When the UK’s Supreme Court ruled last month that the terms “sex”, “man” and “woman” refer exclusively to “biological sex” in its Equality Act, thereby excluding trans people, it sent shockwaves around the world.
Trans women understandably feel threatened with the decision sparking widespread protests in the UK. In Australia, the decision inflamed tensions between groups such as Let Women Speak and pro-trans activists, who were recently involved in violent clashes in the Melbourne CBD.
The case emanated from an apparently worthy decision of the Scottish Government to tackle the under-representation of women on the boards of public authorities. The government set an objective of 50 per cent of board members being women, and declared that persons who had a Gender Recognition Certificate stating that they are female, would be recognised as women for the purpose of these board quotas.
With financial backing from author JK Rowling, among others, gender-critical feminist group For Women Scotland (‘FWS’) challenged the government’s inclusion of trans women, and those proceedings culminated in the judges unequivocally stating that they were not defining who is a man or who is a woman, but rather who is recognised as such by the Equality Act. That Actuses binary language (from 2010) that has not withstood the test of time.
It is unfortunate that much of the media has misreported the decision, with exaggerated claims such as, “the UK has finally figured out what a woman is” and headlines saying that “trans women aren’t legally women”.
The judges were undisciplined with the terminology they used in their decision (which runs to 87 pages) and failed to understand the complexity of the words that formed the bedrock of their reasoning. The all-white, majority-male panel of judges, who refused to hear submissions from any trans people or trans advocacy groups – which goes against fundamental principles of fairness and justice – based their decision on a concept of “biological sex”, which they said “describe[s] the sex of a person at birth”.
But this is a faulty approach, as “biological sex” is not a term used in the Equality Act 2010, which only uses the term “sex”. The Court nevertheless used this phrase 66 times in its judgment, and took it upon itself to provide a simplistic definition of the term, that is contrary to scientific and medical evidence. Indeed, doctors at the British Medical Association have described the court’s decision as ‘scientifically illiterate’.
Babies are assumed to be a particular sex when they are born based only on the appearance of their genitalia. That sex is then assigned to them and recorded on their birth certificate. However, it is widely accepted that sex is not a simple binary classification based solely on genitalia at birth.
Sex encompasses a multitude of characteristics, including chromosomes, hormones and secondary sexual characteristics. Around the world, approximately one in 2,000 babies are born intersex, that is, they have innate sex characteristics that do not fit medical norms for female or male bodies. For these reasons, some countries, such as New Zealand, allow parents to record a child’s sex on their birth certificates as “indeterminate”, while others (e.g. Germany) allow parents to leave the sex category blank.
The scientific community recognises that sex is a spectrum, and while biologists have been building a more nuanced view of sex, the UK decision demonstrates that judges there are yet to catch up. The Court stressed that its role was one of statutory interpretation i.e. to interpret the words in the Equality Act, but then went off on a tangent, using and defining words not in the Act, which undermines the entire decision.
The decision is also flawed in its findings in relation to the provisions of the Equality Act that prohibit discrimination on the basis of breastfeeding. The judges found that the prohibition on discriminating against women who are breastfeeding supported their finding that women means only those born female, saying that breastfeeding “obviously applies to biological women only”. However, this is again flawed thinking and contrary to multiple studies that have found that trans women can successfully breastfeed.
It will take some time for the practical implications of the ruling to be fully realised, but for now, it is being interpreted as meaning that trans people can be excluded from single-sex spaces such as toilets, change rooms and women’s refuges, without violating the Equality Act, which is actually going beyond the limited scope of the judgment. This highlights the urgent need for Parliament to modernise the UK Equality Act to reflect contemporary knowledge and understandings of sex and gender.
While the UK Equality Act uses outdated binary language, the equivalent legislation in Australia does not. The Sex Discrimination Act 1984 was updated in 2013, to remove all binary language.
As the Australian Sex Discrimination Commissioner, Dr Anna Cody, said, “The laws in the UK are not the laws of Australia.”
This is reflected in the case of Tickle v Giggle, where the Federal Court declined to consider, or use, the term “biological sex” . That language was used only by the expert retained by the losing party, Giggle for Girls Pty Ltd, and the Court stated it was not assisted by arguments about “biological sex”.
As a result, the law in Australia is that determining the sex of a person may require consideration of biological and physical characteristics, legal recognition and how they present themselves and are recognised socially. Unlike the UK, Australian courts have determined that sex is changeable, and a person is not forever defined by what was officially recorded at their birth.
Australia should be proud of the fact that, unlike the UK, we have contemporary anti-discrimination laws that protect all women, and courts that are willing to interpret and apply the laws in ways that are consistent with human rights norms and modern science.