I've now scanned through the
judgement, to try and see what they mean by biological sex, and what they think about people who have had gender reassignment surgery.
They never explicitly say, so far as I can find, what they think about people who have had reassignment surgery. But since their criterion for biological sex is the sex you were assigned at birth, then it would appear that they think that people who have had reassignment surgery are still the sex they had at birth, for the purposes of the Equality Act. To me, at least, this seems pretty ridiculous in terms of using the toilets. I would have thought the objection that has been made to trans women using the ladies is their possession of a penis, not their chromosomes. But perhaps I'm wrong, and would welcome correction and further discussion if I am.
But then these are lawyers, and they have to read the legislation they see in front of them, and decide what it means, they are not in the business of deciding what is sensible policy. What they say is that the legislation says that there is M & F, and assumes that everyone can be split into those two categories. For the judges, that is what is written on your birth certificate. Indeed they point out that the EA does not alter the meaning of M & F as set out in the 1975 Sex Discrimination Act, so the Equalities Act is using old definitions of M & F from long before the trans controversies. They observe the law has not provided that you can be different sexes for different purposes within the purposes of the Act. So they have to read the law that there are two sexes, everyone is one or the other, and that applies for everything that the Act is about.
They make very many repeated mentions that sex in the Equalities Act is, as it is in the 1975 SDA, biological sex. But then they say that means the sex you were acquired at birth. So I don't really understand why they say "biological sex" so many times, because the sex you were assigned at birth is not the same thing as biological sex. Why do they keep on saying sex means biological sex, when actually it appears that they mean that sex means the sex you were assigned at birth. I suppose they want to call that biological sex so that they can assert that is immutable. But having gone down the route of biological sex, it was very lazy to have no discussion of what biological sex means. If they did, they would have to observe that there are multiple ways of making the distinction, which are not the same as each other, and that there are intersex people. They never mention intersex people. If you are going to say that sex means sex assigned at birth, that's fair enough. But when you say that's because sex is biological sex, then we really must have a discussion of the biology.
What they do mention, very frequently, is that only women can get pregnant, to the extent that one wonders if they are thinking that the potential for pregnancy is what defines a biological woman. But there is no mention of women who can't get pregnant. For if we take sex to mean sex assigned at birth, then there are plenty of women with no potential for pregnancy, and for a variety of reasons. Some are infertile, some have genetic issues, some have physical issues, and the physical and genetic issues are not perfectly aligned. Maybe the point of their repeated mention of pregnancy is to say only that no one who can get pregnant could be considered a man for these purposes. But they haven't been very careful to make it look like that was all they meant.
It seems to me that the people who are complaining that the law that this means that the Equality Act failed to make the changes required by the ECHR Goodwin case (much referred to in the judgement) are correct. The Goodwin case requires that Goodwin, who had gender reassignment surgery to, be treated as a woman. It is generally assumed that the Equalities Act was, in part, to become compliant with the ECHR judgement on Goodwin. They mention that many of the issues raised in that case have been removed due to the removal of discrimination in pensions and marriage, as I said in my first post, but they acknowledge that is not everything. So, they don't explicitly say so, but it appears to me they have made quite clear that the EA failed fully to respond to the Goodwin case.
So in fact, by saying what the EA means, they have in fact demonstrated that the EA is not fit for purpose. Though they don't explicitly say that, it seems pretty clear. I think it should now be understood that the EA failed adequately to deal with Goodwin, and we need some new legislation.
The Supreme Court has said the EA means that a person cannot be M for one purpose and F for another purpose within the Act. I don't think think that is a tenable practical way of running things. I think, at the least, people without penises should be accepted in the ladies - unless someone can give me a good reason otherwise. And that is not an interpretation in which everyone is the same M and F for every purpose. Which accords with the biology, so beloved of the court, which does not make that distinction unambiguously either.
