Two things stood out as I followed the case on day two: that women (in Scotland in particular), were being gaslit by the Scottish government; and lesbians were, in effect, being told by the Scottish government that they were no longer protected in law according to their sexual orientation. By virtue of a legal piece of paper, it was argued, a “heterosexual male” could become a lesbian woman overnight. These were the words of Scottish government lawyers.
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Watching proceedings felt at times like being in a strange parallel universe. Questions from the judges and answers from the legal teams were incomprehensible, such was the mess that both were getting into around language. There were sentences which began, “If you exclude a pregnant man…”; sex and gender were muddled; natal women and trans women were often confused; and a new concept of “certificated sex” was introduced. Lawyers representing the Scottish government seemingly had no idea how someone showed they had been “living in their acquired gender” for the purposes of gaining a GRC. Would a natal man with a GRC saying they were a woman, but who presented as a man, be discriminated against “as a woman”, one judge asked, if people perceived them to be a man? Crawford said she’d like to think about that question over lunch. It’s easy to laugh, but the outcome of this case is fundamental to the rights of women, and of those who are same-sex attracted.
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And so to the erasure of lesbians. One of four interventions in the case was granted to “the Lesbian interveners” – a group of three organisations representing the rights of lesbian women. Among their arguments was that the Scottish government’s view of the law denies lesbians the right be protected as a group defined by their sexual orientation – one of the nine characteristics listed in the Equality Act.
Crawford confirmed to the court that a lesbian association of 25 members or more would not be able to restrict membership to those who are born female. Natal males – in the language of the court, meaning those born male – with a GRC who were attracted to females could not be refused entry. The only way for these trans women to be excluded would be to regroup as an association which seeks to advance a protected philosophical belief: in this instance, the gender-critical belief that sex is immutable. Those inside the court building have reported “audible intakes of breath”.
The Supreme Court judges will now decide, with a judgement not expected until well into the new year. It seems to me that the Scottish government’s interpretation of “sex” in the Equality Act is unworkable in the real world. Indeed, it is one where everyone loses: women, trans people, and gay, lesbian and bisexual people.
Source: The Scottish government is ignoring women’s rights – New Statesman