The UK government hid behind the Supreme Court over the gender question
The debate over what a woman is results in anger from all sides. But at the heart is a political issue, so why does it feel like the Supreme Court was used as a scapegoat?
Last Wednesday, every microphone and camera lens was pointed toward the Supreme Court, waiting for the verdict of the final case the Justices were set to announce that day.
Under the Equality Act 2010, the UK’s most senior judges had to define what a “woman” was.
However, just moments before the ruling was revealed, Lord Reed told the audience, “When we announce our decision on this case, some will be pleased, some will be disappointed.”
The court clarified that its role was to establish the correct interpretation of the Equality Act and not to adjudicate the arguments in the public domain on the meaning of gender or sex.
Lord Hodge led the ruling in For Women Scotland v The Scottish Ministers, revealing the court unanimously allowed the appeal as it held “man”, “woman”, and “sex” in the Equality Act refers to biological sex.
The justices cautioned that their ruling should not be considered a victory for either side.
However, the ruling has since caused even more division, from campaigners’ celebrations outside the Supreme Court to thousands of trans rights activists showing up to a protest in the capital.
Over the last week there have been lots of people on social media attacking the Supreme Court.
Even Scottish Green MSP Maggie Chapman was criticised by lawyers after she was filmed saying: “Bigotry, prejudice and hatred coming from the Supreme Court”.
The top court in the UK didn’t go out of its way to bring this case; it was an appeal by For Women Scotland after both the Outer House and Inner House in Scotland dismissed their case.
Like all the many applications the court receives, as the final legal step in the land, the Justices will allow cases that raise “important points of law”. The court’s job is to interpret and apply the law.
From the tone of the Lord Justices to the careful wording of the judgment, it was clear the court did not want to be in the middle of a heated debate.
This should have been the government’s role, but Prime Minister Sir Keir Starmer has been treading carefully around matters relating to gender, as it even divided his party and Labour supporters.
Starmer’s flip-flopping about his position on the gender question has been well documented.
Back in 2021, Rosie Duffield MP said only women have a cervix, to which Starmer said it was “not right” for her to say that. However, three years later, he did a U-turn, saying, “Biologically, she of course is right.”
Duffield MP has since left the Labour Party and became an Independent.
Since the Supreme Court ruling, the Prime Minister told ITV News, “I actually welcome the judgment because I think it gives real clarity. It allows those that have got to draw up guidance to be really clear about what that guidance should say.”
“It’s real clarity in an area where we did need clarity; I’m pleased it’s come about,” he added.
He also declined to repeat his previous statement, “transwomen are women,” instead asserting: “A woman is an adult female – the court has made that absolutely clear.”
As Elizabeth McGlone, managing partner at didlaw noted, [Starmer] was “only emboldened to say this with the support of the highest court in the land.”
Yesterday, at the first Prime Minister’s Questions (PMQs) following the ruling, Tory leader Kemi Badenoch accused Starmer of lacking “moral courage” on transgender issues, adding he didn’t “have the balls” to say where he stood.
The ruling is not a definite answer as it is such a complex issue; even businesses have been warned not to succumb to pressure and to “pause and understand their position.”
Emma Bartlett, partner at CM Murray explained: “The judgment has clarified what terms under the Equality Act 2010 mean. It isn’t intended to take away rights from trans people. Discrimination law is complicated though.”
But what is definite is that as the country’s leader plays hide-and-seek behind the Supreme Court, this topic will not go away anytime soon.
Eyes on the Law is a weekly column by Maria Ward-Brennan focused on the legal sector.