[T]he court in For Women Scotland was quite clear in stating that just because some biologically male people might have legally changed sex to female, that by no means entails that all biologically male people undergoing the process of gender reassignment can be treated as female.

The court specifically noted that the Equality Act of 2010

“… maintained the distinct categories of protected characteristics [of sex and gender reassignment], and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate under the 2004 [Gender Recognition] Act were limited.”

In other words, the court was quite clear in saying that, although a transgender person undoubtedly qualifies for the protected characteristic of gender reassignment, there is no legal authority

“… for the proposition that a transgender person possesses the protected characteristic of the sex in which they present.”

Accordingly, the cases put before the court

“… do not vouch the proposition that sex and gender reassignment are to be conflated or combined.”

Rather, the protected categories of “sex” on the one hand and “gender reassignment” on the other are separate and distinct. You don’t automatically (or arguably ever) become a “woman” for the purposes of the protected characteristic of “sex” by means of belonging to the separate protected characteristic of “gender reassignment” while being a biological man.

In other words, in the law of Scotland as it stands today, and with the possible exception only of those with a gender recognition certificate, “transwomen” are not women.

The law, then, is directly contrary to the “trans inclusionary” funding policies of the Scottish Government, which have for years now forced women’s organisations to include biological males on the grounds that any biological male at any stage of the gender reassignment process has the protected characteristic of “woman” under the Equality Act and is thus entitled to use women’s single sex services.

(I should say for completeness that I have seen it argued that the entitlement of biological males to use women’s single-sex services arises because to exclude them would be to discriminate against their “gender reassignment” characteristic itself. This is obvious gibberish, as the court’s decision confirms. No-one is arguing that biological males should be excluded from women’s services because they’re undergoing gender reassignment. Self-evidently, it’s because they’re biological males.)


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