It’s taken me a while to get around to reading this because I found the media reaction to it profoundly depressing, but I will attack it on its merits, its philosophical weakness and lack of intellectual rigour.
The TERFs are crowing, with backing vox from a spectrum of authoritarian reactionaries: Tories, god-botherers, Bolsheviks and fascists. Media and politicians breathe a sigh of relief, “a victory for common sense”, insofar as they no longer need think before they open their mouths. Anecdotally we hear of trans workers having their rights curtailed at work. Toilets are allegedly being policed (how?) The government has issued guidance, but there has never been such a thing as a single-sex toilet anyway, regardless of the silly symbols they put on the door. Motorway service stations advertise that their cleaners can be male or female, the same applies in factories.
So has the world changed? No, it hasn’t; the judgement of the Supreme Court on appeal from For Women Scotland Ltd – hereinafter referred to as the TERFs – v The Scottish Ministers, is extremely narrow. It deals with the intended meanings of words as used by parliamentarians, (not renowned for their intelligence or integrity) when they enacted the Equalities Act in 2010, and the legislative competence of the Scottish government under devolution – that’s it.
Who are the Supreme Court? The upper echelon of the judiciary, drawn from a narrow and rarefied stratum of society – toffs, in other words. Until August 2009 it was the Appellate Committee of the House of Lords, an arcane and archaic institution. The second largest legislative chamber outside the People’s Republic of China, and the only one with reserved seats for the clergy, apart from the Guardian Council of the Islamic Republic of Iran, its membership peaked at 1330 in 1999, despite the fact you can only get 400 toffs in there at a time, and its largest ever vote was 631.
In the interests of separation of powers between Parliament and the courts, the Justices were moved out of the House of Lords into another building. Only two years later, a Working Class insurrection burst onto the streets of Britain, the politicians panicked, and judges slavishly served the executive by incarcerating poor people for gathering bottled water, babies’ nappies and sanitary wear off the pavement.
From its own website: “By moving to the historic setting of the former Middlesex Guildhall, the Supreme Court took its place in the cluster of official state buildings that surround the edges of Parliament Square; the Houses of Parliament, Westminster Abbey and the Treasury.” So I think we all know what we’re dealing with. The function of the judiciary is to maintain the state’s monopoly on violence, enabling it to guarantee property and enforce debt, in the interest of the prevailing mode of production.
The judgement rests on the inherent inadequacy in legislation. It’s incredibly self-referential, as would be expected from the court of final appeal. Their lordships quote each other obsessively. It draws on semantics interpreted from earlier laws, in particular the Equal pay Act of 1970*, the Sex discrimination Act 1975, and the Gender Recognition Act 2004, all examples of the ruling class scrambling to catch up with real life. It shows up how badly drafted the GRA and EA actually were, the EPA and SDA belonging to a different era. As I get older, I see language used in government documents of a standard that would have earned me a thick ear when I was at school. Case law then, in this and all examples, is the pronouncements of thickies, interpreted by toffs.
* Equal pay for men and women has yet to be achieved after fifty-five years, and those who care for children and other dependents are disadvantaged throughout life.
The toffs are keen that legislation shall be framed in words easily understood by the proles, the better to abide by the law, “Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly.” Elsewhere it states that words shall have their “ordinary meaning”. Does that imply they must pander to popular misapprehensions? It forces me, against my will, to delve once again into etymology.
Life has changed since 2010, let alone 1970. My own views on sex and gender have been greatly overhauled and refined since the unseemly fracas at the 2017 London Anarchist Bookfair. Some old friends have transitioned, and to my astonishment, a couple of geezers I’ve known for years confided that they had been assigned female at birth. If these chaps ever set foot in a ‘ladies toilet’ they are going to scare the taxpayers! So I did a bit of research, reading scientific journals and papers rather than polemics.
The world I grew up in had more in common with the First World War than the present day. Look at a crowd scene from the mid-20th century; you will see only two kinds of people, and subject to class, most likely you will only see two kinds of hat. That period was devoted to the industrialised slaughter of nameless, faceless humanity in the name of ideology. Individual identity was not respected, or even recognised. If we are really going back to that, it’s not only the trans community who will regret it.
In 1970 it was legal to exclude British subjects of the global majority from premises on the grounds of their skin pigmentation. The Offences Against the Person Act dates from 1861, a time when many parliamentarians believed in creation, race as an objective category, and the literal existence of heaven and hell. In its original draft it outlawed “buggery” and abortion. The government are only now looking at the Vagrancy Act of 1824, a component of the Great Expropriation.
Can the understandings of parliamentarians be relied upon? In modern times we had a Prime Minister who was a practicing Hindu, presumably believing in one of those beings that has three arms off each shoulder joint (draw the linkage for me please) politicians who think virgins can give birth, and that a dead hippy came back to life and lives in the sky, drawing on the cosmology of the iron age. If you could make wine out of water we’d all be doing it – common sense, my arsehole! I’m quite comfy with these folk living according to their belief systems, but don’t go lecturing me on biology, or engineering.
Apart from trans people, the other category I feel sorry for are biologists, who must be heartily sick of their studies being misrepresented by slack-witted humanities graduates. The “ordinary meaning” of biological terms I would expect to be defined by biologists. The Supreme Court adopted a few novel definitions of the adjective “biological”, all borrowed from TERF culture. Let’s see what the dictionaries have to say:
The Cambridge dictionary offers this:
“Biological (adjective) connected with the natural processes of living things”
Collins:
“Biological (adjective) is used to describe processes and states that occur in the bodies and cells of living things.”
And, “Biological (adjective) is used to describe activities concerned with the study of living things.”
The O.E.D. wanted me to pay so they can get stuffed.
The Britannica Dictionary:
“1: of or relating to biology or to life and living things”
“2: related through birth — used to distinguish the parents who gave birth to a child from the parents who later adopted the child
The online Biology Dictionary says:
“Biology is the study of living things.”
But offers no definition of “biological”
The judges coin the term “biological sex”, and define it as a category assigned at birth, which must be based entirely on observation of the external genitalia. From this they extrapolate that gendered words can have a “biological meaning” which is poppycock. Our learned friends’ confusion may arise from the commonly accepted term “biological parents”, meaning the suppliers of gametes that cause conception. This is entirely logical*, since “biological sex” is universally understood to be the process by which two gametes form a zygote and it develops into a new individual. That’s all it’s ever meant, to me anyway.
* Mind you, where the foetus is carried by a third party, having undergone the inarguably biological processes of implantation, gestation and delivery, if they laid claim to this term, I’d say they had a point.
I don’t want to keep repeating myself, so if you are interested and would like to read some actual biology, I’ll put some links at the end to the work of proper scientists. Plus you can read anything I’ve ever written on this blog. You’ll find that biology recognises reproductive physiology, chromosomal sex, genetic expression of sex chromosomes, and the social and psychological constructions of gender. None of these are binary, rather a continuum. So I will say, once and for all, that the phrases “biological sex”, “biological male/female”, “biological man/woman” and the idiotic “biological meaning” are in this context utterly meaningless. Therefore I contend that the basis for this Supreme Court Judgement is entirely bogus. If these fools worked for me I’d sack them – oh, wait…
The judges conclude that sex and gender are used interchangeably in law, without any analysis of the etymology of those terms. Until recently, gender was a grammatical term, applying to languages in which words were deemed male or female, for linguistic rather than ‘biological’ reasons. In industry, pipe fittings and connectors, electrical, pneumatic and hydraulic were categorised by gender, possibly because it sounded more polite than sex. But gender is complicated; a ‘male’ D connector is the one with turned pins in it rather than sockets, so the female one enters the housing of the male. I doubt a judge would know that.
The gender binary is highly Eurocentric, as many cultures do not recognise it. The World Health Organisation has this to say:
“Gender refers to the characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviours and roles associated with being a woman, man, girl or boy, as well as relationships with each other. As a social construct, gender varies from society to society and can change over time.”
Gender acquired its modern connotations thanks to mad scientist John Money, who believed babies with ambiguous genitalia could be assigned a gender surgically applied, then conditioned to live in it. He caused so much misery. Controversy rages amongst academics over whether expressions of gender are the cause, or the result of internal gender identity. Leave them to it I’d say, it’s whatever works for you.
Those who regard sex as an immutable characteristic all hang it on the possession of a penis, or a vagina, the two being mutually exclusive. I suppose they’ve never been to Frankfurt or Amsterdam, never mind. These are precisely the characteristics that can be surgically altered, which only leaves the moment of birth for their essentialism to cling to. Although an important milestone in the development of an individual, it has no more scientific significance than meiosis, mitosis, puberty, maturity, senility or death. Birth is habitually fetishised by nationalists and god-botherers, who like to claim anyone who pops out on their manor. I don’t know when the easily understood “sex-change operation” became “gender reassignment surgery” but this has done a great deal to muddy the water.
There are no points in life for being thick, even for Lord Snooty and his pals; nevertheless, they have uncovered a serious flaw in these laws and the way they interact. Firstly, equalities legislation is a reserved matter under the Scotland Act, so that the Scots parliament is not allowed to deviate from interpretations of these laws set in Westminster. There are two Protected Characteristics at issue here, sex and gender reassignment. Most of the sex provisions relate to women, and mainly deal with gynaecology and reproduction, maternity etc.
Because prior legislation treats sex as binary, it cannot be otherwise, regardless of empirical data. Gender reassignment is defined thus:
“(1) A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.
The controversy arose when the Scottish Parliament set positive quotas for the appointment of women to certain public bodies. A transwoman would count towards these quotas:
“if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.”
The TERFs appealed to the Scottish courts who decided that the Scottish Parliament had exceeded its authority. It was deemed to have changed the statutory definition of the protected characteristic “woman” which is a reserved matter (to Westminster). I covered the historical etymology of “woman” in an earlier blog post. I note the Scottish Ministers used the phrase “biological sex” in a letter to the TERFs solicitors so they must take some responsibility for this bilge.
In response the Ministers rowed back, on advice of the Equality and Human Rights Commission (EHRC), they asserted that a person who had been issued with a full GRC such that her acquired gender was female, had changed sex so that her appointment would count towards the quota. Having painted themselves, and possibly the entire trans population of the UK, into this tiny corner, they left the field to the TERFs.
A GRC doesn’t change anything about a person; it slightly modifies their relationship to the state in ways entirely determined by the state. It was easy then for the law Lords to reduce the new Scottish position to the absurd by pointing out a few anomalies. For example, a transman with a GRC who became pregnant, would lose the protected characteristic of sex in respect of maternity rights and so on. None of these rights would be covered by the protected characteristic of gender reassignment. To make an equal pay claim under EA10, a worker must identify a comparator of the “opposite sex”*, acquisition of a GRC would reverse the position in either case. Equal pay still not sorted out?
* Another anachronism, in what sense are sexes opposed to each other?
The toffs also had a good think about the definition of a lesbian. Oh what fun they must have had with that one!
If lesbian facilities are for women who are attracted to each other, nobody is going to suddenly become more attractive by brandishing a GRC. Never mind, if transwomen are invited to the party and some lesbians don’t fancy them, that’s too bad. I’ve never been to one where I expected every attendee to like me.
Politicians are no brighter than they look so their enactments are full of unintended consequences. Section 1 of the GRA 2004 provides that a person aged 18 or over can apply for a GRC by satisfying four conditions, one of which is a medical diagnosis of “gender dysphoria”, which is a psychiatric condition (the other three are obvious). Remember when ‘homosexuality’ was listed as a mental illness, alongside bestiality and necrophilia? It wasn’t that long ago. Is it any wonder that most transpeople don’t want to jump through this hoop?
I don’t know if the toffs sympathise with the TERFs, and I doubt they have much contact with the LGBTQAI community. They insist their judgement does not impinge on the protected characteristic of gender reassignment but the backlash has started already; a lot of sorry-arsed invertebrates are out there looking for someone to kick. The Transport Police have announced that henceforth, transwomen will be searched by male officers; this will include fully transitioned, female-bodied women, with or without a GRC. Can you see anything there but an act of petty spite, leading to humiliation, profound psychological damage, and given the character of the average policeman, risk of serious sexual assault? You don’t liberate one group by persecuting another.
Rights, by definition are only ever granted by entities with the wherewithal to withhold them. The state grants rights in response to social unrest, industrial stoppage or other interference with the means of production, and sometimes to bring it in line with overseas trading partners. It likes to remind us that rights can be taken away at any time. Equal rights are to emphasise that all are equally subject to the state, but the state knows full well that not all have the same value to it, or the bourgeois market.
This can’t be the end of the story, until society has matured enough not to need definitions of sex and gender, self-identification serves most purposes. Until it has outgrown the division of labour in production and reproduction. Until the Working Class is freed from the imperative to replicate at its own expense, cranking out wage-labourers to feed the engines of capitalism or deliver groceries to toffs and TERFs alike, or go to war for the bosses’ interests.
We wouldn’t need any of these semantic gymnastics if people didn’t discriminate against each other in the first place, if the capitalist mode of production did not place different values on various forms of human expression.
In 1963 Haile Selassie addressed the United Nations referring to the bogus category of ‘race’, but his words are equally apt applied to sex and gender:
“that until there are no longer first class and second class citizens of any nation;
[…]
until the basic human rights are equally guaranteed to all
[…]
until that day, the dream of lasting peace and world citizenship, and the rule of international morality will remain but a fleeting illusion, to be pursued but never attained.”
In 1936 he had told their predecessor, the League of Nations:
“It is us today. It will be you tomorrow.”
Until that day, I’ve got to say: War!
Appendix.
The online Biology Dictionary defines many terms used in biology, but sex is not among them; it does have this to say about sexual dimorphism, a TERF obsession:
“While humans do have some sexual dimorphism, we are near the monomorphic side of the scale.” It postulates that dimorphism results from sex-selection, whereby heterosexual individuals choose a mate, consciously or unconsciously, to reproduce with.
Who but a politician requires a definition of sex? Biologists have done their best, but the rulers have chosen to ignore their efforts. The following links all deal with sex as construed by the life sciences:
https://sciencebasedmedicine.org/the-science-of-biological-sex/
https://www.sciencenews.org/article/biological-sex-male-female-intersex
https://www.psychologytoday.com/us/blog/lies-and-deception/202412/what-is-biological-sex
https://www.asrm.org/advocacy-and-policy/fact-sheets-and-one-pagers/just-the-facts-biological-sex/
https://disruptingdinnerparties.com/2014/04/08/take-the-red-pill-the-truth-behind-the-biology-of-sex/
Debunking a common TERF argument:
https://anarchasteminist.wordpress.com/2017/12/07/transgender-self-identification-and-data-gathering/
And my stuff:
All right let’s have it then! (That debate about gender)
Thoughts on the Divisional Court ruling preventing the prescription of puberty-blocking medication to transgender children.
Delayed puberty for trans kids – part two
Patriarchy: A design for oppression.
Freedom, equality, and the law.
June 12, 2025
Categories: Anarchist, Ethiopia, Feminist, Scotland . Tags: All fucking wankers, Anti fascist, anti-capitalist, bent coppers, Freedom, Legal, LGBTQ, NHS, TERFs, toffs, Women's history . Author: wessexsolidarity . Comments: Leave a comment
Wessex Solidarity