There are lots of subtleties about the interaction of the EA and other legislation. For instance, the Workplace Regulations is informed by the EA: "The regulations ensure that the workplace meets the health, safety and welfare needs of the workforce, including people with disabilities. The definitions also include those coming under the definitions from The Equality Act 2010" (https://www.leia.co.uk/wp-content/uploads/2020/11/25-Workplace-Regulations-1992-issue-3.pdf - the Lift and Elevator Industry Association, just a random pick of interaction between the two bits of legislation). So if the WR talk, as they do, about providing single-sex facilities for females if there are more than 25 people on the site, then "females" means what the EA says. So I'm not so persuaded that the Good Law Project, which has an absolutely woeful track record in all its challenges on this narrow topic, has any justification in its legal swagger.
And by the way, the GLP's claim that one of the signers of the LBA is "intersex" is misleading: like everyone, they're either male or female. "Intersex" is an outmoded word, since 2005; those in the field now use the phrase "difference of sex development" (DSD). Nobody is "between" sexes; the word was abandoned because it's misleading. The person involved will know, from their consultation with doctors, what their biological sex is, even if their presentation is difference (for example if they have CAIS).
I have very serious doubts that the GLP's action on this will have any success: a 5-0 Supreme Court judgment which is a clarification of existing law about the interaction of human rights between the two sexes. It is not new legislation. It does not change any existing legislation. I do not see any path to a successful challenge in the ECHR.
You didn't mention that Owen, as chair of the WESC, seemed completely uninformed about what the SC judgment (there's no "e" in court decisions) affects: she claimed it's "just about membership of boards". No - that's what kicked off the challenge, but the upshot was to clarify what "sex" means in the EA. And claims that the GRA somehow overrides the EA are false too: S9(3) says that other legislation can override it. (https://www.legislation.gov.uk/ukpga/2004/7/section/9)
"The EHRC.. is attempting to rewrite [the law] so that it is as punishing to trans people as possible". The EHRC's job is, largely, to implement and protect the EA, isn't it? If the SC gives them a clarified reading of what the meaning of the EA is, should the EHRC say "oh, those judges! Just ignore them." Of course not. That's why the read-across to other legislation such as the Workplace Regulations becomes important, and unavoidable. Imagine if, as soon as the EA2010 had been passed, this court case had arisen and progressed to the same result, which would have been at the then-new Supreme Court. We'd be in exactly the same position as now, but without the many years of having had what now turns out to be the wrong interpretation of the law. There's no rewriting here. The EHRC has to consider where the EA affects people, and try to find *legal* descriptions of what organisations need to do, if anything.
You write "Most people cannot take a job if they have to out themselves to their colleagues whenever they need the loo." I'd ask: really? This is very easy to claim, but is there data - polling or similar - to back it up? (I couldn't find any on a quick search.) Any workplace should, thanks to the EA, also have toilets (aka "sanitary facilities", mentioned multiple times in the SC judgment) for the disabled or mothers etc, which provides an easy option. "They will not go to a restaurant or the theatre or attend trade union meetings or go to church or see their child in a school play." Again, all of those would have multiple facilities. And as I think I said on a previous post of yours about this, reasonable people can agree about things. The EHRC interim guidance also says" "however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use". That's unequivocal.
And there's the final subtlety that Falkner pointed out: this guidance, and the concerns expressed, only applies to holders of GRCs - about 8,000 people. For those not holding GRCs, nothing has changed at all.
Thanks for taking the time to address this very thorny issue, Ian. What has been lost in so much of this, which you highlight, is the very real problems it creates for trans people especially trans women who seem to attract a lot more hostility and attention than trans men with lots of talk of “protecting safe spaces” etc.
Yet the reality is that the number of times that trans women cause problems in such spaces is infinitesimal. In my 68+ years as a female user of such spaces I can remember not one single incident. I don’t even recall coming across a trans woman in such a space. Nor is this an issue which is discussed amongst my female friends and acquaintances which I would expect if it were a real problem. When I have dropped it into a conversation it is literally a non issue.
The net result is that a very small nut is being attacked by a huge hammer for reasons completely unrelated to the excuse for it ie the safety of women and girls. This must not stand.
Not sure why you feel the need to be so aggressive. I was addressing some of the points raised in Ian’s piece and relating my own experience as I deemed it relevant. How you infer from that that I don’t think other groups have rights I have no idea since I said no such thing.
You could ask a biologist. The development paths to male or female are antagonistic in the embryo. So you cannot be both. You’re one or the other. Once again: this person’s doctor will be treating them appropriate to their sex. Read up about DSDs if you haven’t.
Explain how mutually antagonistic development paths can lead to an outcome which is both, then. I note from your profile self-description that there may be some motivated thinking in your refusal to accept the binary.
Are you sure that your fundamentalist binarist bioessentialism isn't in someway "motivated thinking" by a need to reinforce a pre-existing moral hierarchy? Because it neatly reduces human development to an acontextual reality which conveniently ignores the complexity of the entire topic, and the fact that development is not preprogrammed, not definitive, and whilst it might tend towards dimorphism, the overlaps in the phenotypes are far far greater than the distinctions. Indeed, this is the fundamental problem with any Platonic or Aristotelian system of categories.
(If you really want to hire me as an educator, feel free to privately message me and we can discuss my hourly rates.)
The binary system is a parsimonious explanation which applies across the animal kingdom and doesn’t elevate Homo sapiens - which evolved from a common ancestor to all the others - above other species to give us some special ability to have “in between” sexes just because we can think.
Development is “preprogrammed” by your genome, and the overlap in phenotypes stops at a crucial juncture: the two different sexes.
Quite easily. Most male sex characteristics in humans are the result of cell organization as a response to androgen exposure. If a person’s cells cannot uniformly react to that androgen exposure for whatever reason, it will result in either a mixed phenotype, or a female dominant phenotype. That’s just one of dozens of examples of how one can end up with a mixed phenotype.
As one biologist to another, shall we discuss whether sex is binary or not? I'll go first. Sex is defined by gametes, if which there are two types (https://www.theparadoxinstitute.com/watch/why-sex-is-binary) therefore sex is binary. That fact, and the fact of a spectrum of how people feel about their gender can be true at the same time.
The paths being antagonistic still doesn't make the classification a simple binary. Male/female sex can be defined in multiple ways and each one leaves edge cases that does not fit into either.
If you suggested that someone with two X chromosomes is female and someone with an X and Y is male, then a person with Klinefelter is both, and a person with Turner syndrome is neither.
The only binary is the box that's ticked on the birth certificate.
If they’re antagonistic, you can only be one or the other - agree? You can’t go down both paths. I’m very aware of the many different DSDs (which are not all due to variations of sex karyotype) and that distinction can be difficult. But that’s why we have medical specialists. And those specialists understand that sex is binary.
"you can only be one or the other - agree?". No, because it's false. People with Ovotesticular syndrome exist, that might be a rare DSD but it still happens.
Just because a process is antagonistic on a cellular level does not mean the entire organism directly and perfectly progresses down a single clear path.
If sex is binary, it's because people have deemed it to be so. And which category individuals are put into may be simple in the vast majority of cases, but for some it's a completely arbitrary decision by a doctor based on some very limited information.
Your original claim that everyone must be "either male or female" can only hold true for everyone if your definition of sex is what was ticked on the birth certificate. It does not and cannot encompass all the complexity of actual biology.
The process is antagonistic on a genetic/developmental level. There are people with OT-DSD on Twitter/X: you can ask, and they’ll tell you that despite having streak gonads, only one type is functional. It’s observed repeatedly. You cannot be both. Humans aren’t hermaphrodites.
I don’t define it by “what was ticked on the birth certificate” - though in 99.998% of cases that’s correct too.
I am a student getting by b. Sc. (i also am employed at a reptile zoo and have worked with intersex animals) and I absolutely can assure you that what you are saying is pseudoscientific nonsense. Sex is not one thing, but a collection of characteristics, most of which exist on trimodal spectrums (not solely between male and female, but also between differentiated and undifferentiated). It is absolutely possible to have a mixed sex phenotype, as many sex characteristics have disparate developmental triggers (although the majority of male sex characteristics in utero develop due to cell organization as a result of androgen exposure).
As I mentioned in my previous comment, you mentioned a person with CAIS, and as someone with CAIS will invariable be assigned female at birth, your implication that their “biological sex” is somehow different (ie, not female) doesn’t make any sense. There is even debate as to whether CAIS can be considered an intersex condition because most people with it do not exhibit a mixed phenotype. Partial androgen incensitivity can result in a sexually ambiguous phenotype, but complete androgen insensitivity often results in an entirely female phenotype with no male phenotypic sex characteristics whatsoever.
A sex is a reproductive role based around a gamete type. As such, it is discrete and the count of sexes is exactly two as only teo types of gamete have ever evolved in anisogamic reproduction.
Huh? How is biology sociological or “ideological”?
Your definition of sex is correct (although it’s an anatomic role, not reproductive; an organism does not need to have a reproductive role to have a sex, worker bees for example).
There are at least 5 dioecious sexes, even with gamates types, as several dioecious species have distinct sexes that produce both types of gamates and can self fertilize, or reproduce sexually with either males, females or both.
In humans, ie mammals, there are two - count them! - sexes, and nobody ever has the reproductive system for both sexes. Sex is a *reproductive* role, because it is defined by organisation around gametes. Someone with CAIS *looks* female, yes. But they have testes, not ovaries. Guess what! That means they are, in reproductive terms, male. Their appearance is female and they will be treated by society - including most sports - as female, which is as it should be, because they haven't gone through male puberty. But because those gonads can become cancerous, as the document I linked to points out, their medical treatment needs to know their correct reproductive sex. The "pseudoscientific nonsense" part is thinking that exogenous hormones magically change someone's sex. Taking oestrogen won't produce ovaries in a male. Testosterone doesn't create testes in a female. And the British legal system, in Betteridge v Betteridge, recognises the basis and immutability of this.
Please stop using "intersex". It informs nobody about the reality, which is a developmental divergence from the normal process, but still only down one of the two developmental paths. I've seen none of this "debate" you describe, so if you have some persuasive links on the topic, please provide them.
I love that you didn’t bother to read the signatories there, which includes Maths PhDs, not biologists. None of them can give a coherent explanation of how mutually antagonistic development paths can lead to anything but one or the other sex either.
So if sex is a spectrum, how do you gather and analyse discrimination statistics? How do you present medical data and trends for sex-coded illnesses?
How do you allocate facilities where historically it's been accepted that sex is binary? Where to people go who have decided they are non-binary? How does the law deal with this? Does it just step back and allow self determination in all cases?
"how do you gather and analyse discrimination statistics"
How about the same way it works in other cases? A persons race/ethnicity doesn't always fit perfectly into fixed categories, but it can do for most and that's enough to gather meaningful data. It doesn't prevent anyone gathering statistics on racism.
"How do you present medical data and trends for sex-coded illnesses"
Most people are clearly at one end or the other of that spectrum. Why can't it work the same as always, while still recognising there's a tiny minority that don't strongly fit into those categories. In some cases it might be necessary to be specific about what sexual characteristics are involved in the data.
"Where [do] people go who have decided they are non-binary"
How about where ever they feel comfortable?
"How does the law deal with this?"
Hopefully by protecting peoples fundamental rights and safety.
"Does it just step back and allow self determination in all cases?"
Why not? It seems to be working ok in many other countries
Do you accept my teenage daughter (a female) should be able to use school changing rooms and public swimming showers etc free from males being present?
Fairly and equitably. Simple. Of course if you are suggesting that the people should be 'fit for purpose' for the law, rather than the law being made to fit needs of the people, you raise an interesting sociological question.
Your comments on intersex people are frankly bizarre and quite ridiculously pseudoscientific. The term intersex is in no way outmoded, is still regularly used in medicine and has not in any way been abandoned as you falsely claim, and is not synonymous with DSD’s. A DSD is a difference in sexual development, while an intersex condition specifically is anyone with a mixed sex phenotype, which is to say, cannot be categorized as one sex or another based on phenotype. I for example have a very common DSD, but I am not intersex, because I don’t have a mixed phenotype. The example you gave is also nonsensical, as a person with CAIS will almost invariably be assigned female (their bodies physically cannot respond to androgens and masculinize, even if they have a male genotype). You seem to be implying that the female assignment would be wrong, which is frankly quite laughable.
I think your comment outlines why this ruling has caused so much controversy. The mainstreaming of frankly some of the strangest and most bizarre pseudoscientific ideas has muddied the waters of this “debate” to the point where legal rulings based on scientific consensus become impossible. The pro-trans side has their own pseudoscientific beliefs as well, but you’ve illustrated the pseudoscientific religious assertions of the gender critical side too. The reality is, members of the gender critical ideology dislike the medical term intersex because it correctly implies the collective and spectral nature of sex.
As someone else pointed out, "intersex" was determined to be "outmoded, misleading and perjorative" in 2005, and replaced with "difference of sex development" as an umbrella term. The "mixed sex phenotype" description isn't one I've ever seen before, but I'd argue it's meaningless and misleading. I can see why organisations and people who have been using it in the 20th century would carry on doing so, but our understanding is clearer now of what is happening, and we should move with the times.
I didn't bring up "intersex" - the pseudoscientific people at the Good Law Project, who seem unaware of medical developments over the past 20 years, did. I, and others, pointed out that the GLP's signatory will in fact be male or female, because we all are. "Sex" is not a spectrum; phenotypes are, but that's a very different thing. You won't find someone who's 80% female, 20% male: what would that imply? That they produce ova some of the time, sperm the rest? We can see that's ridiculous. Sex is fixed, and binary.
As was also pointed out, this is false. The term intersex is neither outmoded, misleading or “pejorative” (the last assertion is especially bizarre as intersex people refer to themselves as intersex, while only religious activists who are bigoted against intersex people take issue with the term), and the term intersex is not synonymous with differences in sexual development. I myself have a very common DSD; I am not intersex.
You can’t argue it’s meaningless or misleading, as it exists objectively.
Absolutely, our understanding is clearer now than ever, and we should move with the times. That includes abandoning the pseudoscientific assertions of the gender critical religious movement.
There is no such term as “strict biological sex” (that’s religious terminology you just invented; it doesn’t exist in medicine), and people with CAIS are invariably assigned female at birth. So far as I am aware, it is not even physically possible for someone with CAIS to have a visibly mixed phenotype, and therefore said person could not ever be assigned male.
The Good Law Project, from what I can tell, is a legal group, not a medical group. I am not speaking from a legal perspective as they are, nor from a religious perspective as you are. I am speaking solely from a scientific and medical perspective.
Sex is absolutely a spectrum, and nearly every aspect of sex is phenotypic. You absolutely can find someone who is 80% female and 20% male (although we don’t measure by percentage) not only with regards to sex characteristics as a whole, but even the individual sex characteristics themselves lying on a spectrum between male and female. Thats how sex works. It’s just biology.
Your last 2 sentences are very revealing, as they prove without a shadow of a doubt that you are arguing from a religious perspective. The gender critical religion defines sex as supernatural ordination pertaining to gamete production. So if a woman cannot produce large gametes, she is not female (according to the dogma; though GC activists will move the goal posts and say that actual production of said gametes is not necessary for sex assignment— which is true though completely undermines their religious beliefs.
Sex is spectral, and highly variable, and not at all fixed. That is very obvious to anyone with basic education in the field of biology, and not an adherent to a new age religious movement which takes great issue with biological reality (and in this respect, I refer to both gender critical religious activists and pro-trans political activists, as both groups hold pseudoscientific views; science is objective and has no bias).
If I strip out the parts where you're trying to be insulting, there isn't a lot left. Biological sex is defined in biology and British law. The question is not how people with CAIS are "assigned", but what sex they actually are.
Re gametes, you misunderstand - perhaps intentionally - the difference between "organisation" and "production". A car doesn't have to move for us to know it's a car: we recognise its organisation as such.
If sex is a spectrum, explain how we'd recognise someone who is 80% male and 20% female. You say it's a spectrum, which means there are intermediate points on it. (It could be like an absorption spectrum with specific lines, or a smooth one like visible light.) How do we measure the 20% femaleness of this person? What precisely is the measure of maleness that lets us know they're 80% male, and not - say - 75% male and 25% female? You've made the claim of a spectrum. Back it up with precise descriptions. Persuade me, and all the readers here.
I was not attempting to insult you. If you got that impression, I apologize. Tone is difficult to express through delayed written replies.
Sex is solely a biological term. British law doesn’t define it. No law does. Not even scientific law, as it’s a categorization schema, not a physical absolute.
Not at all, I assure you I didn’t misunderstand. You’re delving into the realm of sociology here which I am not educated in. I’m a biology student. We don’t debate terms like “organization v. production” in biology. There’s not such a thing. Pre-ordaining any divine purpose on a characteristic is both a deterministic fallacy, as well as an ecological fallacy. Your way of thinking is very common among those who argue in favour of creationism and intelligent design. Biology is random and has no intended purpose. That’s why biology (and more specifically evolution) is nicknamed “the blind watchmaker”.
As for your last paragraph. We could hypothetically take an intersex person, measure every single one of their sex characteristics, and not only come up with a percentage of how many lean male vs. female (and also differentiated vs undifferentiated), we could also take each individual sex characteristic, and compare it to the phenotypical averages of males and females, and chart it on a graph. In both instances, you would land on a point in between male and female, and could very easily come up with a percentage.
This is all completely possible, we just don’t measure sex this way because it doesn’t serve much of a purpose.
Not at all outdated and certainly not perjorative. The only people who find it perjoritive are gender critical religious activists, as the term implies their religious beliefs are unscientific. Intersex people use the term themselves, as do physicians. Their opinions are the only ones that matter.
Literally a quote from the published ‘educational activity’ - Terminology, such as hermaphrodite, pseudo-hermaphrodite, and intersex, are considered to be pejorative and dated.
I understand the general argument re use of facilities what I cannot understand is why on earth anyone would care! I know this is superficial but so are the various red herrings and nonsense presented under the heading of culture wars! Go to Iran that is a war. Known in the region as 'The keep Bibi out of jail war!'
Because some people - specifically, and often, women who have suffered sexual assault - care. They express that view. There are lots of things I care about that you don’t ,and vice-versa. That doesn’t give you the right to override my feelings about what I care about, nor vice-versa. There are parents of girls who care. It seems very unimaginative to say “this doesn’t affect me directly so it doesn’t matter.”
Lord Sumption and Lady Hale are retired. Neither of them ever practised in equalities legislation and it is they who have misinterpreted the FWS judgment; not the other way around. The judges in the Supreme Court who actually heard the case were unanimous, therefore Baroness Falkner and the EHRC are entirely correct to say that there is nothing to discuss in terms of the judgment. Your assertion to the contrary is nonsense.
Your offensive and frankly sexist attack on Baroness Falkner is disgraceful and flies in the face of what everyone else saw and heard, namely an utterly ill-informed, negligent and embarrassing performance by the majority of the WESC. It was abundantly clear that they hadn't bothered to read the judgment, had no idea what the FWS case was about and also didn't understand what the Equality Act or the Gender Recognition Act or the Workplace Regulations actually say.
If you want genuinely informed comment I suggest you read Dr Michael Foran, or Naomi Cunningham KC, or Peter Daly.
The Good Law Project has an abysmal litigation record, the 'swagger' you refer to is their stock in trade and means less than nothing.
The question before them was: does it lead to a contradiction if we interpret the GRA to carry over into the EA, ie "woman" in the EA also means "male with a GRC"? They decided that it did create a contradiction and that therefore that interpretation could not be allowed. This doesn't require a background in equalities law - although some of those arguing the case are very experienced in that field. If your argument is "The Supreme Court should not rule on cases where at least one of its judges is incredibly experienced in this space", then you might as well dissolve the court and the whole legal system. Judges are there to hear the arguments and rule on them.
Your complaint is on a level with those who say "but the SC didn't hear from trans people!" It's not the small claims court. It's not a sentencing hearing asking for impact statements. It heard from the Scottish government and Amnesty, who put that side of the argument. They didn't prevail. That's the legal system.
You read a lot into two lines. It’s not a complaint. I was responding to someone who said that Hale and Sumption have no equalities background, by implication dismissing their views as a result.
Lady Simler practised in employment law, which is a field in which issues of discrimination and equalities law frequently arise, and has had a role in promoting equality amongst her other professional and judicial responsibilities in the course of her career
I wouldn’t disregard either of their views, but I think the point is both have been reported, probably quite selectively reported, in commentary for a general audience on the decision and its reception by interested organisations and individuals. Such commentary, even from a serving or retired judge of the UKSC, is qualitatively different from the writing of the unanimous judgment itself
Thanks, although Hale also did a lot in respect of the latter too. I just think it misunderstands the role of SC judges to pick and choose whether their views are relevant based on background.
Hale was an academic lawyer, Law Commissioner, and then a judge in the Family Division. She would have seen a wider range of work as a judge in the Court of Appeal and Supreme Court but certainly not had the same breadth of experience of equalities law as Simler. An individual judge’s subject matter experience isn’t irrelevant but it isn’t the only criterion for evaluating their decisions either
Well that was rather my point. The suggestion that Hale and Sumption's views on this can be disregarded doesn't hold weight. These judges will have dealt with issues of discrimination and equalities many, many times.
lazy interpretation that, like most of the commentary on the ruling, fixates entirely on the feelings of cross-dressing men and completely ignores the rights and needs of other minorities.
From the ruling: “Including men [with or without a certificate] in lesbian associations would mean a loss of autonomy and dignity for lesbians".
Obviously, this loss of autonomy and dignity for lesbians - already in evidence in places like Tasmania, where it’s illegal for them to gather without men present - is of absolutely no concern to you or any of the many trans-obsessed commentators completely incapable of grasping that other people have rights, too. It’s a total irrelevance, not even worth mentioning. The many women (and some men) fired, banned, suspended from political parties and even physically attacked for defending their legally-protected rights pale into inconsequence next to the feelings of the men pretending to be women, who have suddenly become the most marginalised group in society’ (disabled and blind people would like a word). Not even the trans activists’ piss protest which brought Falkner close to tears registers as remotely significant.
If ‘trans women’ really were women, you wouldn’t give a fuck about them - the only reason you focus entirely on them is because you know they’re men, and men must get what they want. The fact is that to be a trans woman, you have to be male - it’s literally the prerequisite. Your mother can’t be a trans woman. Which means you think there is such a thing as male women. It would be laughable if this mass delusion hadn’t had such a terrible impact.
Trans activists, most notably Stonewall, spent a decade systematically and shamelessly lying about the law, trampling over women’s rights, gay rights, as well as freedom of belief, speech and assembly, pushing for self ID which is not the law and never has been. The ruling reasserted reality and clarified that other rights matter too. For whatever reason that drives you nuts.
As for the Good Law Project, I assume you simply haven’t noticed their hilariously bad recent record. And mentioning former Supreme Court judges - so what? They were no more involved in the ruling than I was.
Shame on you for such a narrow minded, blinkered piece.
Your comment reflects several factual errors, misinterpretations of law.
1. Misrepresenting Trans Women
Referring to trans women as “cross-dressing men” or “men pretending to be women” is both inaccurate and dehumanising. UK law recognises trans women, particularly those with a Gender Recognition Certificate as legally female under the Gender Recognition Act 2004.
Even without a GRC, trans people are explicitly protected under the Equality Act 2010, which covers the characteristic of gender reassignment (Equality and Human Rights Commission [EHRC], 2022). Denying their identity contradicts both legal and medical consensus (Hines, 2013; Whittle et al., 2007).
2. Misquotation of the Ruling
You claimed that the ruling states:
“Including men [with or without a certificate] in lesbian associations would mean a loss of autonomy and dignity for lesbians.”
This is not a quote from For Women Scotland v. Scottish Ministers or any UK Supreme Court ruling. No such wording appears in the judgment. Presenting fabricated quotes as legal precedent weakens your position and misleads others.
3. False Claim About Tasmania
Your reference to Tasmania allegedly making it “illegal for [lesbians] to gather without men present” is entirely false. Tasmania’s anti-discrimination laws prevent exclusion based on gender identity or sexual orientation, but they do not criminalise single-sex lesbian gatherings (Tasmanian Anti-Discrimination Act 1998). This is a myth that has been repeatedly debunked.
4. Mischaracterising the Impact on Others
You imply that trans women are receiving special treatment at the expense of other minorities. In reality, trans people, especially trans women, experience some of the highest rates of discrimination, violence, and economic marginalisation in the UK (Stonewall, 2020).
Suggesting their visibility or protection comes at the “expense” of others frames equality as a zero-sum game, which it is not (Pearce, 2018).
5. Misuse of the Term “Male Women”
Your assertion that “to be a trans woman, you have to be male” imposes a binary biological essentialism that is rejected in both law and social science. The idea of “male women” is a contradiction only if you reject the very concept of gender identity, something that both legislation and medical authorities do not (World Health Organization, 2019).
6. Employment and Legal Protection Misunderstood
You list people being “fired, banned, suspended…” for expressing gender-critical views. While beliefs are protected (Forstater v CGD Europe, 2021), behaviour, including harassment or misgendering, is not. Belief does not give someone a licence to cause harm. Rights come with responsibilities, including upholding the dignity of others.
7. Dismissing Harassment as “Not Significant”
Your remark on the protest that brought Falkner to tears is an example of minimising others’ emotional harm while amplifying outrage over perceived insults. This double standard is not a compelling moral argument.
8. Claims About Stonewall
Accusing Stonewall of “lying about the law” and “trampling over rights” is an unsubstantiated claim. Stonewall’s advocacy has been consistent: they support legal reform, not legal subversion. There is no evidence of systemic deception. Disagreeing with a lobbying position is not evidence of dishonesty.
9. Misogyny Framed as Feminism
There is an undercurrent in your comment that reasserts male dominance as the root of all trans identities—l, an ironic claim, considering trans women face substantial structural and social disempowerment. Feminism that excludes trans women while claiming to protect cis women’s rights is exclusionary and harmful. Lesbian trans women exist. They are not men intruding into lesbian spaces; they are part of those communities (Pearce, 2018).
10. Tone and Dismissiveness
Your tone, describing trans people as part of a “mass delusion,” ridiculing others for showing empathy, and asserting “you wouldn’t give a fuck about them” is aggressive and unproductive. It’s difficult to view such language as anything but an attempt to shut down discussion rather than contribute meaningfully.
I’m open to discussions on rights, law, and inclusion. But those discussions need to be based on facts, not fear.
Certainly not made up facts, as you have.
They should reflect the reality of people’s lived experiences and legal protections, not weaponised misinterpretations or imagined losses of autonomy. Trans rights are human rights. Supporting them does not diminish the rights of others, it reinforces the principle that everyone deserves dignity, safety, and freedom.
I'll leave you with one thought. If you had a transgender daughter are you happy to force then into a male toilet, if alternatives are not available, with your drunken mates in a pub in a Saturday night?
If you are you are a different parent than me.
Still you do belong to the single largest group who assault women, cis men, and assault transgender women at 3.5x times more than biological women. So I hear your anger and concern.
Your appeals to authority by quoting the likes of Hines and Whittle fall more than flat. The Supreme Court carefully weighed the human rights of ALL and purposes of the Equality Act in coming to their conclusions.
Every person has the rights of the sex they actually are. Those who identify as trans have additional protections in matters such as employment discrimination etc. Those with a GRC have right to lawfully misrepresent their sex for certain purposes in limited arrangements with state, but not where they impact on others’ rights. A male with a GRC is a male with a GRC.
But that is 'factually' untrue isn't it... however much you want it to be the case ... it expresses a desire to protect an ontological position than enter in an honest discussion. One only hopes that those friends, colleagues or even your children and relatives with children who are transgender or hiding their transgender consider your views in a supportive fashion, rather a denial or thier existence. That's social media for you.. everyone can read it. To your original point ... The Gender Recognition Act (GRA) 2004 states that a person's change of gender is for "all purposes" their acquired gender with only specific exceptions outlined in the GRA itself and other legislation, notably the Equality Act (EA) 2010. So outside of the EqA the law is clear ... 'for all purposes a woman'. I pass no comment on whether this should be the case, just that your comment is therefore and respectfully legally and factually illiterate.
You talk about gay rights and freedom of association, but it’s the EHRC guidance as supported by gender critical activists which seek to undermine and prevent gay and lesbians associating as they have done for years now.
Whilst it’s true that “the Supreme Court ruled on one issue: the definition of the words 'man' and 'woman' in the Equality Act”, to arrive at that ruling it had to consider how the law should be interpreted where there is an argument as to what the meaning of sex in a statute is.
In doing so it set out the test to be applied in such situations so it is not the case that “for all other legislation, a trans woman is a woman” rather it will depend on the wording and purpose of each individual statute.
[This is only the case for GRC holders, non-GRC holding transwomen will always be men as FWS makes clear.]
This test can be found in para 156 of the judgment
“Section 9(1) applies unless section 9(3) applies. Section 9(3) will obviously apply where the GRA 2004 or subsequent enactment says so expressly. But express disapplication of section 9(1) is not necessary as we have explained. Section 9(3) will also apply where the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1)”
[N.b section 9(1) contains the rule that a GRC changes the holders sex for all legal purposes.]
If the question of the meaning of sex in the workplace regs gets to court, this is the test that will be applied.
In arriving at it’s decision in FWS the Supreme Court considered the reasoning for the single sex exemptions and concluded that they are “directed at maintaining the availability of separate or single spaces or services for women…that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes”.
The exact same considerations would apply were a court asked to rule on the meaning of sex in the 1992 Workplaces regs (they specifically reference the need for single sex changing rooms for “propriety”) so it is extremely unlikely it would reach a different decision than the Supreme Court.
This means that while the hypothetical employer following the EHRC interim update in the scenario you envisage might well face a claim, that claim would almost certainly fail. Conversely, should a woman bring a claim against an employer who was not following the guidance but allowing transwomen to use a women’s single sex toilet or changing rooms, that claim would be likely to succeed.
The Good Law Project's legal challenge may have an “unmistakable legal swagger” but it understandably sets out only the arguments for its case not those against it.
'Legal swagger'. Oh, dear. Has Ian ever met any lawyers?
Has he not noticed that *sounding confident and definite* is the way they all present. It's a professional stock in trade. It has no bearing on how likely they are to win a case.
In reality, Jolyon Maugham and the GLP have been very largely unsuccessful in their recent cases.
Last week a High Court judge took a look at the Good Law Project’s “legal swagger” at a hearing listed to decide whether or not their application should have permission for judicial review. It appears from accounts posted to social media by people present at the hearing that the judge, Mr Justice Swift, was not impressed by the primary case as articulated to him, directed some re-drafting of it, and adjourned the decision on both permission and (if granted) substantive judicial review to a two day “rolled up” hearing in November
You may find this helpful; it is written by Michael Foran:
"Since the For Women Scotland decision some have argued that trans inclusive policies are lawful and that employers and service providers have discretion over what services to provide and on what basis. In this post, I set out the law on this issue:"
Not sure Kishwer Falkner is "conservative" or "Spectator Online"; she was a Liberal Democrat for more than 30 years, stood for Parliament for them and was certainly a Liberal Democrat peer when she was my committee chair.
When you refer to the Gender Recognition Act 2004, you refer to 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)"
However, you very conveniently ignore section 9.3:
"Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation."
Section 9.3 means that section 9.1 is able to be disapplied in situations where the application of 9.1 makes the law incoherent or unworkable in relation to other enactments, for example the Workplace Regulations 1992 which covers the provision of toilets, washing and changing facilities in the workplace [sections 20, 21, 23 and 24].
This is explained in para 156 of the Supreme Court judgment.
Boy have you gone down the TRA rabbit-hole, Ian. You are aware of the Good Law Project’s abysmal record on this topic, and Jolyon’s status or lack of it among actual
legal experts in the relevant area? Apparently not. Few excuses left in 2025 for not knowing about this stuff.
this is an excellent summation of wednesdays charades , falkner was indeed running down the clock because what is happening is indeed going to cause chaos out in the real world , now the EHRC is insisting on segregation ... on a minority who have never needed segregating , the people proferring all these changes have worked hand in hand with tufton street thinktanks and christian fundamentalist finance has flowed through the "charities" set up to lobby parliament
for disclosure i am a trans woman field service engineer working in lincolnshire , i came out to work 3 years ago and we sat and worked a way to accommodate me because my employers are good people and i am a good engineer ... indeed i am even better now as the 2 years since i fully came out and started working publically in the pubs and clubs of lincs have shown a better balanced me and a happier more sensitive me so i look after 100 pubs and clubs and i live in my car it seems and toilet facilities are not what the london metropolitan elite are used to , many pubs do not have disabled facilities let alone room or finance to set up a third space for me or the few trans women brave enough to be out in reality ... and why should they have to fork out for one for little old me ... i simply want to go out , do my job and come home , no mess no fuss
i have already been almost simultaneously on the right side and the wrong side of the supreme courts ruling , at a site in skegness i received a call to repair a note mechanism and i was in hull , that is a near 2 hour drive and the day was late on with plenty else to do work wise so i headed down and arrived at the site , i was bursting for the loo on arrival and on entry i spoke to the landlady and mentioned the toilets "is it ok and which loo should i use" , trish the landlady instantly said "the ladies tori the ladies" so i tried to see where they were but they were hidden down a side partition behind the bar and i had never been down there , the sites disabled loo was out of order with a hastily made sign and is the normal option i use if i have to go to the loo on any site because it is the path of least resistance or agitation , anyway as i looked for the ladies i had to pass 3 males by the pool tables and one of these lads spotted me and "made" me
this one tiny thing instantly changed the whole dynamic because as i passed them i could hear whispers and a muttered "what the fuck" so i knew things could get heated ... you get a feeling for this when it is your lived reality , in panic i headed for the nearest loos i could see which were the males toilets , so i ran in there , did my business , came out and repaired the machine and 20 minutes later all was done and i departed ... the males stayed at the pool table , i was safely by the bar to repair the machine a good distance away
two days later i received a call off my colleague that a complaint had been made to the landlord about me using the male toilets so work had to investigate and follow up , after a weeks checking up i discussed the event with my boss and explained everything to him , following this i am now "barred" from the site according to the landlord because in his words he cannot guarantee my safety there , this happened the day before the supreme court ruling and when i spoke to my boss i said to him "this could all change tomorrow" and told him what was happening aka SC ruling and indeed it did change the next day , so in 2 days i went from being wrong to being right but in the end no one has won , that site i refuse to go near and lost a friend through this
and on a final note charles ... you really need to come out and explore lincolnshire with me as a working trans woman , most of that filler written down you would discard within a days work out here because reality is a different kettle of fish , i recognise you as a journalist but those words i do not recognise any real acknowledgement of the problems being caused ... it is simply words without feeling or lived reality , sorry but you can write all you want but until you walk a mile in my shoes you know little to nothing apart from all those encyclopaedic tomes you have clearly read
Sorry to hear about your experience Tori. From your recounting though it doesn’t sound as though the SC ruling did, or any EHRC guidance would, make any difference to the situation. The problem is the attitudes of people - particularly men. I don’t know what you think the answer is there.
thank you and exactly ......... there is no real answer , the real problem is how is the british state going to rid itself of the think tanks and appointments made to pursue a single purpose regardless of the harms caused along the way , the EHRC especially being used specifically with appointments like falkner by badenoch , i am no activist or twitter trans btw simply a citizen who after nearly dying to a heart attack then set off correcting my life to a path i feel is right , the SC ruling in effect as you can see created a paradox , the EHRC i am part way through filling in because they need to see my words ... of course it will all be ignored , my offer however stands charles i would love to speak with a journalist because the one thing missing everywhere is trans voices , everyones deciding for us without experiencing what we go through x
i cannot judge everyone on their education or lack of , simply do my best in the situation , men being men as we see with the current calls socially of how do we improve men so their attitudes are better or so they stop raping or whatever social justice calls are being made at that time is not something i can do ... because "hey that ones one of them thar trannies" and society isnt doing any better at ridding our men of these legacy problems for me or for the women of this country is it
but the EHRC is a story the newspapers will print when they finally realise the wholesale capture of the equalities commission and how it will affect others if the problems simply get ignored , its present path of throw us to the dogs is not one i am aiming wrong with , men in the street are not my enemy but it seems i am the EHRC's enemy
no the ruling would make zero difference due to it happening a week before the ruling however ... what happened after this ruling passed however highlights that this is only going to become more commonplace for me and for women because they will also be judged against appearances , my partner is way more masculine than me but she's a cis lass ... what happens then ? knicker checks ? whoever tries that with my Mandy moo will deserve the black eye she gives them ... and I'm sorry but that is the EHRC own insistence creating these issues so no i will not give that corrupted organisation the free pass you are giving them , remember the supreme court intimated this was not to deny us any rights or protections ... thats falkner doing that , all i have done is show that what you are hinting is black and white is actually many shades of grey and more varied than you seem able to imagine , i showed one permutation
Good article. The whole toilet thing seems to be reminiscent of the segregation in toilets for different races in certain countries over the years. It's a way of controlling people who are deemed 'less than'.
I seem to recall something I read about a while ago about the Arpatheid Government in South Africa having legislation which limited the number of toilets in areas where black people lived to make it harder for black people to exist. Please do correct me if I misremembered this.
I believe that during the early days of public toilets in English cities, I know these were almost all men only, so this meant that women were not as free to travel as far from home.
When my young daughter uses a public toilet I’d like the safety of knowing there aren’t any males in there with her, however they identify. And if there are, that they’re not supposed to be there and I can challenge them. That you’d compare this simple safeguarding principle which absolutely nobody had a problem with until a few years ago to racial segregation is one of the most unhinged things I’ve ever heard.
If the Supreme Court thinks it, you’re not going to thrive by disagreeing. I wonder how many of the people so angry about this ruling were delighted by the SC ruling on prorogation or the 2017 Brexit ruling. Are they only right when they agree with you?
Not actually interested in reading Ian’s piece then, Adam? Perhaps you’ve not properly considered your motivation for commenting here - why not do that now?
I appreciate that some of the commentators may not agree with me. I wasn't going to respond but felt it was important to point out some fundamental issues with the arguments about 'toilet bans' being about women's safety.
I have experienced sexual violence and the danger was never in public toilets. Sexual predators don't need to go to the trouble of pretending to be a woman and accessing women's toilets (in fact a small minority of sexual predators are female). Sexual predators are in offices, classrooms, youth clubs, churches, temples and even in our own homes. The real safety issues for women (and men as they can also be victims) are pretty much anywhere else.
Please, if you care about women's safety please actually take concrete action on the actual threats to womens (and mens) safety.
The flawed women's safety argument just allows everyone to look away from the real issues around sexual violence and turn transgender individuals into a monolithic scapegoat.
But that is undermined by the very arguments trans activists make for why TW MUST use women's toilets. If toilets are just for doing your business, why can't TW use the male toilets?
I've also yet to hear any argument for why some men (TW) should be exempt from the safeguards we have around all men with regards to women's spaces.
The reasons for women's/men's separate facilities are for a mixture of dignity, safety, privacy. That's enough. Make an argument that says we should abolish those (TWAW isnt one)
This article is a miasma of misunderstanding and misinformation. It’s dispiriting to see Ian Dunt committing the same offences against accurate and fact based reporting that he has built a career on prosecuting.
Dunt writes:
“Falkner's … point was that none of this was her fault. She had not come up with the Supreme Court judgement [sic]. Her duty was simply to communicate what the judgement [sic] meant legally. Once again she was told of trans women put into extraordinary difficulty - in one case having to tell their employer of 30 years they were trans. ‘I think we have a slight danger here of shooting the messenger,’ she said. ‘The judgement [sic] was one delivered by the Supreme Court and I suggest you call the five justices in front of you and challenge them on why they arrived at the decisions they've arrived at.’
[This was] flatly wrong and highly misleading.”
In fact, it was neither wrong nor misleading. The EHRC cannot issue any guidance that deviates from the Judgment. The EHRC has no authority to do so. Parliament writes the law and the courts interpret it. The EHRC cannot substitute a different interpretation of the law than that of the Supreme Court.
Similarly, Dunt writes:
“…the EHRC had again banned any discussion of the legal position. ‘The Supreme Court made the legal position on the definition of sex clear,’ Kirkpatrick wrote, ‘so we are not proposing to discuss views on the judgment or the decision-making process of the Supreme Court during this Q&A session.’”
Kirkpartick’s statement here is nothing more than an anodyne summary of the facts of the matter. In the context of having to issue guidance on the decision, with recess approaching, it would be extraordinary for the EHRC to hold discussions about shortcomings in the Judgment: there would be literally no purpose in doing so. It hasn’t banned “any discussion of the legal position”, it has made clear that it is not the EHRC’s function to hold such a discussion, which would be completely redundant.
As to the Judgment itself, Dunt writes:
“The Supreme Court ruled on one issue: the definition of the words 'man' and 'woman' in the Equality Act. They [sic] decided that man meant biological man and women meant biological woman. In other words, a trans man is a woman and a trans woman is a man.
But this is only the case for that one piece of legislation. In every other piece of legislation, a trans man is still a man and a trans woman is still a woman. This is because the Gender Recognition Act states that someone with a gender recognition certificate has changed their sex ‘for all purposes’.”
This is wrong. “For all purposes” is s.9(1) GRA. Section 9(3) then makes 9(1) “subject to provision made by this Act or any other enactment or any subordinate legislation.” In other words, it’s “for all purposes”, except when it is not. The point of the Judgment is that the EqA is such a piece of other legislation.
And the case itself arose from the definition of “woman” used in an other “other piece of legislation” – the Gender Representation on Public Boards (Scotland) Act 2018. The definition is not and cannot be restrained solely to the EqA.
So when Dunt writes “The basic situation we’re in now is therefore as follows: For the Equality Act, a trans woman is a man. But for all other legislation, a trans woman is a woman. Yes, it is confusing, but this is where we are”, he is wrong: in all legislation in which questions of discrimination on the basis of sex arises, a trans woman will be a man.
This is exemplified by his comments on toilets:
“The problem is that the Workplace Regulations 1992 is a completely different piece of legislation to the Equality Act. And therefore the words 'man' and 'woman' do not refer exclusively to biological sex. They come under powers in the Gender Recognition Act and include trans people in whatever their adopted gender is. This is a very significant problem for the EHRC position, because it itself recognises that the Supreme Court ruling refers only to the Equality Act.”
The 1992 regs require sex-segregated toilets (reg 20), washing facilities (reg 21) and changing facilities (reg 24). They have to apply the Equality Act 2010 definitions of “sex”, “woman” and “man” because a breach of the regs will be litigated by a claim using the EqA. See for example the ongoing case of Peggie v Fife Health Board, or the Darlington Nurses case, both of which rely on the 1992 regs. You won’t find a lawyer that doesn’t expect those women to win their cases (if the employers don’t fold before judgment is issued).
Or Earl Shilton TC v Miller [2023] EAT 5. The lawyers in that case didn’t even have to rely on the 1992 regs, but the Judge did in his judgment (para 32).
Dunt also doesn’t understand the distinction between trans people with a GRC and those without. The Court didn’t have to expend much effort considering those without a GRC in its Judgment, because the law is non-controversial – “Their sex remains in law their birth sex” (para 11). The judgment was about trans people *with a GRC*. Yet Dunt’s commentary refers only to “trans people”, “trans men” and “trans women” without even recognising a possible distinction arising from a GRC.
Even those decrying the Judgment aren’t seeking to challenge this: trans activist barrister Robin White sees the corrective to the Judgment as an amendment to the EqA to define “woman” as including “a trans woman with a gender recognition certificate”: https://translucent.org.uk/clearing-up-the-mess-of-the-supreme-courts-trans-equality-ruling-an-easy-job-for-a-politician/. Even trans activists recognise that the law provides sex segregation regardless of a GRC, and even they only prescribe a change relevant to GRC holders.
Dunt’s position implies that the Judgment has changed the law. But there is no change in the law, only a restatement of what the law always was. The Interim Update informed businesses that they need to ensure sex segregated toilets are sex segregated. This is required by the Judgment. See for example at para 224 - the same reasoning will apply whenever any other legislation was considered by a court, because it would require reference to the EqA (and, now, the Court’s) definitions of sex. The EHRC’s interim update has no choice but to reflect this. Accusing the EHRC of “eradication” and “destruction” of rights is foolish.
Dunt’s fawns over the Good Law Project, which has lost nearly every case it has ever gone near. He should not rely on GLP’s website guff, and instead link to the actual papers in the case (and ask himself why GLP haven’t published these). Dunt calls the EHRC a “culture war campaign group”, a mislabelling of the EHRC, but is a factual description of the GLP. They’re not even a law firm – they are no longer regulated by the SRA, and Maugham is no longer regulated by the BSB - they’re lobbyists cosplaying as lawyers.
Dunt has misunderstood this issue from top to bottom. More damning for a journalist, he has missed the actual news line: an incorrect understanding of the law has permeated so comprehensively that when the law is (eventually) authoritatively stated, it elicits the kind of hyperbolic howl of disbelief exemplified by this article. The reasons for this include commentators gullibly taking activist lines at face value, and confidently (“with an unmistakeable legal swagger”) reporting them as fact.
Trans people have been lied to by their own campaign groups who have told them that they have rights that they in fact never held. To now discover the truth of that lie will obviously be hugely distressing for them. It is not possible to assuage that distress by telling more lies.
There is a job to be done to disperse the clouds of misinformation that settled over the past decade and more. The EHRC are belatedly setting about that job. They should be given assistance, not subjected to silly little hatchet jobs like Dunt’s.
This article is a miasma of misunderstanding and misinformation. It’s dispiriting to see Ian Dunt committing the same offences against accurate and fact based reporting that he has built a career on prosecuting.
Dunt writes:
“Falkner's … point was that none of this was her fault. She had not come up with the Supreme Court judgement [sic]. Her duty was simply to communicate what the judgement [sic] meant legally. Once again she was told of trans women put into extraordinary difficulty - in one case having to tell their employer of 30 years they were trans. ‘I think we have a slight danger here of shooting the messenger,’ she said. ‘The judgement [sic] was one delivered by the Supreme Court and I suggest you call the five justices in front of you and challenge them on why they arrived at the decisions they've arrived at.’
[This was] flatly wrong and highly misleading.”
In fact, it was neither wrong nor misleading. The EHRC cannot issue any guidance that deviates from the Judgment. The EHRC has no authority to do so. Parliament writes the law and the courts interpret it. The EHRC cannot substitute a different interpretation of the law than that of the Supreme Court.
Similarly, Dunt writes:
“…the EHRC had again banned any discussion of the legal position. ‘The Supreme Court made the legal position on the definition of sex clear,’ Kirkpatrick wrote, ‘so we are not proposing to discuss views on the judgment or the decision-making process of the Supreme Court during this Q&A session.’”
Kirkpartick’s statement here is nothing more than an anodyne summary of the facts of the matter. In the context of having to issue guidance on the decision, with recess approaching, it would be extraordinary for the EHRC to hold discussions about shortcomings in the Judgment: there would be literally no purpose in doing so. It hasn’t banned “any discussion of the legal position”, it has made clear that it is not the EHRC’s function to hold such a discussion, which would be completely redundant.
As to the Judgment itself, Dunt writes:
“The Supreme Court ruled on one issue: the definition of the words 'man' and 'woman' in the Equality Act. They [sic] decided that man meant biological man and women meant biological woman. In other words, a trans man is a woman and a trans woman is a man.
But this is only the case for that one piece of legislation. In every other piece of legislation, a trans man is still a man and a trans woman is still a woman. This is because the Gender Recognition Act states that someone with a gender recognition certificate has changed their sex ‘for all purposes’.”
This is wrong. “For all purposes” is s.9(1) GRA. Section 9(3) then makes 9(1) “subject to provision made by this Act or any other enactment or any subordinate legislation.” In other words, it’s “for all purposes”, except when it is not. The point of the Judgment is that the EqA is such a piece of other legislation.
And the case itself arose from the definition of “woman” used in an other “other piece of legislation” – the Gender Representation on Public Boards (Scotland) Act 2018. The definition is not and cannot be restrained solely to the EqA.
So when Dunt writes “The basic situation we’re in now is therefore as follows: For the Equality Act, a trans woman is a man. But for all other legislation, a trans woman is a woman. Yes, it is confusing, but this is where we are”, he is wrong: in all legislation in which questions of discrimination on the basis of sex arises, a trans woman will be a man.
This is exemplified by his comments on toilets:
“The problem is that the Workplace Regulations 1992 is a completely different piece of legislation to the Equality Act. And therefore the words 'man' and 'woman' do not refer exclusively to biological sex. They come under powers in the Gender Recognition Act and include trans people in whatever their adopted gender is. This is a very significant problem for the EHRC position, because it itself recognises that the Supreme Court ruling refers only to the Equality Act.”
The 1992 regs require sex-segregated toilets (reg 20), washing facilities (reg 21) and changing facilities (reg 24). They have to apply the Equality Act 2010 definitions of “sex”, “woman” and “man” because a breach of the regs will be litigated by a claim using the EqA. See for example the ongoing case of Peggie v Fife Health Board, or the Darlington Nurses case, both of which rely on the 1992 regs. You won’t find a lawyer that doesn’t expect those women to win their cases (if the employers don’t fold before judgment is issued).
Or Earl Shilton TC v Miller [2023] EAT 5. The lawyers in that case didn’t even have to rely on the 1992 regs, but the Judge did in his judgment (para 32).
Dunt also doesn’t understand the distinction between trans people with a GRC and those without. The Court didn’t have to expend much effort considering those without a GRC in its Judgment, because the law is non-controversial – “Their sex remains in law their birth sex” (para 11). The judgment was about trans people *with a GRC*. Yet Dunt’s commentary refers only to “trans people”, “trans men” and “trans women” without even recognising a possible distinction arising from a GRC.
Even those decrying the Judgment aren’t seeking to challenge this: trans activist barrister Robin White sees the corrective to the Judgment as an amendment to the EqA to define “woman” as including “a trans woman with a gender recognition certificate”: https://translucent.org.uk/clearing-up-the-mess-of-the-supreme-courts-trans-equality-ruling-an-easy-job-for-a-politician/. Even trans activists recognise that the law provides sex segregation regardless of a GRC, and even they only prescribe a change relevant to GRC holders.
Dunt’s position implies that the Judgment has changed the law. But there is no change in the law, only a restatement of what the law always was. The Interim Update informed businesses that they need to ensure sex segregated toilets are sex segregated. This is required by the Judgment. See for example at para 224 - the same reasoning will apply whenever any other legislation was considered by a court, because it would require reference to the EqA (and, now, the Court’s) definitions of sex. The EHRC’s interim update has no choice but to reflect this. Accusing the EHRC of “eradication” and “destruction” of rights is foolish.
Dunt’s fawns over the Good Law Project, which has lost nearly every case it has ever gone near. He should not rely on GLP’s website guff, and instead link to the actual papers in the case (and ask himself why GLP haven’t published these). Dunt calls the EHRC a “culture war campaign group”, a mislabelling of the EHRC, but is a factual description of the GLP. They’re not even a law firm – they are no longer regulated by the SRA, and Maugham is no longer regulated by the BSB - they’re lobbyists cosplaying as lawyers.
Dunt has misunderstood this issue from top to bottom. More damning for a journalist, he has missed the actual news line: an incorrect understanding of the law has permeated so comprehensively that when the law is (eventually) authoritatively stated, it elicits the kind of hyperbolic howl of disbelief exemplified by this article. The reasons for this include commentators gullibly taking activist lines at face value, and confidently (“with an unmistakeable legal swagger”) reporting them as fact.
Trans people have been lied to by their own campaign groups who have told them that they have rights that they in fact never held. To now discover the truth of that lie will obviously be hugely distressing for them. It is not possible to assuage that distress by telling more lies.
There is a job to be done to disperse the clouds of misinformation that settled over the past decade and more. The EHRC are belatedly setting about that job. They should be given assistance, not subjected to silly little hatchet jobs like Dunt’s.
Ian Dunt writes that "In every other piece of legislation, a trans man is still a man and a trans woman is still a woman. This is because the Gender Recognition Act states that someone with a gender recognition certificate has changed their sex "for all purposes"."
This is too simplistic. What the supreme court (SC) actually provides are conditions for disapplying the "for all purposes" clause which Ian Dunt references, more generally, in all sorts of other pieces of legislation over and above the Equality Act. These are conditions they argued are sufficient to motivate section 9(3) of the GRA, which allows the "for all purposes" clause of the GRA (section 9(1)) to be disabled in various circumstances.
Moreover, for these conditions to motivate section 9(3) in the case of a particular piece of legislation it is not necessary that the relevant piece of legislation explicitly notes that 9(3) is in operation, for the SC rejects the Scottish ministers argument that "only express wording or necessary implication applying that stringent test can disapply the rule in section 9(1)" (section 9(1) contains the "for all purposes clause"). In other words, it is not necessary for a given piece of legislation to assert expressly that the "for all purposes" clause does not apply for its purposes, in order that the "for all purposes" rule be legitimately disapplied. ("Section 9(3) will obviously apply where the GRA 2004 or subsequent enactment says so expressly. But express disapplication of section 9(1) is not necessary as we have explained.")
So when can the "for all purposes" clause (9(1) of the GRA) be disapplied, via section 9(3)? According to the SC,
“Section 9(3) will also apply where the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1)” [156].
Para 211 of the judgement then specifies that communal changing rooms and other places where "the autonomy or privacy and dignity of the two sexes" might be important (referencing at various places sanitary facilities (i.e, toilets)) are instances where allowing the "for all purposes" clause to govern the interpretation of sex would lead to a justified claim of incompatibility, incoherence or unworkability (of the kind which allows section 9(3) to apply, thereby limiting the "for all purposes" clause):
"In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment regardless of the possession of a GRC, in order to maintain the provision of single or
separate services for women and men as distinct groups in appropriate circumstances."[211]
The "for all purposes" clause most likely does not apply in the case of the Workplace Regulations 1992, for the basis for which it is permissible to have single sex sanitary facilities, along the lines of biological sex (the "autonomy or privacy and dignity of the two sexes") is just the same basis the SC provides for the permissibility of having single sex communal changing rooms (separate communal changing rooms for biological men and for biological women). It would therefore be exceedingly odd if section 9(3) were to operate in the one case (communal changing facilities) and not in the other (toilets in the workplace). Absent a strong argument for distinguishing these cases, Ian Dunt is simply mistaken to assert that
"The problem is that the Workplace Regulations 1992 is a completely different piece of legislation to the Equality Act. And therefore the words 'man' and 'woman' do not refer exclusively to biological sex.They come under powers in the Gender Recognition Act and include trans people in whatever their adopted gender is."
Moreover, it is important to emphasise that the default in UK law is that sex refers to biological sex. This is clear from the judgements Corbett v Corbett, Bellinger v Bellinger, A v Chief Constable of West Yorkshire Police, Croft v Royal Mail, Green v Secretary of State for Justice, For Women Scotland No.1.
This article is such as shame as I was a big fan on Ian's and an avid listener of Remainiacs / OGWN throughout Brexit and beyond. We can have different opinions about trans issues, but this article gets the law and the role of the EHRC totally wrong. Charles Arthur's covers much of what I have to say.
Ian is wrong to state that the Supreme Court judgement doesn't cover toilets. It does. The Equality Act is the piece of legislation that covers single sex spaces and services. The Workplace Regulations do stipulate that employers have to provide single sex toilets for a site of over 25 employees. The EA definitions of sex apply there.
Much of the rest of the article follows from this mistake. The EHRC can only provide guidance on how to follow the law, it can't set the law. If we were in the situation that Ian appears to think we are, then people could just say 'that's just guidance though, not the law'. But that's not so. It's because the EHRC can only provide guidance not consult on what the law should be that the consultation is limited in the way that Ian finds so frustrating. The law is clear, the consultation is only on how it should be explained.
Ian is wrong to suggest that organisations that follow the new guidance may find themselves in legal jeopardy. He suggest that this is due to the Workspace Regulations, which I've already covered above, and also due to the ECHR. This is also wrong and is the second major mistake in this article. Even if the ECHR were to find that the law as now clarified by the Supreme Court is wrong, it would still be the law. The ECtHR would tell the government to fix it, but the law would remain as it is until that was done. This is what happened in the Goodwin case, where the UK was found to be in breach of the ECHR by not providing a mechanism to change legal sex markers. The government fixed that by introducing the Gender Recognition Act.
Ian complains that, ‘Alasdair Henderson, who worked on a legal challenge against the NHS' use of puberty blockers’ was appointed to the EHRC. Says this makes him culturally right wing.
I’d say it made him concerned that vulnerable young people are not medicalised where there is no good evidence of benefit, and strong evidence of harm:
we know that 98% of kids in the GIDS trial of puberty blockers went on to cross-sex hormones - which we now know have enormous ill-health effects over time.
The young people and their parents who were failed by GIDS’ inadequate work were *denied the right to give/withhold informed consent* to the treatment they received. GIDS failed to do basic follow up and monitoring of outcomes. They started routine referrals for blockers when a trial on their use had barely begun. Then they withheld the results when the trial showed no benefit.
So I’d say that made Mr Henderson astute to the risks to young people and a good fit for a body which protects people’s rights.
There are lots of subtleties about the interaction of the EA and other legislation. For instance, the Workplace Regulations is informed by the EA: "The regulations ensure that the workplace meets the health, safety and welfare needs of the workforce, including people with disabilities. The definitions also include those coming under the definitions from The Equality Act 2010" (https://www.leia.co.uk/wp-content/uploads/2020/11/25-Workplace-Regulations-1992-issue-3.pdf - the Lift and Elevator Industry Association, just a random pick of interaction between the two bits of legislation). So if the WR talk, as they do, about providing single-sex facilities for females if there are more than 25 people on the site, then "females" means what the EA says. So I'm not so persuaded that the Good Law Project, which has an absolutely woeful track record in all its challenges on this narrow topic, has any justification in its legal swagger.
And by the way, the GLP's claim that one of the signers of the LBA is "intersex" is misleading: like everyone, they're either male or female. "Intersex" is an outmoded word, since 2005; those in the field now use the phrase "difference of sex development" (DSD). Nobody is "between" sexes; the word was abandoned because it's misleading. The person involved will know, from their consultation with doctors, what their biological sex is, even if their presentation is difference (for example if they have CAIS).
I have very serious doubts that the GLP's action on this will have any success: a 5-0 Supreme Court judgment which is a clarification of existing law about the interaction of human rights between the two sexes. It is not new legislation. It does not change any existing legislation. I do not see any path to a successful challenge in the ECHR.
You didn't mention that Owen, as chair of the WESC, seemed completely uninformed about what the SC judgment (there's no "e" in court decisions) affects: she claimed it's "just about membership of boards". No - that's what kicked off the challenge, but the upshot was to clarify what "sex" means in the EA. And claims that the GRA somehow overrides the EA are false too: S9(3) says that other legislation can override it. (https://www.legislation.gov.uk/ukpga/2004/7/section/9)
"The EHRC.. is attempting to rewrite [the law] so that it is as punishing to trans people as possible". The EHRC's job is, largely, to implement and protect the EA, isn't it? If the SC gives them a clarified reading of what the meaning of the EA is, should the EHRC say "oh, those judges! Just ignore them." Of course not. That's why the read-across to other legislation such as the Workplace Regulations becomes important, and unavoidable. Imagine if, as soon as the EA2010 had been passed, this court case had arisen and progressed to the same result, which would have been at the then-new Supreme Court. We'd be in exactly the same position as now, but without the many years of having had what now turns out to be the wrong interpretation of the law. There's no rewriting here. The EHRC has to consider where the EA affects people, and try to find *legal* descriptions of what organisations need to do, if anything.
You write "Most people cannot take a job if they have to out themselves to their colleagues whenever they need the loo." I'd ask: really? This is very easy to claim, but is there data - polling or similar - to back it up? (I couldn't find any on a quick search.) Any workplace should, thanks to the EA, also have toilets (aka "sanitary facilities", mentioned multiple times in the SC judgment) for the disabled or mothers etc, which provides an easy option. "They will not go to a restaurant or the theatre or attend trade union meetings or go to church or see their child in a school play." Again, all of those would have multiple facilities. And as I think I said on a previous post of yours about this, reasonable people can agree about things. The EHRC interim guidance also says" "however where facilities are available to both men and women, trans people should not be put in a position where there are no facilities for them to use". That's unequivocal.
And there's the final subtlety that Falkner pointed out: this guidance, and the concerns expressed, only applies to holders of GRCs - about 8,000 people. For those not holding GRCs, nothing has changed at all.
Thanks for taking the time to address this very thorny issue, Ian. What has been lost in so much of this, which you highlight, is the very real problems it creates for trans people especially trans women who seem to attract a lot more hostility and attention than trans men with lots of talk of “protecting safe spaces” etc.
Yet the reality is that the number of times that trans women cause problems in such spaces is infinitesimal. In my 68+ years as a female user of such spaces I can remember not one single incident. I don’t even recall coming across a trans woman in such a space. Nor is this an issue which is discussed amongst my female friends and acquaintances which I would expect if it were a real problem. When I have dropped it into a conversation it is literally a non issue.
The net result is that a very small nut is being attacked by a huge hammer for reasons completely unrelated to the excuse for it ie the safety of women and girls. This must not stand.
Lost? It’s all people like Ian have been talking about for weeks. This is from the ruling:
"Including men [with or without a certificate] in lesbian associations would mean a loss of autonomy and dignity for lesbians”
Does this even register with you, or is only trans people that have rights?
Not sure why you feel the need to be so aggressive. I was addressing some of the points raised in Ian’s piece and relating my own experience as I deemed it relevant. How you infer from that that I don’t think other groups have rights I have no idea since I said no such thing.
I couldn't make head or tail of his comment never heard such a load of hot air about use of toilets in my entire life.
I’m 63 and all my life I’ve never been murdered - not even once.
This criminalizing of homicide malarkey’s gotta stop.
Nice example of a reductive argument!
thank you x
No thanks required. Just saying what I see.
"like everyone, they're either male or female"
That's not true, unless you're being a strict binarian essentialist...
You could ask a biologist. The development paths to male or female are antagonistic in the embryo. So you cannot be both. You’re one or the other. Once again: this person’s doctor will be treating them appropriate to their sex. Read up about DSDs if you haven’t.
I literally have a biology degree. Please talk to me more about how you don't understand either biology or sociology.
Explain how mutually antagonistic development paths can lead to an outcome which is both, then. I note from your profile self-description that there may be some motivated thinking in your refusal to accept the binary.
Are you sure that your fundamentalist binarist bioessentialism isn't in someway "motivated thinking" by a need to reinforce a pre-existing moral hierarchy? Because it neatly reduces human development to an acontextual reality which conveniently ignores the complexity of the entire topic, and the fact that development is not preprogrammed, not definitive, and whilst it might tend towards dimorphism, the overlaps in the phenotypes are far far greater than the distinctions. Indeed, this is the fundamental problem with any Platonic or Aristotelian system of categories.
(If you really want to hire me as an educator, feel free to privately message me and we can discuss my hourly rates.)
The binary system is a parsimonious explanation which applies across the animal kingdom and doesn’t elevate Homo sapiens - which evolved from a common ancestor to all the others - above other species to give us some special ability to have “in between” sexes just because we can think.
Development is “preprogrammed” by your genome, and the overlap in phenotypes stops at a crucial juncture: the two different sexes.
Can you name anyone who is not male or female? Perhaps someone we can check, like a celebrity or sportsperson?
Quite easily. Most male sex characteristics in humans are the result of cell organization as a response to androgen exposure. If a person’s cells cannot uniformly react to that androgen exposure for whatever reason, it will result in either a mixed phenotype, or a female dominant phenotype. That’s just one of dozens of examples of how one can end up with a mixed phenotype.
As one biologist to another, shall we discuss whether sex is binary or not? I'll go first. Sex is defined by gametes, if which there are two types (https://www.theparadoxinstitute.com/watch/why-sex-is-binary) therefore sex is binary. That fact, and the fact of a spectrum of how people feel about their gender can be true at the same time.
The paths being antagonistic still doesn't make the classification a simple binary. Male/female sex can be defined in multiple ways and each one leaves edge cases that does not fit into either.
If you suggested that someone with two X chromosomes is female and someone with an X and Y is male, then a person with Klinefelter is both, and a person with Turner syndrome is neither.
The only binary is the box that's ticked on the birth certificate.
If they’re antagonistic, you can only be one or the other - agree? You can’t go down both paths. I’m very aware of the many different DSDs (which are not all due to variations of sex karyotype) and that distinction can be difficult. But that’s why we have medical specialists. And those specialists understand that sex is binary.
"you can only be one or the other - agree?". No, because it's false. People with Ovotesticular syndrome exist, that might be a rare DSD but it still happens.
Just because a process is antagonistic on a cellular level does not mean the entire organism directly and perfectly progresses down a single clear path.
If sex is binary, it's because people have deemed it to be so. And which category individuals are put into may be simple in the vast majority of cases, but for some it's a completely arbitrary decision by a doctor based on some very limited information.
Your original claim that everyone must be "either male or female" can only hold true for everyone if your definition of sex is what was ticked on the birth certificate. It does not and cannot encompass all the complexity of actual biology.
The process is antagonistic on a genetic/developmental level. There are people with OT-DSD on Twitter/X: you can ask, and they’ll tell you that despite having streak gonads, only one type is functional. It’s observed repeatedly. You cannot be both. Humans aren’t hermaphrodites.
I don’t define it by “what was ticked on the birth certificate” - though in 99.998% of cases that’s correct too.
The binary, that save for in cases disorders of sexual development, every single parent can identify instantly at birth.
...and still get WRONG
show me a single parent who has done that.
True, I've decided to define the male/female sexes by star signs today.
I am a student getting by b. Sc. (i also am employed at a reptile zoo and have worked with intersex animals) and I absolutely can assure you that what you are saying is pseudoscientific nonsense. Sex is not one thing, but a collection of characteristics, most of which exist on trimodal spectrums (not solely between male and female, but also between differentiated and undifferentiated). It is absolutely possible to have a mixed sex phenotype, as many sex characteristics have disparate developmental triggers (although the majority of male sex characteristics in utero develop due to cell organization as a result of androgen exposure).
As I mentioned in my previous comment, you mentioned a person with CAIS, and as someone with CAIS will invariable be assigned female at birth, your implication that their “biological sex” is somehow different (ie, not female) doesn’t make any sense. There is even debate as to whether CAIS can be considered an intersex condition because most people with it do not exhibit a mixed phenotype. Partial androgen incensitivity can result in a sexually ambiguous phenotype, but complete androgen insensitivity often results in an entirely female phenotype with no male phenotypic sex characteristics whatsoever.
This is sociological tosh. Ideological flimflam.
A sex is a reproductive role based around a gamete type. As such, it is discrete and the count of sexes is exactly two as only teo types of gamete have ever evolved in anisogamic reproduction.
Huh? How is biology sociological or “ideological”?
Your definition of sex is correct (although it’s an anatomic role, not reproductive; an organism does not need to have a reproductive role to have a sex, worker bees for example).
There are at least 5 dioecious sexes, even with gamates types, as several dioecious species have distinct sexes that produce both types of gamates and can self fertilize, or reproduce sexually with either males, females or both.
In humans, ie mammals, there are two - count them! - sexes, and nobody ever has the reproductive system for both sexes. Sex is a *reproductive* role, because it is defined by organisation around gametes. Someone with CAIS *looks* female, yes. But they have testes, not ovaries. Guess what! That means they are, in reproductive terms, male. Their appearance is female and they will be treated by society - including most sports - as female, which is as it should be, because they haven't gone through male puberty. But because those gonads can become cancerous, as the document I linked to points out, their medical treatment needs to know their correct reproductive sex. The "pseudoscientific nonsense" part is thinking that exogenous hormones magically change someone's sex. Taking oestrogen won't produce ovaries in a male. Testosterone doesn't create testes in a female. And the British legal system, in Betteridge v Betteridge, recognises the basis and immutability of this.
Please stop using "intersex". It informs nobody about the reality, which is a developmental divergence from the normal process, but still only down one of the two developmental paths. I've seen none of this "debate" you describe, so if you have some persuasive links on the topic, please provide them.
You have adopted ideological "definitions" - these crop up in the work of crackpot sociologists, not biologists.
I ask people like you who have adopted this crankery to answer a simple question - what is a sex?
You will not be able to do it.
In your answer, explain why my daughter, dog and parrot all share the same sex of "female".
Good luck.
"You could ask a biologist"
Like these ones?
https://docs.google.com/document/d/e/2PACX-1vRXXLr0Nf8OvUg0idwnX3zJJeB-Bz9u_2fBYZyJQF6RkXrk9YXqPO6bFxfNLo8SkPO-53c0ufv0HqV1/pub
I love that you didn’t bother to read the signatories there, which includes Maths PhDs, not biologists. None of them can give a coherent explanation of how mutually antagonistic development paths can lead to anything but one or the other sex either.
Are you a biologist?
Would it make my answers less correct if I’m not, or more correct if I am? You’re offering the fallacy of appeal to authority.
So if sex is a spectrum, how do you gather and analyse discrimination statistics? How do you present medical data and trends for sex-coded illnesses?
How do you allocate facilities where historically it's been accepted that sex is binary? Where to people go who have decided they are non-binary? How does the law deal with this? Does it just step back and allow self determination in all cases?
"how do you gather and analyse discrimination statistics"
How about the same way it works in other cases? A persons race/ethnicity doesn't always fit perfectly into fixed categories, but it can do for most and that's enough to gather meaningful data. It doesn't prevent anyone gathering statistics on racism.
"How do you present medical data and trends for sex-coded illnesses"
Most people are clearly at one end or the other of that spectrum. Why can't it work the same as always, while still recognising there's a tiny minority that don't strongly fit into those categories. In some cases it might be necessary to be specific about what sexual characteristics are involved in the data.
"Where [do] people go who have decided they are non-binary"
How about where ever they feel comfortable?
"How does the law deal with this?"
Hopefully by protecting peoples fundamental rights and safety.
"Does it just step back and allow self determination in all cases?"
Why not? It seems to be working ok in many other countries
Do you accept my teenage daughter (a female) should be able to use school changing rooms and public swimming showers etc free from males being present?
Yes or no?
“How about where ever they feel comfortable?”
"How does the law deal with this?"
“Hopefully by protecting peoples fundamental rights and safety. “
You don’t see a possible conflict here?
Assuming you're right, how should the law deal with this?
Fairly and equitably. Simple. Of course if you are suggesting that the people should be 'fit for purpose' for the law, rather than the law being made to fit needs of the people, you raise an interesting sociological question.
Fairly and equitably. Simple.
Your comments on intersex people are frankly bizarre and quite ridiculously pseudoscientific. The term intersex is in no way outmoded, is still regularly used in medicine and has not in any way been abandoned as you falsely claim, and is not synonymous with DSD’s. A DSD is a difference in sexual development, while an intersex condition specifically is anyone with a mixed sex phenotype, which is to say, cannot be categorized as one sex or another based on phenotype. I for example have a very common DSD, but I am not intersex, because I don’t have a mixed phenotype. The example you gave is also nonsensical, as a person with CAIS will almost invariably be assigned female (their bodies physically cannot respond to androgens and masculinize, even if they have a male genotype). You seem to be implying that the female assignment would be wrong, which is frankly quite laughable.
I think your comment outlines why this ruling has caused so much controversy. The mainstreaming of frankly some of the strangest and most bizarre pseudoscientific ideas has muddied the waters of this “debate” to the point where legal rulings based on scientific consensus become impossible. The pro-trans side has their own pseudoscientific beliefs as well, but you’ve illustrated the pseudoscientific religious assertions of the gender critical side too. The reality is, members of the gender critical ideology dislike the medical term intersex because it correctly implies the collective and spectral nature of sex.
As someone else pointed out, "intersex" was determined to be "outmoded, misleading and perjorative" in 2005, and replaced with "difference of sex development" as an umbrella term. The "mixed sex phenotype" description isn't one I've ever seen before, but I'd argue it's meaningless and misleading. I can see why organisations and people who have been using it in the 20th century would carry on doing so, but our understanding is clearer now of what is happening, and we should move with the times.
My point about the person with CAIS is that their doctor (and they) needs to know their strict biological sex, because the gonads can become cancerous (https://www.uclh.nhs.uk/patients-and-visitors/patient-information-pages/complete-androgen-insensitivity-syndrome-cais). They won't, by contrast, need pap smears, but probably will need mammograms. I made no inference about their assignment for general life - that was you. Try rereading what I wrote.
I didn't bring up "intersex" - the pseudoscientific people at the Good Law Project, who seem unaware of medical developments over the past 20 years, did. I, and others, pointed out that the GLP's signatory will in fact be male or female, because we all are. "Sex" is not a spectrum; phenotypes are, but that's a very different thing. You won't find someone who's 80% female, 20% male: what would that imply? That they produce ova some of the time, sperm the rest? We can see that's ridiculous. Sex is fixed, and binary.
As was also pointed out, this is false. The term intersex is neither outmoded, misleading or “pejorative” (the last assertion is especially bizarre as intersex people refer to themselves as intersex, while only religious activists who are bigoted against intersex people take issue with the term), and the term intersex is not synonymous with differences in sexual development. I myself have a very common DSD; I am not intersex.
You can’t argue it’s meaningless or misleading, as it exists objectively.
Absolutely, our understanding is clearer now than ever, and we should move with the times. That includes abandoning the pseudoscientific assertions of the gender critical religious movement.
There is no such term as “strict biological sex” (that’s religious terminology you just invented; it doesn’t exist in medicine), and people with CAIS are invariably assigned female at birth. So far as I am aware, it is not even physically possible for someone with CAIS to have a visibly mixed phenotype, and therefore said person could not ever be assigned male.
The Good Law Project, from what I can tell, is a legal group, not a medical group. I am not speaking from a legal perspective as they are, nor from a religious perspective as you are. I am speaking solely from a scientific and medical perspective.
Sex is absolutely a spectrum, and nearly every aspect of sex is phenotypic. You absolutely can find someone who is 80% female and 20% male (although we don’t measure by percentage) not only with regards to sex characteristics as a whole, but even the individual sex characteristics themselves lying on a spectrum between male and female. Thats how sex works. It’s just biology.
Your last 2 sentences are very revealing, as they prove without a shadow of a doubt that you are arguing from a religious perspective. The gender critical religion defines sex as supernatural ordination pertaining to gamete production. So if a woman cannot produce large gametes, she is not female (according to the dogma; though GC activists will move the goal posts and say that actual production of said gametes is not necessary for sex assignment— which is true though completely undermines their religious beliefs.
Sex is spectral, and highly variable, and not at all fixed. That is very obvious to anyone with basic education in the field of biology, and not an adherent to a new age religious movement which takes great issue with biological reality (and in this respect, I refer to both gender critical religious activists and pro-trans political activists, as both groups hold pseudoscientific views; science is objective and has no bias).
If I strip out the parts where you're trying to be insulting, there isn't a lot left. Biological sex is defined in biology and British law. The question is not how people with CAIS are "assigned", but what sex they actually are.
Re gametes, you misunderstand - perhaps intentionally - the difference between "organisation" and "production". A car doesn't have to move for us to know it's a car: we recognise its organisation as such.
If sex is a spectrum, explain how we'd recognise someone who is 80% male and 20% female. You say it's a spectrum, which means there are intermediate points on it. (It could be like an absorption spectrum with specific lines, or a smooth one like visible light.) How do we measure the 20% femaleness of this person? What precisely is the measure of maleness that lets us know they're 80% male, and not - say - 75% male and 25% female? You've made the claim of a spectrum. Back it up with precise descriptions. Persuade me, and all the readers here.
I was not attempting to insult you. If you got that impression, I apologize. Tone is difficult to express through delayed written replies.
Sex is solely a biological term. British law doesn’t define it. No law does. Not even scientific law, as it’s a categorization schema, not a physical absolute.
Not at all, I assure you I didn’t misunderstand. You’re delving into the realm of sociology here which I am not educated in. I’m a biology student. We don’t debate terms like “organization v. production” in biology. There’s not such a thing. Pre-ordaining any divine purpose on a characteristic is both a deterministic fallacy, as well as an ecological fallacy. Your way of thinking is very common among those who argue in favour of creationism and intelligent design. Biology is random and has no intended purpose. That’s why biology (and more specifically evolution) is nicknamed “the blind watchmaker”.
As for your last paragraph. We could hypothetically take an intersex person, measure every single one of their sex characteristics, and not only come up with a percentage of how many lean male vs. female (and also differentiated vs undifferentiated), we could also take each individual sex characteristic, and compare it to the phenotypical averages of males and females, and chart it on a graph. In both instances, you would land on a point in between male and female, and could very easily come up with a percentage.
This is all completely possible, we just don’t measure sex this way because it doesn’t serve much of a purpose.
Outdated and pejorative: https://www.ncbi.nlm.nih.gov/books/NBK557435/
Not at all outdated and certainly not perjorative. The only people who find it perjoritive are gender critical religious activists, as the term implies their religious beliefs are unscientific. Intersex people use the term themselves, as do physicians. Their opinions are the only ones that matter.
Literally a quote from the published ‘educational activity’ - Terminology, such as hermaphrodite, pseudo-hermaphrodite, and intersex, are considered to be pejorative and dated.
Can you state anyone who is not male or female? Actually name someone we all might know?
I understand the general argument re use of facilities what I cannot understand is why on earth anyone would care! I know this is superficial but so are the various red herrings and nonsense presented under the heading of culture wars! Go to Iran that is a war. Known in the region as 'The keep Bibi out of jail war!'
Because some people - specifically, and often, women who have suffered sexual assault - care. They express that view. There are lots of things I care about that you don’t ,and vice-versa. That doesn’t give you the right to override my feelings about what I care about, nor vice-versa. There are parents of girls who care. It seems very unimaginative to say “this doesn’t affect me directly so it doesn’t matter.”
Which I didn’t say you appear to be arguing with yourself!
Lord Sumption and Lady Hale are retired. Neither of them ever practised in equalities legislation and it is they who have misinterpreted the FWS judgment; not the other way around. The judges in the Supreme Court who actually heard the case were unanimous, therefore Baroness Falkner and the EHRC are entirely correct to say that there is nothing to discuss in terms of the judgment. Your assertion to the contrary is nonsense.
Your offensive and frankly sexist attack on Baroness Falkner is disgraceful and flies in the face of what everyone else saw and heard, namely an utterly ill-informed, negligent and embarrassing performance by the majority of the WESC. It was abundantly clear that they hadn't bothered to read the judgment, had no idea what the FWS case was about and also didn't understand what the Equality Act or the Gender Recognition Act or the Workplace Regulations actually say.
If you want genuinely informed comment I suggest you read Dr Michael Foran, or Naomi Cunningham KC, or Peter Daly.
The Good Law Project has an abysmal litigation record, the 'swagger' you refer to is their stock in trade and means less than nothing.
Which of the five behind the decision practiced in equalities law? And Cunningham isn’t a KC.
The question before them was: does it lead to a contradiction if we interpret the GRA to carry over into the EA, ie "woman" in the EA also means "male with a GRC"? They decided that it did create a contradiction and that therefore that interpretation could not be allowed. This doesn't require a background in equalities law - although some of those arguing the case are very experienced in that field. If your argument is "The Supreme Court should not rule on cases where at least one of its judges is incredibly experienced in this space", then you might as well dissolve the court and the whole legal system. Judges are there to hear the arguments and rule on them.
Your complaint is on a level with those who say "but the SC didn't hear from trans people!" It's not the small claims court. It's not a sentencing hearing asking for impact statements. It heard from the Scottish government and Amnesty, who put that side of the argument. They didn't prevail. That's the legal system.
You read a lot into two lines. It’s not a complaint. I was responding to someone who said that Hale and Sumption have no equalities background, by implication dismissing their views as a result.
Lady Simler practised in employment law, which is a field in which issues of discrimination and equalities law frequently arise, and has had a role in promoting equality amongst her other professional and judicial responsibilities in the course of her career
I wouldn’t disregard either of their views, but I think the point is both have been reported, probably quite selectively reported, in commentary for a general audience on the decision and its reception by interested organisations and individuals. Such commentary, even from a serving or retired judge of the UKSC, is qualitatively different from the writing of the unanimous judgment itself
Thanks, although Hale also did a lot in respect of the latter too. I just think it misunderstands the role of SC judges to pick and choose whether their views are relevant based on background.
Hale was an academic lawyer, Law Commissioner, and then a judge in the Family Division. She would have seen a wider range of work as a judge in the Court of Appeal and Supreme Court but certainly not had the same breadth of experience of equalities law as Simler. An individual judge’s subject matter experience isn’t irrelevant but it isn’t the only criterion for evaluating their decisions either
Well that was rather my point. The suggestion that Hale and Sumption's views on this can be disregarded doesn't hold weight. These judges will have dealt with issues of discrimination and equalities many, many times.
Yet another woefully misinformed,
lazy interpretation that, like most of the commentary on the ruling, fixates entirely on the feelings of cross-dressing men and completely ignores the rights and needs of other minorities.
From the ruling: “Including men [with or without a certificate] in lesbian associations would mean a loss of autonomy and dignity for lesbians".
Obviously, this loss of autonomy and dignity for lesbians - already in evidence in places like Tasmania, where it’s illegal for them to gather without men present - is of absolutely no concern to you or any of the many trans-obsessed commentators completely incapable of grasping that other people have rights, too. It’s a total irrelevance, not even worth mentioning. The many women (and some men) fired, banned, suspended from political parties and even physically attacked for defending their legally-protected rights pale into inconsequence next to the feelings of the men pretending to be women, who have suddenly become the most marginalised group in society’ (disabled and blind people would like a word). Not even the trans activists’ piss protest which brought Falkner close to tears registers as remotely significant.
If ‘trans women’ really were women, you wouldn’t give a fuck about them - the only reason you focus entirely on them is because you know they’re men, and men must get what they want. The fact is that to be a trans woman, you have to be male - it’s literally the prerequisite. Your mother can’t be a trans woman. Which means you think there is such a thing as male women. It would be laughable if this mass delusion hadn’t had such a terrible impact.
Trans activists, most notably Stonewall, spent a decade systematically and shamelessly lying about the law, trampling over women’s rights, gay rights, as well as freedom of belief, speech and assembly, pushing for self ID which is not the law and never has been. The ruling reasserted reality and clarified that other rights matter too. For whatever reason that drives you nuts.
As for the Good Law Project, I assume you simply haven’t noticed their hilariously bad recent record. And mentioning former Supreme Court judges - so what? They were no more involved in the ruling than I was.
Shame on you for such a narrow minded, blinkered piece.
Your comment reflects several factual errors, misinterpretations of law.
1. Misrepresenting Trans Women
Referring to trans women as “cross-dressing men” or “men pretending to be women” is both inaccurate and dehumanising. UK law recognises trans women, particularly those with a Gender Recognition Certificate as legally female under the Gender Recognition Act 2004.
Even without a GRC, trans people are explicitly protected under the Equality Act 2010, which covers the characteristic of gender reassignment (Equality and Human Rights Commission [EHRC], 2022). Denying their identity contradicts both legal and medical consensus (Hines, 2013; Whittle et al., 2007).
2. Misquotation of the Ruling
You claimed that the ruling states:
“Including men [with or without a certificate] in lesbian associations would mean a loss of autonomy and dignity for lesbians.”
This is not a quote from For Women Scotland v. Scottish Ministers or any UK Supreme Court ruling. No such wording appears in the judgment. Presenting fabricated quotes as legal precedent weakens your position and misleads others.
3. False Claim About Tasmania
Your reference to Tasmania allegedly making it “illegal for [lesbians] to gather without men present” is entirely false. Tasmania’s anti-discrimination laws prevent exclusion based on gender identity or sexual orientation, but they do not criminalise single-sex lesbian gatherings (Tasmanian Anti-Discrimination Act 1998). This is a myth that has been repeatedly debunked.
4. Mischaracterising the Impact on Others
You imply that trans women are receiving special treatment at the expense of other minorities. In reality, trans people, especially trans women, experience some of the highest rates of discrimination, violence, and economic marginalisation in the UK (Stonewall, 2020).
Suggesting their visibility or protection comes at the “expense” of others frames equality as a zero-sum game, which it is not (Pearce, 2018).
5. Misuse of the Term “Male Women”
Your assertion that “to be a trans woman, you have to be male” imposes a binary biological essentialism that is rejected in both law and social science. The idea of “male women” is a contradiction only if you reject the very concept of gender identity, something that both legislation and medical authorities do not (World Health Organization, 2019).
6. Employment and Legal Protection Misunderstood
You list people being “fired, banned, suspended…” for expressing gender-critical views. While beliefs are protected (Forstater v CGD Europe, 2021), behaviour, including harassment or misgendering, is not. Belief does not give someone a licence to cause harm. Rights come with responsibilities, including upholding the dignity of others.
7. Dismissing Harassment as “Not Significant”
Your remark on the protest that brought Falkner to tears is an example of minimising others’ emotional harm while amplifying outrage over perceived insults. This double standard is not a compelling moral argument.
8. Claims About Stonewall
Accusing Stonewall of “lying about the law” and “trampling over rights” is an unsubstantiated claim. Stonewall’s advocacy has been consistent: they support legal reform, not legal subversion. There is no evidence of systemic deception. Disagreeing with a lobbying position is not evidence of dishonesty.
9. Misogyny Framed as Feminism
There is an undercurrent in your comment that reasserts male dominance as the root of all trans identities—l, an ironic claim, considering trans women face substantial structural and social disempowerment. Feminism that excludes trans women while claiming to protect cis women’s rights is exclusionary and harmful. Lesbian trans women exist. They are not men intruding into lesbian spaces; they are part of those communities (Pearce, 2018).
10. Tone and Dismissiveness
Your tone, describing trans people as part of a “mass delusion,” ridiculing others for showing empathy, and asserting “you wouldn’t give a fuck about them” is aggressive and unproductive. It’s difficult to view such language as anything but an attempt to shut down discussion rather than contribute meaningfully.
I’m open to discussions on rights, law, and inclusion. But those discussions need to be based on facts, not fear.
Certainly not made up facts, as you have.
They should reflect the reality of people’s lived experiences and legal protections, not weaponised misinterpretations or imagined losses of autonomy. Trans rights are human rights. Supporting them does not diminish the rights of others, it reinforces the principle that everyone deserves dignity, safety, and freedom.
I'll leave you with one thought. If you had a transgender daughter are you happy to force then into a male toilet, if alternatives are not available, with your drunken mates in a pub in a Saturday night?
If you are you are a different parent than me.
Still you do belong to the single largest group who assault women, cis men, and assault transgender women at 3.5x times more than biological women. So I hear your anger and concern.
Your appeals to authority by quoting the likes of Hines and Whittle fall more than flat. The Supreme Court carefully weighed the human rights of ALL and purposes of the Equality Act in coming to their conclusions.
Every person has the rights of the sex they actually are. Those who identify as trans have additional protections in matters such as employment discrimination etc. Those with a GRC have right to lawfully misrepresent their sex for certain purposes in limited arrangements with state, but not where they impact on others’ rights. A male with a GRC is a male with a GRC.
But that is 'factually' untrue isn't it... however much you want it to be the case ... it expresses a desire to protect an ontological position than enter in an honest discussion. One only hopes that those friends, colleagues or even your children and relatives with children who are transgender or hiding their transgender consider your views in a supportive fashion, rather a denial or thier existence. That's social media for you.. everyone can read it. To your original point ... The Gender Recognition Act (GRA) 2004 states that a person's change of gender is for "all purposes" their acquired gender with only specific exceptions outlined in the GRA itself and other legislation, notably the Equality Act (EA) 2010. So outside of the EqA the law is clear ... 'for all purposes a woman'. I pass no comment on whether this should be the case, just that your comment is therefore and respectfully legally and factually illiterate.
Your complaint at (2) is rather weak because although it's not a direct quote it's a perfectly accurate summary of paras 206-8 of the judgment
Men aren't women though.
You talk about gay rights and freedom of association, but it’s the EHRC guidance as supported by gender critical activists which seek to undermine and prevent gay and lesbians associating as they have done for years now.
Whilst it’s true that “the Supreme Court ruled on one issue: the definition of the words 'man' and 'woman' in the Equality Act”, to arrive at that ruling it had to consider how the law should be interpreted where there is an argument as to what the meaning of sex in a statute is.
In doing so it set out the test to be applied in such situations so it is not the case that “for all other legislation, a trans woman is a woman” rather it will depend on the wording and purpose of each individual statute.
[This is only the case for GRC holders, non-GRC holding transwomen will always be men as FWS makes clear.]
This test can be found in para 156 of the judgment
“Section 9(1) applies unless section 9(3) applies. Section 9(3) will obviously apply where the GRA 2004 or subsequent enactment says so expressly. But express disapplication of section 9(1) is not necessary as we have explained. Section 9(3) will also apply where the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1)”
[N.b section 9(1) contains the rule that a GRC changes the holders sex for all legal purposes.]
If the question of the meaning of sex in the workplace regs gets to court, this is the test that will be applied.
In arriving at it’s decision in FWS the Supreme Court considered the reasoning for the single sex exemptions and concluded that they are “directed at maintaining the availability of separate or single spaces or services for women…that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes”.
The exact same considerations would apply were a court asked to rule on the meaning of sex in the 1992 Workplaces regs (they specifically reference the need for single sex changing rooms for “propriety”) so it is extremely unlikely it would reach a different decision than the Supreme Court.
This means that while the hypothetical employer following the EHRC interim update in the scenario you envisage might well face a claim, that claim would almost certainly fail. Conversely, should a woman bring a claim against an employer who was not following the guidance but allowing transwomen to use a women’s single sex toilet or changing rooms, that claim would be likely to succeed.
The Good Law Project's legal challenge may have an “unmistakable legal swagger” but it understandably sets out only the arguments for its case not those against it.
'Legal swagger'. Oh, dear. Has Ian ever met any lawyers?
Has he not noticed that *sounding confident and definite* is the way they all present. It's a professional stock in trade. It has no bearing on how likely they are to win a case.
In reality, Jolyon Maugham and the GLP have been very largely unsuccessful in their recent cases.
Last week a High Court judge took a look at the Good Law Project’s “legal swagger” at a hearing listed to decide whether or not their application should have permission for judicial review. It appears from accounts posted to social media by people present at the hearing that the judge, Mr Justice Swift, was not impressed by the primary case as articulated to him, directed some re-drafting of it, and adjourned the decision on both permission and (if granted) substantive judicial review to a two day “rolled up” hearing in November
You may find this helpful; it is written by Michael Foran:
"Since the For Women Scotland decision some have argued that trans inclusive policies are lawful and that employers and service providers have discretion over what services to provide and on what basis. In this post, I set out the law on this issue:"
https://knowingius.org/p/are-trans-inclusive-policies-lawful
Not sure Kishwer Falkner is "conservative" or "Spectator Online"; she was a Liberal Democrat for more than 30 years, stood for Parliament for them and was certainly a Liberal Democrat peer when she was my committee chair.
The man behind GB News and Unherd was a key Lib Dem donor and supporter, so it’s not some mitigation against crank right wing views.
When you refer to the Gender Recognition Act 2004, you refer to 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)"
However, you very conveniently ignore section 9.3:
"Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation."
Section 9.3 means that section 9.1 is able to be disapplied in situations where the application of 9.1 makes the law incoherent or unworkable in relation to other enactments, for example the Workplace Regulations 1992 which covers the provision of toilets, washing and changing facilities in the workplace [sections 20, 21, 23 and 24].
This is explained in para 156 of the Supreme Court judgment.
The full judgment is here: https://supremecourt.uk/uploads/uksc_2024_0042_judgment_aea6c48cee.pdf
Boy have you gone down the TRA rabbit-hole, Ian. You are aware of the Good Law Project’s abysmal record on this topic, and Jolyon’s status or lack of it among actual
legal experts in the relevant area? Apparently not. Few excuses left in 2025 for not knowing about this stuff.
this is an excellent summation of wednesdays charades , falkner was indeed running down the clock because what is happening is indeed going to cause chaos out in the real world , now the EHRC is insisting on segregation ... on a minority who have never needed segregating , the people proferring all these changes have worked hand in hand with tufton street thinktanks and christian fundamentalist finance has flowed through the "charities" set up to lobby parliament
for disclosure i am a trans woman field service engineer working in lincolnshire , i came out to work 3 years ago and we sat and worked a way to accommodate me because my employers are good people and i am a good engineer ... indeed i am even better now as the 2 years since i fully came out and started working publically in the pubs and clubs of lincs have shown a better balanced me and a happier more sensitive me so i look after 100 pubs and clubs and i live in my car it seems and toilet facilities are not what the london metropolitan elite are used to , many pubs do not have disabled facilities let alone room or finance to set up a third space for me or the few trans women brave enough to be out in reality ... and why should they have to fork out for one for little old me ... i simply want to go out , do my job and come home , no mess no fuss
i have already been almost simultaneously on the right side and the wrong side of the supreme courts ruling , at a site in skegness i received a call to repair a note mechanism and i was in hull , that is a near 2 hour drive and the day was late on with plenty else to do work wise so i headed down and arrived at the site , i was bursting for the loo on arrival and on entry i spoke to the landlady and mentioned the toilets "is it ok and which loo should i use" , trish the landlady instantly said "the ladies tori the ladies" so i tried to see where they were but they were hidden down a side partition behind the bar and i had never been down there , the sites disabled loo was out of order with a hastily made sign and is the normal option i use if i have to go to the loo on any site because it is the path of least resistance or agitation , anyway as i looked for the ladies i had to pass 3 males by the pool tables and one of these lads spotted me and "made" me
this one tiny thing instantly changed the whole dynamic because as i passed them i could hear whispers and a muttered "what the fuck" so i knew things could get heated ... you get a feeling for this when it is your lived reality , in panic i headed for the nearest loos i could see which were the males toilets , so i ran in there , did my business , came out and repaired the machine and 20 minutes later all was done and i departed ... the males stayed at the pool table , i was safely by the bar to repair the machine a good distance away
two days later i received a call off my colleague that a complaint had been made to the landlord about me using the male toilets so work had to investigate and follow up , after a weeks checking up i discussed the event with my boss and explained everything to him , following this i am now "barred" from the site according to the landlord because in his words he cannot guarantee my safety there , this happened the day before the supreme court ruling and when i spoke to my boss i said to him "this could all change tomorrow" and told him what was happening aka SC ruling and indeed it did change the next day , so in 2 days i went from being wrong to being right but in the end no one has won , that site i refuse to go near and lost a friend through this
and on a final note charles ... you really need to come out and explore lincolnshire with me as a working trans woman , most of that filler written down you would discard within a days work out here because reality is a different kettle of fish , i recognise you as a journalist but those words i do not recognise any real acknowledgement of the problems being caused ... it is simply words without feeling or lived reality , sorry but you can write all you want but until you walk a mile in my shoes you know little to nothing apart from all those encyclopaedic tomes you have clearly read
Sorry to hear about your experience Tori. From your recounting though it doesn’t sound as though the SC ruling did, or any EHRC guidance would, make any difference to the situation. The problem is the attitudes of people - particularly men. I don’t know what you think the answer is there.
thank you and exactly ......... there is no real answer , the real problem is how is the british state going to rid itself of the think tanks and appointments made to pursue a single purpose regardless of the harms caused along the way , the EHRC especially being used specifically with appointments like falkner by badenoch , i am no activist or twitter trans btw simply a citizen who after nearly dying to a heart attack then set off correcting my life to a path i feel is right , the SC ruling in effect as you can see created a paradox , the EHRC i am part way through filling in because they need to see my words ... of course it will all be ignored , my offer however stands charles i would love to speak with a journalist because the one thing missing everywhere is trans voices , everyones deciding for us without experiencing what we go through x
Do you think those men in the bar had ever heard of the EHRC? Or a think tank? I wonder if you’re taking aim at the wrong targets.
i cannot judge everyone on their education or lack of , simply do my best in the situation , men being men as we see with the current calls socially of how do we improve men so their attitudes are better or so they stop raping or whatever social justice calls are being made at that time is not something i can do ... because "hey that ones one of them thar trannies" and society isnt doing any better at ridding our men of these legacy problems for me or for the women of this country is it
but the EHRC is a story the newspapers will print when they finally realise the wholesale capture of the equalities commission and how it will affect others if the problems simply get ignored , its present path of throw us to the dogs is not one i am aiming wrong with , men in the street are not my enemy but it seems i am the EHRC's enemy
It wasn’t the EHRC in that bar though was it. The SC ruling wouldn’t have made any difference - I doubt any of them knew about it.
no the ruling would make zero difference due to it happening a week before the ruling however ... what happened after this ruling passed however highlights that this is only going to become more commonplace for me and for women because they will also be judged against appearances , my partner is way more masculine than me but she's a cis lass ... what happens then ? knicker checks ? whoever tries that with my Mandy moo will deserve the black eye she gives them ... and I'm sorry but that is the EHRC own insistence creating these issues so no i will not give that corrupted organisation the free pass you are giving them , remember the supreme court intimated this was not to deny us any rights or protections ... thats falkner doing that , all i have done is show that what you are hinting is black and white is actually many shades of grey and more varied than you seem able to imagine , i showed one permutation
I'm so sorry you're having to go through all this.
thank you nicole , we will win out , its refreshing seeing voices here with good intent x
Good article. The whole toilet thing seems to be reminiscent of the segregation in toilets for different races in certain countries over the years. It's a way of controlling people who are deemed 'less than'.
I seem to recall something I read about a while ago about the Arpatheid Government in South Africa having legislation which limited the number of toilets in areas where black people lived to make it harder for black people to exist. Please do correct me if I misremembered this.
I believe that during the early days of public toilets in English cities, I know these were almost all men only, so this meant that women were not as free to travel as far from home.
See you in Sheffield this weekend
When my young daughter uses a public toilet I’d like the safety of knowing there aren’t any males in there with her, however they identify. And if there are, that they’re not supposed to be there and I can challenge them. That you’d compare this simple safeguarding principle which absolutely nobody had a problem with until a few years ago to racial segregation is one of the most unhinged things I’ve ever heard.
Do you feel that about all subsets of men not allowed in women's toilets or just this specific subset of men?
Trans women are not men, no matter what you or the Supreme Court seem to think.
If the Supreme Court thinks it, you’re not going to thrive by disagreeing. I wonder how many of the people so angry about this ruling were delighted by the SC ruling on prorogation or the 2017 Brexit ruling. Are they only right when they agree with you?
Ok so they're women in their heads only. That's as relevant as your star sign then.
I certainly feel perfectly safe around trans women. I'm not sure I'd feel the same about you, going by your conduct here.
Do you think women in prisons feel safe around transwomen in the same prison who are there because of violent assaults on and rape of other women?
Good for you, snowflake
Not actually interested in reading Ian’s piece then, Adam? Perhaps you’ve not properly considered your motivation for commenting here - why not do that now?
What insulting nonsense. Segregation by sex in certain situations is a well recognised, basic, human rights principle
I appreciate that some of the commentators may not agree with me. I wasn't going to respond but felt it was important to point out some fundamental issues with the arguments about 'toilet bans' being about women's safety.
I have experienced sexual violence and the danger was never in public toilets. Sexual predators don't need to go to the trouble of pretending to be a woman and accessing women's toilets (in fact a small minority of sexual predators are female). Sexual predators are in offices, classrooms, youth clubs, churches, temples and even in our own homes. The real safety issues for women (and men as they can also be victims) are pretty much anywhere else.
Please, if you care about women's safety please actually take concrete action on the actual threats to womens (and mens) safety.
The flawed women's safety argument just allows everyone to look away from the real issues around sexual violence and turn transgender individuals into a monolithic scapegoat.
But that is undermined by the very arguments trans activists make for why TW MUST use women's toilets. If toilets are just for doing your business, why can't TW use the male toilets?
I've also yet to hear any argument for why some men (TW) should be exempt from the safeguards we have around all men with regards to women's spaces.
The reasons for women's/men's separate facilities are for a mixture of dignity, safety, privacy. That's enough. Make an argument that says we should abolish those (TWAW isnt one)
This article is a miasma of misunderstanding and misinformation. It’s dispiriting to see Ian Dunt committing the same offences against accurate and fact based reporting that he has built a career on prosecuting.
Dunt writes:
“Falkner's … point was that none of this was her fault. She had not come up with the Supreme Court judgement [sic]. Her duty was simply to communicate what the judgement [sic] meant legally. Once again she was told of trans women put into extraordinary difficulty - in one case having to tell their employer of 30 years they were trans. ‘I think we have a slight danger here of shooting the messenger,’ she said. ‘The judgement [sic] was one delivered by the Supreme Court and I suggest you call the five justices in front of you and challenge them on why they arrived at the decisions they've arrived at.’
[This was] flatly wrong and highly misleading.”
In fact, it was neither wrong nor misleading. The EHRC cannot issue any guidance that deviates from the Judgment. The EHRC has no authority to do so. Parliament writes the law and the courts interpret it. The EHRC cannot substitute a different interpretation of the law than that of the Supreme Court.
Similarly, Dunt writes:
“…the EHRC had again banned any discussion of the legal position. ‘The Supreme Court made the legal position on the definition of sex clear,’ Kirkpatrick wrote, ‘so we are not proposing to discuss views on the judgment or the decision-making process of the Supreme Court during this Q&A session.’”
Kirkpartick’s statement here is nothing more than an anodyne summary of the facts of the matter. In the context of having to issue guidance on the decision, with recess approaching, it would be extraordinary for the EHRC to hold discussions about shortcomings in the Judgment: there would be literally no purpose in doing so. It hasn’t banned “any discussion of the legal position”, it has made clear that it is not the EHRC’s function to hold such a discussion, which would be completely redundant.
As to the Judgment itself, Dunt writes:
“The Supreme Court ruled on one issue: the definition of the words 'man' and 'woman' in the Equality Act. They [sic] decided that man meant biological man and women meant biological woman. In other words, a trans man is a woman and a trans woman is a man.
But this is only the case for that one piece of legislation. In every other piece of legislation, a trans man is still a man and a trans woman is still a woman. This is because the Gender Recognition Act states that someone with a gender recognition certificate has changed their sex ‘for all purposes’.”
This is wrong. “For all purposes” is s.9(1) GRA. Section 9(3) then makes 9(1) “subject to provision made by this Act or any other enactment or any subordinate legislation.” In other words, it’s “for all purposes”, except when it is not. The point of the Judgment is that the EqA is such a piece of other legislation.
And the case itself arose from the definition of “woman” used in an other “other piece of legislation” – the Gender Representation on Public Boards (Scotland) Act 2018. The definition is not and cannot be restrained solely to the EqA.
So when Dunt writes “The basic situation we’re in now is therefore as follows: For the Equality Act, a trans woman is a man. But for all other legislation, a trans woman is a woman. Yes, it is confusing, but this is where we are”, he is wrong: in all legislation in which questions of discrimination on the basis of sex arises, a trans woman will be a man.
This is exemplified by his comments on toilets:
“The problem is that the Workplace Regulations 1992 is a completely different piece of legislation to the Equality Act. And therefore the words 'man' and 'woman' do not refer exclusively to biological sex. They come under powers in the Gender Recognition Act and include trans people in whatever their adopted gender is. This is a very significant problem for the EHRC position, because it itself recognises that the Supreme Court ruling refers only to the Equality Act.”
The 1992 regs require sex-segregated toilets (reg 20), washing facilities (reg 21) and changing facilities (reg 24). They have to apply the Equality Act 2010 definitions of “sex”, “woman” and “man” because a breach of the regs will be litigated by a claim using the EqA. See for example the ongoing case of Peggie v Fife Health Board, or the Darlington Nurses case, both of which rely on the 1992 regs. You won’t find a lawyer that doesn’t expect those women to win their cases (if the employers don’t fold before judgment is issued).
Or Earl Shilton TC v Miller [2023] EAT 5. The lawyers in that case didn’t even have to rely on the 1992 regs, but the Judge did in his judgment (para 32).
Dunt also doesn’t understand the distinction between trans people with a GRC and those without. The Court didn’t have to expend much effort considering those without a GRC in its Judgment, because the law is non-controversial – “Their sex remains in law their birth sex” (para 11). The judgment was about trans people *with a GRC*. Yet Dunt’s commentary refers only to “trans people”, “trans men” and “trans women” without even recognising a possible distinction arising from a GRC.
Even those decrying the Judgment aren’t seeking to challenge this: trans activist barrister Robin White sees the corrective to the Judgment as an amendment to the EqA to define “woman” as including “a trans woman with a gender recognition certificate”: https://translucent.org.uk/clearing-up-the-mess-of-the-supreme-courts-trans-equality-ruling-an-easy-job-for-a-politician/. Even trans activists recognise that the law provides sex segregation regardless of a GRC, and even they only prescribe a change relevant to GRC holders.
Dunt’s position implies that the Judgment has changed the law. But there is no change in the law, only a restatement of what the law always was. The Interim Update informed businesses that they need to ensure sex segregated toilets are sex segregated. This is required by the Judgment. See for example at para 224 - the same reasoning will apply whenever any other legislation was considered by a court, because it would require reference to the EqA (and, now, the Court’s) definitions of sex. The EHRC’s interim update has no choice but to reflect this. Accusing the EHRC of “eradication” and “destruction” of rights is foolish.
Dunt’s fawns over the Good Law Project, which has lost nearly every case it has ever gone near. He should not rely on GLP’s website guff, and instead link to the actual papers in the case (and ask himself why GLP haven’t published these). Dunt calls the EHRC a “culture war campaign group”, a mislabelling of the EHRC, but is a factual description of the GLP. They’re not even a law firm – they are no longer regulated by the SRA, and Maugham is no longer regulated by the BSB - they’re lobbyists cosplaying as lawyers.
Dunt has misunderstood this issue from top to bottom. More damning for a journalist, he has missed the actual news line: an incorrect understanding of the law has permeated so comprehensively that when the law is (eventually) authoritatively stated, it elicits the kind of hyperbolic howl of disbelief exemplified by this article. The reasons for this include commentators gullibly taking activist lines at face value, and confidently (“with an unmistakeable legal swagger”) reporting them as fact.
Trans people have been lied to by their own campaign groups who have told them that they have rights that they in fact never held. To now discover the truth of that lie will obviously be hugely distressing for them. It is not possible to assuage that distress by telling more lies.
There is a job to be done to disperse the clouds of misinformation that settled over the past decade and more. The EHRC are belatedly setting about that job. They should be given assistance, not subjected to silly little hatchet jobs like Dunt’s.
But Peter, tell us what you *really* think!
This article is a miasma of misunderstanding and misinformation. It’s dispiriting to see Ian Dunt committing the same offences against accurate and fact based reporting that he has built a career on prosecuting.
Dunt writes:
“Falkner's … point was that none of this was her fault. She had not come up with the Supreme Court judgement [sic]. Her duty was simply to communicate what the judgement [sic] meant legally. Once again she was told of trans women put into extraordinary difficulty - in one case having to tell their employer of 30 years they were trans. ‘I think we have a slight danger here of shooting the messenger,’ she said. ‘The judgement [sic] was one delivered by the Supreme Court and I suggest you call the five justices in front of you and challenge them on why they arrived at the decisions they've arrived at.’
[This was] flatly wrong and highly misleading.”
In fact, it was neither wrong nor misleading. The EHRC cannot issue any guidance that deviates from the Judgment. The EHRC has no authority to do so. Parliament writes the law and the courts interpret it. The EHRC cannot substitute a different interpretation of the law than that of the Supreme Court.
Similarly, Dunt writes:
“…the EHRC had again banned any discussion of the legal position. ‘The Supreme Court made the legal position on the definition of sex clear,’ Kirkpatrick wrote, ‘so we are not proposing to discuss views on the judgment or the decision-making process of the Supreme Court during this Q&A session.’”
Kirkpartick’s statement here is nothing more than an anodyne summary of the facts of the matter. In the context of having to issue guidance on the decision, with recess approaching, it would be extraordinary for the EHRC to hold discussions about shortcomings in the Judgment: there would be literally no purpose in doing so. It hasn’t banned “any discussion of the legal position”, it has made clear that it is not the EHRC’s function to hold such a discussion, which would be completely redundant.
As to the Judgment itself, Dunt writes:
“The Supreme Court ruled on one issue: the definition of the words 'man' and 'woman' in the Equality Act. They [sic] decided that man meant biological man and women meant biological woman. In other words, a trans man is a woman and a trans woman is a man.
But this is only the case for that one piece of legislation. In every other piece of legislation, a trans man is still a man and a trans woman is still a woman. This is because the Gender Recognition Act states that someone with a gender recognition certificate has changed their sex ‘for all purposes’.”
This is wrong. “For all purposes” is s.9(1) GRA. Section 9(3) then makes 9(1) “subject to provision made by this Act or any other enactment or any subordinate legislation.” In other words, it’s “for all purposes”, except when it is not. The point of the Judgment is that the EqA is such a piece of other legislation.
And the case itself arose from the definition of “woman” used in an other “other piece of legislation” – the Gender Representation on Public Boards (Scotland) Act 2018. The definition is not and cannot be restrained solely to the EqA.
So when Dunt writes “The basic situation we’re in now is therefore as follows: For the Equality Act, a trans woman is a man. But for all other legislation, a trans woman is a woman. Yes, it is confusing, but this is where we are”, he is wrong: in all legislation in which questions of discrimination on the basis of sex arises, a trans woman will be a man.
This is exemplified by his comments on toilets:
“The problem is that the Workplace Regulations 1992 is a completely different piece of legislation to the Equality Act. And therefore the words 'man' and 'woman' do not refer exclusively to biological sex. They come under powers in the Gender Recognition Act and include trans people in whatever their adopted gender is. This is a very significant problem for the EHRC position, because it itself recognises that the Supreme Court ruling refers only to the Equality Act.”
The 1992 regs require sex-segregated toilets (reg 20), washing facilities (reg 21) and changing facilities (reg 24). They have to apply the Equality Act 2010 definitions of “sex”, “woman” and “man” because a breach of the regs will be litigated by a claim using the EqA. See for example the ongoing case of Peggie v Fife Health Board, or the Darlington Nurses case, both of which rely on the 1992 regs. You won’t find a lawyer that doesn’t expect those women to win their cases (if the employers don’t fold before judgment is issued).
Or Earl Shilton TC v Miller [2023] EAT 5. The lawyers in that case didn’t even have to rely on the 1992 regs, but the Judge did in his judgment (para 32).
Dunt also doesn’t understand the distinction between trans people with a GRC and those without. The Court didn’t have to expend much effort considering those without a GRC in its Judgment, because the law is non-controversial – “Their sex remains in law their birth sex” (para 11). The judgment was about trans people *with a GRC*. Yet Dunt’s commentary refers only to “trans people”, “trans men” and “trans women” without even recognising a possible distinction arising from a GRC.
Even those decrying the Judgment aren’t seeking to challenge this: trans activist barrister Robin White sees the corrective to the Judgment as an amendment to the EqA to define “woman” as including “a trans woman with a gender recognition certificate”: https://translucent.org.uk/clearing-up-the-mess-of-the-supreme-courts-trans-equality-ruling-an-easy-job-for-a-politician/. Even trans activists recognise that the law provides sex segregation regardless of a GRC, and even they only prescribe a change relevant to GRC holders.
Dunt’s position implies that the Judgment has changed the law. But there is no change in the law, only a restatement of what the law always was. The Interim Update informed businesses that they need to ensure sex segregated toilets are sex segregated. This is required by the Judgment. See for example at para 224 - the same reasoning will apply whenever any other legislation was considered by a court, because it would require reference to the EqA (and, now, the Court’s) definitions of sex. The EHRC’s interim update has no choice but to reflect this. Accusing the EHRC of “eradication” and “destruction” of rights is foolish.
Dunt’s fawns over the Good Law Project, which has lost nearly every case it has ever gone near. He should not rely on GLP’s website guff, and instead link to the actual papers in the case (and ask himself why GLP haven’t published these). Dunt calls the EHRC a “culture war campaign group”, a mislabelling of the EHRC, but is a factual description of the GLP. They’re not even a law firm – they are no longer regulated by the SRA, and Maugham is no longer regulated by the BSB - they’re lobbyists cosplaying as lawyers.
Dunt has misunderstood this issue from top to bottom. More damning for a journalist, he has missed the actual news line: an incorrect understanding of the law has permeated so comprehensively that when the law is (eventually) authoritatively stated, it elicits the kind of hyperbolic howl of disbelief exemplified by this article. The reasons for this include commentators gullibly taking activist lines at face value, and confidently (“with an unmistakeable legal swagger”) reporting them as fact.
Trans people have been lied to by their own campaign groups who have told them that they have rights that they in fact never held. To now discover the truth of that lie will obviously be hugely distressing for them. It is not possible to assuage that distress by telling more lies.
There is a job to be done to disperse the clouds of misinformation that settled over the past decade and more. The EHRC are belatedly setting about that job. They should be given assistance, not subjected to silly little hatchet jobs like Dunt’s.
Ian Dunt writes that "In every other piece of legislation, a trans man is still a man and a trans woman is still a woman. This is because the Gender Recognition Act states that someone with a gender recognition certificate has changed their sex "for all purposes"."
This is too simplistic. What the supreme court (SC) actually provides are conditions for disapplying the "for all purposes" clause which Ian Dunt references, more generally, in all sorts of other pieces of legislation over and above the Equality Act. These are conditions they argued are sufficient to motivate section 9(3) of the GRA, which allows the "for all purposes" clause of the GRA (section 9(1)) to be disabled in various circumstances.
Moreover, for these conditions to motivate section 9(3) in the case of a particular piece of legislation it is not necessary that the relevant piece of legislation explicitly notes that 9(3) is in operation, for the SC rejects the Scottish ministers argument that "only express wording or necessary implication applying that stringent test can disapply the rule in section 9(1)" (section 9(1) contains the "for all purposes clause"). In other words, it is not necessary for a given piece of legislation to assert expressly that the "for all purposes" clause does not apply for its purposes, in order that the "for all purposes" rule be legitimately disapplied. ("Section 9(3) will obviously apply where the GRA 2004 or subsequent enactment says so expressly. But express disapplication of section 9(1) is not necessary as we have explained.")
So when can the "for all purposes" clause (9(1) of the GRA) be disapplied, via section 9(3)? According to the SC,
“Section 9(3) will also apply where the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1)” [156].
Para 211 of the judgement then specifies that communal changing rooms and other places where "the autonomy or privacy and dignity of the two sexes" might be important (referencing at various places sanitary facilities (i.e, toilets)) are instances where allowing the "for all purposes" clause to govern the interpretation of sex would lead to a justified claim of incompatibility, incoherence or unworkability (of the kind which allows section 9(3) to apply, thereby limiting the "for all purposes" clause):
"In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment regardless of the possession of a GRC, in order to maintain the provision of single or
separate services for women and men as distinct groups in appropriate circumstances."[211]
The "for all purposes" clause most likely does not apply in the case of the Workplace Regulations 1992, for the basis for which it is permissible to have single sex sanitary facilities, along the lines of biological sex (the "autonomy or privacy and dignity of the two sexes") is just the same basis the SC provides for the permissibility of having single sex communal changing rooms (separate communal changing rooms for biological men and for biological women). It would therefore be exceedingly odd if section 9(3) were to operate in the one case (communal changing facilities) and not in the other (toilets in the workplace). Absent a strong argument for distinguishing these cases, Ian Dunt is simply mistaken to assert that
"The problem is that the Workplace Regulations 1992 is a completely different piece of legislation to the Equality Act. And therefore the words 'man' and 'woman' do not refer exclusively to biological sex.They come under powers in the Gender Recognition Act and include trans people in whatever their adopted gender is."
Moreover, it is important to emphasise that the default in UK law is that sex refers to biological sex. This is clear from the judgements Corbett v Corbett, Bellinger v Bellinger, A v Chief Constable of West Yorkshire Police, Croft v Royal Mail, Green v Secretary of State for Justice, For Women Scotland No.1.
This article is such as shame as I was a big fan on Ian's and an avid listener of Remainiacs / OGWN throughout Brexit and beyond. We can have different opinions about trans issues, but this article gets the law and the role of the EHRC totally wrong. Charles Arthur's covers much of what I have to say.
Ian is wrong to state that the Supreme Court judgement doesn't cover toilets. It does. The Equality Act is the piece of legislation that covers single sex spaces and services. The Workplace Regulations do stipulate that employers have to provide single sex toilets for a site of over 25 employees. The EA definitions of sex apply there.
Much of the rest of the article follows from this mistake. The EHRC can only provide guidance on how to follow the law, it can't set the law. If we were in the situation that Ian appears to think we are, then people could just say 'that's just guidance though, not the law'. But that's not so. It's because the EHRC can only provide guidance not consult on what the law should be that the consultation is limited in the way that Ian finds so frustrating. The law is clear, the consultation is only on how it should be explained.
Ian is wrong to suggest that organisations that follow the new guidance may find themselves in legal jeopardy. He suggest that this is due to the Workspace Regulations, which I've already covered above, and also due to the ECHR. This is also wrong and is the second major mistake in this article. Even if the ECHR were to find that the law as now clarified by the Supreme Court is wrong, it would still be the law. The ECtHR would tell the government to fix it, but the law would remain as it is until that was done. This is what happened in the Goodwin case, where the UK was found to be in breach of the ECHR by not providing a mechanism to change legal sex markers. The government fixed that by introducing the Gender Recognition Act.
Ian complains that, ‘Alasdair Henderson, who worked on a legal challenge against the NHS' use of puberty blockers’ was appointed to the EHRC. Says this makes him culturally right wing.
I’d say it made him concerned that vulnerable young people are not medicalised where there is no good evidence of benefit, and strong evidence of harm:
we know that 98% of kids in the GIDS trial of puberty blockers went on to cross-sex hormones - which we now know have enormous ill-health effects over time.
The young people and their parents who were failed by GIDS’ inadequate work were *denied the right to give/withhold informed consent* to the treatment they received. GIDS failed to do basic follow up and monitoring of outcomes. They started routine referrals for blockers when a trial on their use had barely begun. Then they withheld the results when the trial showed no benefit.
So I’d say that made Mr Henderson astute to the risks to young people and a good fit for a body which protects people’s rights.