It was impossible to miss the explosion of joy and relief from campaigners that greeted the UK Supreme Court’s verdict that the legal definition of a woman is based on biological sex.
“Yaaaaaaaaaaaaaaaaaaaaaaaaaaaaas,” tweeted For Women Scotland, the group that had challenged the Scottish government on the issue. There were tears, hugs and champagne. This ruling had been a long time coming, and followed years of abuse and threats towards those who stuck their necks above the parapets and refused to pull them in.
The UK’s highest court left no room for confusion in its finding. “The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary, a person is either a woman or a man,” it stated.
“The terms woman and sex… refer to a biological woman and biological sex. Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men.
“Although the word ‘biological’ does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman. These are assumed to be self-explanatory and to require no further explanation.”
A triumph, then, for those women who have fought for years against attempts to give trans people legal access to women-only spaces and services, and who have now secured a legal ruling that sex is biological.
The decision follows a prolonged, torrid period in Scottish politics, in which the row over trans rights vs women’s rights has led to deep divisions, physical confrontations and, arguably, played a significant part in the downfall of the dominant figure of the devolution era.
It was Nicola Sturgeon’s government that sought to alter the law through its Gender Recognition Reform Bill, which would have made it easier for people to change their gender. To say the politics of the issue were mishandled by the former first minister would be a considerable understatement.
From the start, Sturgeon adopted a hard-line position that accepted entirely the arguments of the pro-trans lobby. She refused to compromise, to water down her proposals, to take a moderate, step-by-step approach to advancing trans rights. Her critics were dismissed as transphobic, a stance that only poured fuel on the fire.
Sturgeon had previously been regarded as a sharp political operator, but on this issue her failings were manifold. She did not predict how controversial her plans would be, or understand that the depth of her opponents’ convictions would at least match her own. She didn’t account for the entry into the debate of JK Rowling, who used her fame and influence (and money) to light up the issue. She, and the many, many other women who refused to be cowed by grotesque levels of online and in-person hostility, have won. Sturgeon and the trans lobby have lost. And finally, Sturgeon misjudged the Scottish public who, far from being the “progressives” she thought them to be, largely sided with the protesters.
John Swinney, the current First Minister, who as Sturgeon’s deputy supported her position, will nevertheless be relieved by the Supreme Court’s decision. He has spent his first months in office clearing away the policy detritus his predecessor left behind her. There was a lot of it, but none was more damaging to the SNP’s reputation than the trans row, and it simply refused to go away. At least, with the law now indisputably clear, he can try to consign the issue to the past. Or so he hopes – there will still need to be changes by public bodies across Scotland to practices around women-only changing spaces, women’s refuges and more. The involvement of trans women in female sport – an issue that has done as much as anything else to draw public ire – must also be addressed.
Swinney will hope that by the time next May’s Holyrood election arrives, the electorate has consigned the row to the rear-view mirror. But it wasn’t just the SNP that got itself in a tangle on the issue. Labour, the Liberal Democrats and the Greens all supported the bill, a matter that continues to cause particular embarrassment to the Scottish Labour leader Anas Sarwar. On this, he went with what he thought was the tide of history, against the wishes of many in his party. It was a lost opportunity to differentiate Labour from the SNP that would have served him well today – it is not the only example of Sarwar displaying a conspicuous lack of courage in the face of what he believes to be fashionable opinion.
In the Sturgeon camp, there has long been an acceptance that the battle was lost, even if she publicly refused to reconsider her position or admit to her mistakes. The more honest among her followers concede that the whole affair was badly handled – that small gains for trans people rather than one giant leap would have been a smarter political approach. It is hard to look at the trans community today, at where it finds itself, and think it is any better off than it was before this all began. An issue that affected a tiny number of people was turned into a cause célèbre by its political cheerleader – but she has, if anything, set the movement back considerably.
[See more: Reform’s make-or-break election]
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