliament, this simply gives effect to the law they drafted and passed. This is exactly what we’re paying judges to do.
Richard (NOT Murphy).
Really?
Gender Recognition Act (2004) Section 9:
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.
https://www.legislation.gov.uk/ukpga/2004/7/section/9
Hence “for all purposes” a GRC redefines sex so that “if it is the female gender, the person’s sex becomes that of a woman”, unless, as specified in 9(3), an exception to 9(1) is made by this or any other law.
Parliament also said in its explanatory notes:
“Subsection (1) states the fundamental proposition that once a full gender recognition certificate is issued to an applicant, the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes. She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975; and she would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so able to contract a valid marriage with a man.”
It was clearly Parliament’s intention when passing the GRA(2004) that, in law, “a woman for all purposes” meant exactly that.
When the Equality Act 2010 was passed, the drafters were clearly aware of the GRA. However, the EA doesn’t give its own definition of sex, or clarify whether it means biological sex or legal ‘certificated’ sex. It just says “men” and “women”.
The judgement is based on saying things like “it doesn’t make any sense” or “we can’t see any reason why” Parliament would have intended ‘certificated’ sex in some of the cases the EA covers (e.g. discriminating because of pregancy), so Parliament must have meant biological sex in those cases, and operating by the principle that words have the same meaning throughout an act, they must therefore have meant biological sex in all cases. They must have meant it to be an exception under GRA 9(3).
In short – with the GRA(2004) Parliament clearly intended a certificate to define a certificate-holder’s legal sex “for all purposes” unless an exception was made in legislation. The EA(2010) doesn’t say what it means by sex, but the court deduces what they must have meant by means of their own judgement that Parliament hadn’t thought it through properly, that sex defined by certificate “made no sense”, and Parliament must therefore have meant biological sex.
Precisely what Parliament did mean when they wrote the EA(2010) is up for debate, or if indeed they had any clear idea at all in their heads what they meant. But I think there’s a good case to be made that the Supreme Court didn’t make this determination that GRA 9(1) didn’t apply based on what Parliament actually said anywhere, but on what they themselves thought it “made sense” for Parliament to think.
Talking of Parliament I’ve just heard the most extraordinary rumour. I take it that in these comment threads we will ignore the topic because of the Online Dictatorship Act or whatever it is called.
We shall all, I suppose, keep our heads down.
Ah well, It’s cheered me up no end. Probably because I am so out of touch with the “social media” and its ways. Presumably it’s all baseless.
Dearieme – do tell?
Richard not Murphy – get your own blog.
“Dearieme – do tell?”
Nah. It may well all be rubbish anyway. And, rubbish or not, I don’t want to see our esteemed blogger in the clink.
I think the problem is that I don’t normally hear juicy rumours and therefore haven’t been taught by experience to ignore them.
NiV – Yes, we should get rid of the “Gender Recognition Act”, which has made a mockery of our laws by trying to legislate lies into reality:
Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender
No it fucking doesn’t, this is a fantasy. Nobody thinks they’re women, or wants them using the girls’ toilets. Society has been given an intensive learning course on “transgender” over the last decade, and has decided to reject it.
Future historians will write of the time when the British government tried passing men off as women if they had a government-issued Woman Certificate. But they won’t be able to do so without laughing.
@Steve,
But the question being asked is whether it should be done by judges legislating from the bench, rather than the electorate voting in a Parliament to repeal or to pass another law to do so. Who actually defines the law? Unelected judges or an elected Parliament?
Does (and should) it make a difference whether you agree with Parliament? Do judges get to override Parliament in the case of gender law, but shouldn’t be allowed to override Parliament in the case of asylum seekers crossing the channel? Why cannot people of a different political opinion say vice versa?
@NiV: I’m not even sure the SC has said that a transwoman with a GRC is not a ‘real woman’. They kind of have by implication, but the point is still a bit moot, because the GRA(2004) wasn’t what they were asked about, the EA was. But what they have definitely said is that if you’re a chick with a dick you don’t get to be in women’s spaces. Which is really what everyone wanted in the first place. People who go to all the bother of getting a GRC are not the real issue, there’s very few of them anyway. And without the requisite tackle, aren’t that much of a threat to women. The problem is the public and corporate sector basically saying that anyone who says they are a woman really is one, and allowing them to behave as if they were. Possibly for ideological reasons, or maybe just for practical reasons – how do you determine who has a GRC and who doesn’t? Because (I believe) you’re not allowed to ask. So if a stubbly chinned bloke in a dress turns up at your ladies only gym, how exactly are you going to determine if ‘he’ is legally a ‘she’, or not? Easier to just let them all in rather than face lawsuits.
Thus the practical effect of the interaction of the GRA and the EA is to allow bad actors to destroy women only spaces. Which if it was the intent of Parliament, should have been made clear at the time. All the SC court has done is throw the whole mess back at Parliament and say ‘If you really want this to be the outcome of your legislating, please make it very clear by altering one or both of these acts. If you don’t we’ll make the default position the ‘traditional’ status quo.’
I think that the Supreme Court is stating that David Cameron quietly repealed one of the most objectionable bits of New Labour legislation so those of you who have, as if an article of faith, the view that David Cameron can do no right are in a quandary
“But what they have definitely said is that if you’re a chick with a dick you don’t get to be in women’s spaces. Which is really what everyone wanted in the first place.”
But can they? Can they say the GRA 9(1) doesn’t apply to the EA without Parliament explicitly saying so in the EA? Can they just infer it on the basis of what they consider to be reasonable law? If so, can they do it in other cases, like asylum law?
As a separate matter, I’m not sure that the EA does purport to say that anyway. It’s a bit convoluted, but I think the gist is that the property owner is allowed to say that men/women aren’t allowed into certain spaces if that’s for a legitimate reason and is proportionately applied. It doesn’t say they have to. It doesn’t say they can if there’s an easy fix to avoid discriminating, like individual cubicles. Essentially, the purpose of the EA is to forbid single-sex spaces except in certain cases, of which shared toilets and changing rooms are one. When a proprietor does declare a space to be exclusively for women (or for people whose surname begins with a Q, or left-handers, or people who have read Atlas Shrugged), the applicable law is trespass, which is pretty weak tea.
But I don’t really want to get distracted. The issue raised in the original post is whether we support judges overriding Parliament when we happen to like what they’re doing, or do we have rules of the game we follow.
“so those of you who have, as if an article of faith, the view that David Cameron can do no right are in a quandary”
I despise DC because of the way he abandoned the country after the Brexit vote, but I will give him credit for one thing he did (or his government at least) – they amended the mental health legislation to create mental health control orders, which are a sort of halfway house between being sectioned and being free to live as you please.
Previously the mental health system had two states – you were either bonkers enough to require sectioning, in which case the State could lock you up and forcibly medicate you, or you were a free individual, able to live how you wished, and refuse any and all medications. So you had a crazy (ha ha) system whereby people go off the rails, get sectioned, get diagnosed with a MH condition, are medicated for it, stabilise and become capable of living outside on their own again, get their section lifted, at which point they are free to stop taking the meds that made them better in the first place. Their MH then deteriorates, they start behaving more and more erratically until they do something drastic, at which point they get sectioned again, and the whole cycle repeats. Its how many of these dreadful murders out of the blue have happened – people who should be on meds but have been allowed to stop taking them.
One acquaintance of mine went through that cycle about 10 times over a 20 year period. I must visited him in MH units all over England. Since the DC reforms he’s been on a control order, he is now able to live out in the community on his own, but must take his meds as part of the quid pro quo for being out of hospital. If he refuses its back inside for him. Its like a sort of parole for serious mental health cases. He’s had about 10 years now of stable living thanks to the control orders. They have definitely changed his life massively for the better.
” The issue raised in the original post is whether we support judges overriding Parliament when we happen to like what they’re doing, or do we have rules of the game we follow.”
But the judges didn’t override Parliament in the Brexit vote, they curtailed the power of Parliament. There’s no way that Parliament can say to the SC ‘Your Brexit decision is wrong’, because there’s no actual law that they were interpreting. They were just using their views to determine what powers various parts of the system have. And in doing so putting themselves at the top of the pile, because they decided who could do what, not Parliament.
In the EA decision they’ve just made a ruling on the EA as passed by Parliament. If Parliament want to pass a new EA (and GRA) that says self IDing as a woman makes you exactly the same as a biological women, with all the concurrent benefits then they can. No one is stopping them, other than public opinion.
That Equality Act is a farrago of nonsense. We all have equality or nobody does. There was no need to salami slice it. In fact you, or me, or parliament can’t just dish out ‘rights’ (I know, BiS says there ain’t no such thing, and he’s right.) to anyone.
Further, when you make laws in which one person’s rights trip over those of another, you make bad law. Rights should, must be like those public goods (See Tim, I’m paying attention). They must be non-excludable and non-rivalrous. If they can be removed or rationed, they are at best privileges and at worst tyranny.
NiV – But the question being asked is whether it should be done by judges legislating from the bench, rather than the electorate voting in a Parliament to repeal or to pass another law to do so. Who actually defines the law? Unelected judges or an elected Parliament?
But they haven’t legislated from the bench, they said the words “woman” and “sex” in the 2010 Act mean “woman” and “sex”.
That’s not legislating from the bench, it’s reading the legislation from the bench.
But I think there’s a good case to be made that the Supreme Court didn’t make this determination that GRA 9(1) didn’t apply based on what Parliament actually said anywhere, but on what they themselves thought it “made sense” for Parliament to think.
It would be helpful if you read the judgement:
It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010. It has a more limited role which does not involve making policy. The principal question which the court addresses on this appeal is the meaning of the words which Parliament has used in the EA 2010 in legislating to protect women and members of the trans community against discrimination.
Our task is to see if those words can bear a coherent and predictable meaning within the
EA 2010 consistently with the Gender Recognition Act 2004 (“the GRA 2004”).
This is a question of statutory interpretation:
The legislation with which this appeal is principally concerned is the EA 2010 and
we address the effect, if any, of the GRA 2004 on the interpretation of the terms “sex”,
“man”, “woman”, and “male” and “female” used in the EA 2010. The central question on
this appeal is whether the EA 2010 treats a trans woman with a GRC as a woman for all
purposes within the scope of its provisions, or when that Act speaks of a “woman” and
“sex” it is referring to a biological woman and biological sex.
That’s why it’s legally uncontroversial (unanimous decision).
After dozens of pages of lawsplaining:
For all these reasons, this examination of the language of the EA 2010, its context
and purpose, demonstrate that the words “sex”, “woman” and “man” in sections 11 and
212(1) mean (and were always intended to mean) biological sex, biological woman and
biological man. These and the other provisions to which we have referred cannot properly be interpreted as also extending to include certificated sex without rendering them incoherent and unworkable. In other words, in relation to sex discrimination (for the purposes of sections 11 and 212(1)), a person with the protected characteristic of sex has the characteristic of their biological sex only: a trans man with a GRC (a biological female but legally male for those purposes to which section 9(1) of the GRA 2004 applies) is a woman for the purposes of section 11 and a trans woman with a GRC (biologically male but legally female for those purposes to which section 9(1) applies), is a man and not entitled to be treated as a woman under the EA 2010. This conclusion does not remove or diminish the important protections available under the EA 2010 for trans people with a GRC as we have explained. To the contrary,
“If Parliament want to pass a new EA (and GRA) that says self IDing as a woman makes you exactly the same as a biological women, with all the concurrent benefits then they can.”
They already did. The GRA says if you have a GRC that identifies you as a woman it makes you legally exactly the same as biological women, with all the concurrent benefits. That’s not been repealed. The court decided that the law passed by Parliament didn’t apply to the EA, based on their own opinion.
“Subsection (1) states the fundamental proposition that once a full gender recognition certificate is issued to an applicant, the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes.”
It’s very clear what Parliament said in the GRA. The question is whether the courts can overrule it.
“That Equality Act is a farrago of nonsense.”
Yes. Agreed. From my point of view, it’s a matter of property rights. The owner of the property should be able to decide who’s welcome and who isn’t in any part of their property on any basis. If somebody discriminates in a way you don’t like, don’t do business with them. The feminists started it by invading all the male spaces – the gentleman’s clubs and working men’s clubs and male jobs and other “bastions” of the the patriarchy – and all this is just a logical extension of allowing women to wear trousers.
But we have to play by the rules. If law is defined by Parliament, and Parliament pass a stupid law, then the correct procedure is to vote in a government that will repeal it. If unelected courts can override Parliament and say what the law is, then the left just have to take over the judiciary. They don’t have to get elected, and we can never unelect them.
“But they haven’t legislated from the bench, they said the words “woman” and “sex” in the 2010 Act mean “woman” and “sex”.”
Which the GRA purports to define “for all legal purposes”.
“It would be helpful if you read the judgement”
I did. 🙂
“After dozens of pages of lawsplaining”
Yes. This bit is the problem.
The judgement is based on saying things like “it doesn’t make any sense” or “we can’t see any reason why” Parliament would have intended ‘certificated’ sex in some of the cases. It doesn’t say anywhere ‘Parliament said the GRA 9(1) didn’t apply in the EA’ and give references. It’s all the judges’ interpretation of what would be reasonable law. It’s not what Parliament said.
NiV – If unelected courts can override Parliament and say what the law is, then the left just have to take over the judiciary.
The left have taken over the judiciary, and even they know YWNBAW, as the kids and President Trump say.
The judgement is based on saying things like “it doesn’t make any sense” or “we can’t see any reason why” Parliament would have intended ‘certificated’ sex in some of the cases. It doesn’t say anywhere ‘Parliament said the GRA 9(1) didn’t apply in the EA’ and give references. It’s all the judges’ interpretation of what would be reasonable law. It’s not what Parliament said.
No, the judgement goes into tedious detail on precedent and the ordinary rules of statutory interpretation. You are malding because the finest liberal legal minds couldn’t find a way to make ladycertificates compatible with the bits of the EA 2010 specifically talking about “women”.
Sorry, NiV, but past instances in which you may or may not have allegedly frolicked with winsome Thai ladyboys over a game of sexy Trivial Pursuit… were gay, according to this Supreme Court ruling.
“They already did. The GRA says if you have a GRC that identifies you as a woman it makes you legally exactly the same as biological women, with all the concurrent benefits. That’s not been repealed. The court decided that the law passed by Parliament didn’t apply to the EA, based on their own opinion.”
Then Parliament can revise the EA to say specifically that a GRC means you are ‘a woman’ for the purposes of the EA. Not hard is it?
NiV: a lot of law is based on the idea of what a ‘reasonable person’ would expect to be the case, so it’s hardly a departure for the Supremes to take that view.
“NiV: a lot of law is based on the idea of what a ‘reasonable person’ would expect to be the case, so it’s hardly a departure for the Supremes to take that view.”
Of course. How would a reasonable person interpret the literal meaning of: “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”?
The trouble is, everybody thinks they’re reasonable, and yet people nevertheless vehemently disagree with one another. Who gets to decide what’s “reasonable”? Parliament? Or judges? Or criminals?
If the law could be interpreted by reasonable people, we wouldn’t need lawyers!
I defer to m’learned friends, farmers, software engineers, etc.
A very intelligent debate. I am better informed, but none the wiser, as the judge didn’t say.
What is the gender critical version of bollocks?
The judges haven’t over-ruled Parliament. They have told Parliament exactly what Parliament wrote in their Act, contrary to what Parliament had been asserting was what was in the Act.
Didn’t we just have this discussion? The answer remains the same. No, the judiciary has not overruled parliament. It has clarified a definition in the law. This is one of those things that the judiciary is there to do. We have a long tradition of this happening – for example, it was the courts that determined what ‘practical’ and ‘reasonably practical’ mean when applying them in law. The judiciary was not overruling parliament then, and it isn’t here.
NiV: the para you quoted from the GRA, would the average person think that reasonable, and wonder what parliamentarians were thinking? As a species we’ve known what men and women were for hundreds of millennia and there haven’t been public fights about that until the last decade or two. That’s where the ‘reasonable person’ test is based, on centuries and millennia of custom & practice in very many cultures.
The courts defined a reasonable person as the man on the Clapham omnibus. In other words, the man in the street. You and I and people like us. And a reasonable person knows what a woman is.
Still, in other news, Jolyon Maughan intends to grift money out of the gullible to take this one further, so watch this space. Now there is someone who would fail the reasonable person test.
In some ways you have to admire Jolyon Maugham (hear me out!)
He has found a way of making a good living extracting money from people, however gullible, who are upset with current government policies (of whatever hue).
Monetising discontent with government is an absolutely brilliant idea and one which, by definition, can never die.
“The judges haven’t over-ruled Parliament. They have told Parliament exactly what Parliament wrote in their Act, contrary to what Parliament had been asserting was what was in the Act.”
😀 Excellent! Very funny!
“NiV: the para you quoted from the GRA, would the average person think that reasonable, and wonder what parliamentarians were thinking?”
A significant number do think it’s reasonable. But that’s not the question. There are lots of laws that people think are unreasonable – that’s why we have multiple political parties and debates in Parliament and campaigns and arguments on blogs and so on – the question is only whether the average person understands what it means. It is a requirement of law that everyone should be able to understand what they’re being told to do for them to be able to obey it. It is not a requirement of law that everyone agrees with it, or likes it, or thinks it is sensible. Or any law that the leftists don’t agree with would be null and void whenever they choose.
“As a species we’ve known what men and women were for hundreds of millennia and there haven’t been public fights about that until the last decade or two.”
As a species we’ve had slavery for hundreds of millennia. We’ve had tyrants and warlords and priests telling us what to do for millennia. Freedom and democracy are very new concepts in human history. There are lots of things that humanity has believed and done for millennia that we’re well rid of.
And there’s plenty of history from those times – like Deuteronomy 22:5 – in evidence that we have indeed had exactly this argument before.
But the argument isn’t actually about defining men and women. It’s about freedom.
It’s about whether society should let people live how they want, believe what they want, be able to do what they want to do without interference, so long as they aren’t hurting anyone else.
This whole process started, like I said, with letting women wear trousers. For hundreds of millennia men’s and women’s worlds have been kept very separate. Different clothes, different rules, places you’re not allowed to go, things you’re not allowed to do. Women officially got no vote, no say, no power over their own lives. They were chattels of their fathers and husbands, and required to do what they were told by men. They wanted to get out of the prison society put them in. They wanted to break down the walls that separated the men’s and women’s worlds.
And there were a growing number of men who conceded they had a point. The social barriers were largely senseless. If freedom and democracy were human rights, it made no moral sense to deny it to half of humanity. It plainly does nobody else any physical harm if a woman was to parade around in public wearing trousers, or other male-style clothes. Why is it anybody else’s business?
And that principle of lifting unnecessary social barriers and letting people live as they like has swept through society. It has made a lot of people feel uncomfortable – social tabboos picked up in our youth get deeply ingrained in our psychology. But ordinary people do have a lot of sympathy for the idea of freedom, even for people whose lifestyles they don’t understand or see the attraction in.
This current war has been going on for at least 160 years, since JS Mill wrote: ‘The Subjection of Women’. It’s been at the core of the movement in personal liberty and freedom to live as you like. Each battle might last a few decades, until the next generation grows up used to the latest idea, but they’re all connected.
The ‘reasonable person’ looking at the GRA from this perspective isn’t thinking about the reasonableness of the technical biological definition of males and females, they’re looking at the reasonableness of the law making a distinction, and imposing rules and regulations to enforce those barriers impeding people’s freedom to live as they like.
The point of the law is not to say men are women – it is to say that for all purposes of law men are women. There are reasonable people (not all of them, clearly) who would look at it that way.
@Jim – “But the judges didn’t override Parliament in the Brexit vote, they curtailed the power of Parliament.”
What power did Parliament have that was curtailed? What can Parliament now not do that it could have if the judgement had gone the other way?
NiV, there you go special-pleading and contradicting yourself again, because if men are women for all purposes of law, then they’re allowed into women’s single-sex spaces. The basis of this whole problem. And this is what you get not for simply allowing them to believe nonsense – it’s their problem – but granting them legal rights to behave in ways that defy physical reality. You may as well legislate that people can levitate, or that pi = exactly 3.2, or that children really can become cats.
D’ya think if I got a certificate backed by parliament to say I was six foot four that I would be? And folks who didn’t look up to speak to me would be heightophobes? A piece of paper can’t rewrite reality. Parliaments can’t repeal gravity, supply and demand or the value of pi if reality says otherwise.
“NiV, there you go special-pleading and contradicting yourself again, because if men are women for all purposes of law, then they’re allowed into women’s single-sex spaces.”
No. It means you have to come up with an objective justification for why you need to discriminate.
The equality laws allow you to discriminate if there is an objective reason for it. For example, if you are seeking an actor to play a male role, you can exclude women from consideration. If you’re employing firefighters, you can require applicants to be able to carry an eighteen stone man out of a burning building.
One of the reasons allowed for discriminating on the basis of sex is that spaces are shared, people are getting undressed, and someone could reasonably object to doing so in the presence of someone of the opposite sex. But this isn’t specific to sex. You could also reasonably object to undressing in the presence of someone who was gay. Or an adult. Or anyone, simply because you are body-conscious and shy.
If the justification for discriminating is that you don’t want to force customers or employees to feel uncomfortable undressing, then that’s allowed, but then you have to objectively identify all the criteria on which people feel uncomfortable undressing and separate them on that basis. If you can show that biological sex is the only such basis, then fine. If some of your customers say they feel uncomfortable sharing a changing room with anyone, then you’ll have to accomodate that. You can’t say “Hard luck, you’ll have to lump it” to some categories when it happens to be convenient, and not to others. Maybe fat girls don’t like undressing in front of thin girls – then you’ll need separate changing rooms for fatties and thinnies. And so on.
Because the law doesn’t actually stop you having single-sex spaces, this change doesn’t make any difference to that. But to the extent it did, it actually makes the problem worse. This is because the equality act doesn’t actually forbid men from entering women’s spaces, it instead forbids single-sex spaces, with exceptions such as toilets and changing rooms. If we consider biological sex and legal sex to be distinct categories, then the law as it was only outlawed discrimination on the basis of your legal sex, not your biological sex. I.e. if you excluded men and trans-men from the women’s toilets, that would be illegal sex-discrimination, but if you exclude men and trans-women from the toilets, that’s not discriminating on the basis of ‘sex’ and is thus allowed. Now that you’ve declared the protected characteristic to be biological sex, you’ve made it so that excluding men and trans-women from the toilets is now illegal, when it wasn’t before. Well done! You’ve done the opposite of what you wanted.
Fortunately, you can still make (objectively-justified) exceptions, so nothing has actually changed. But it’s an example of the quality of thinking going on here.
However, all of this proves Richard-not-Murphy’s point. The post was not about the merits of the Great Toilet Debate, but about whether our side would hypocritically accept judicial activism when it suited us. Nobody was interested in discussing whether judges could override Parliament. It was all about how right and sensible the decision was, and what fine upstanding impartial guardians of justice all judges are. It’s the same ‘we can break all the rules because we’re right’ thing the left do. All’s fair in love and politics.
No. It means you have to come up with an objective justification for why you need to discriminate.
The objective justification is that men – males – have a Y chromosome, ownership of which has consequences beyond whether or not you’re wearing a frock or have had your todger off. Hence the idiocy of mediocre men cleaning up in women’s sports.
Defining the words “men” and “women” to mean what they have commonly meant in this country for millennia isn’t judicial activism. It’s the opposite: it’s judicial acquiescence to majority opinion.
As for the idiocy of the various equality and gender laws, note that like Net Zero and mass immigration such proposals are deliberately cross-party so that the electorate has no viable alternative by which to vote against them. Neat trick, that. It’s how you get to implement highly unpopular law. It needs to go.
“The objective justification is that men – males – have a Y chromosome”
So you need to have a genetic test done every time you go to the toilet? 😀
So, two people turn up, one with Swyer syndrome and the other with de la Chapelle syndrome, without getting the old test tubes and bunsen burners out, how do you decide who to let in? And why does it matter?
And why does it matter?
To protect women and girls from nonces, exhibitionists, sundry other perverts and mealy-mouthed weasels like you.
TBH just noticing that NiV had subject this thread to his disingenuous wordy nonsense was enough to make me text my sister to check she’s OK…..
Back in 2010, there was a very distinct argument from the trans lobby and hangers-on: sex is not gender; sex is biology, gender is a social construct and is the only thing that matters.
That the EA states ‘sex’ and not ‘gender’ would have meant something important then. Similarly, the GRC is a GRC not an SRC. The idea of a Sex Recognition Certificate would have been laughed at even by Stonewall. What’s happened since then is that the thin end of the wedge came in with the gender crap and at some point in the intervening period there’s been an about-face, and now that you can change gender, of course that means you’ve also changed sex ‘cos they’re the same thing innit.
That both parliament and the executive have ducked any questions — presumably for fear of upsetting the from the river to the sea brigade, see also: Rotherham — means that it was up to the courts to look at what was written 15 years ago… and what was meant by those words when they were written. As many other commentators have added, this is what the court is supposed to do and is not wandering off outside its scope.
“sex is not gender; sex is biology, gender is a social construct and is the only thing that matters.”
The argument started back in the 60s or 70s when lefty feminists argued that there was no innate difference between men and women other than details of plumbing irrelevant to doing a job. We’re all people, inside. All the social differences between the sexes were due to upbringing and social pressure. People’s minds were a ‘blank slate’ at birth, and sexual identity was imprinted on it by society. If you got rid of the cultural aspects, brought kids up identically, women could and would do any job men could do. Your urinary-plumbing was irrelevant to how you did your job as a quantity surveyor or architect or whatever. Sex was just plumbing. Gender – all the socially important differences – was a social construct.
Then right-wing biologists (see Matt Ridley’s book The Red Queen) studied the question and determined that there were indeed innate mental differences between men and women. Their brains were wired differently. The brain is part of the body, after all. No reason to think that genetics stopped at the brain boundary. And some of their most compelling evidence for the lefty radical feminist blank-slaters being wrong was the cases where sex development went wrong (guevedoces, and so on), and you got people with female-pattern brain modules with male plumbing, and vice versa. ‘Sex’ was plumbing and ‘gender’ was wiring, but both were aspects of biological sex, just of different parts of the body.
Of course, it was difficult pulling out the brain to examine its wiring, so the easiest way to determine how someone’s brain was wired was to ask them. So the lefties got the idea that they could restore their blank slate theory, and declared that gender was defined as the answer you got by asking them, it was a matter of choice, and we were back to gender being a social construct, a mutable matter of choice and social conditioning. Gender was what you chose, sex was just plumbing.
The 1950s understanding of sex determination in humans – that there are two sexes, everybody is born one or the other, all aspects align perfectly, and any apparent exceptions are freaks and perverts – is scientifically dead. There are lots of different characteristics of both body and mind that appear in two statistical clusters but which are not perfectly aligned. Whichever individual characteristic you pick, they can always find exceptions where it gives the wrong answer.
However, the authoritarian mind has built a world of rules that cannot cope with such ambiguity. With Procrustean determination, it requires to hammer everyone into one category or the other. There is a joke about a visitor to Ireland being taken across the border region, and getting stopped by a road block manned by men with guns in balaclavas and asked whether he was a Protestant or a Catholic. Not knowing the right answer that wouldn’t get him shot, he replied he was an atheist. The gunman nodded. `To be sure. But are you a Protestant atheist or a Catholic atheist?’
You can either go down the road of inventing new technical jargon to delineate all the possible combinations of sex-correlated characterics to precisely identify the box to put them in, and make rules tailored for each case. Or you can throw away all the boxes, shout ‘We don’t fucking care, why does it fucking matter anyway?’ and tear up all the rules.
The problem we’re trying to solve is that some people feel uncomfortable undressing in front of certain other people. (About 40% of women and 20% of men are body-conscious and don’t like changing in front of people of the same gender, either.) That is easily fixed in most cases by moving to individual cubicles, and obtaining consent where that isn’t possible. A family of five of all ages and genders lives in a house with one bathroom/toilet, and seem to manage. You just go in one at a time and lock the door. A hospital with doctors and nurses of both genders seems to manage. Naturists don’t care, either. You can sit down together like sensible adults and negotiate a rota, or something. You shouldn’t need to involve the courts and Parliament to resolve a trivial dispute like who gets to use the bathroom first.
Like I said, the argument is not really about definitions of male/female/sex/gender. It’s about the freedom to live your life as you choose without arbitrary rules and boundaries. Protecting people can easily be done by other means – that’s just an excuse to keep and enforce your authoritarian rules and roles. It’s like the English view of the Irish Troubles – we don’t care about your stupid Protestant or Catholic dispute, we just want everyone to get along together.
“Like I said, the argument is not really about definitions of male/female/sex/gender. It’s about the freedom to live your life as you choose without arbitrary rules and boundaries.”
What if you want to run a ‘No trannies’ club then? Are you free to do that? Or do your freedoms only work one way?