A win for women

MARY REICHARD, HOST: Coming up next on The World and Everything in It: Defining “woman.”

Last week, the UK’s Supreme Court ruled that the word “sex” in its Equality Act refers to biological sex. That 2010 law was meant to curb discrimination, but in recent years, it’s clashed with newer efforts to accommodate gender identity.

MYRNA BROWN, HOST: The ruling is narrow, only referring to one piece of UK law, but it could reshape policies around single-sex spaces in that country.

WORLD’s Mary Muncy reports.

MARY MUNCY: Last week, campaigners gathered outside of the UK Supreme Court… celebrating a win for women’s rights.

SUSAN SMITH: This is not about prejudice or bigotry.

Susan Smith… is a campaigner with For Women Scotland, or FWS… the plaintiff and victor in the case.

SMITH: It's just about saying that there are differences and biology is one of those differences. And we just need protections based on that.

The Equality Act of 2010 is a piece of British legislation that aimed to protect people from discrimination. It outlines rights to separate spaces for women in vulnerable places… like changing rooms, prisons, and sports.

I talked to Smith before the ruling came down.

SMITH: So this started with a piece of legislation that the Scottish Government passed in 2018 and it wasn't really very well remarked upon at the time.

It was supposed to balance the number of men and women on public boards. But they defined “woman” as anyone identifying as such.

SMITH: They decided to define women on the basis of self identification.

So FWS took them to court, and won… but the Scottish legislators weren’t done.

SMITH: The complication arises when you throw in the issue of a GRC.

That’s a Gender Recognition Certificate. Anyone over 18 in the UK can get one if they have a gender dysphoria diagnosis, have said they are the opposite gender for at least two years… and plan to do so permanently.

After For Women Scotland won their first case, the Scottish legislators said they should count anyone with a GRC as a woman… and FWS took them back to court.

SMITH: The Gender Recognition Act was passed before the Equality Act, and it spoke about that a person with a GRC, their Sex is changed.

Meaning any mention of “woman” in the Equality Act could apply to a man with a GRC identifying him as a woman and vice versa… for all purposes… including accessing single-sex spaces and using government pregnancy resources.

Practically, the Gender Recognition Act meant anyone saying they were a woman would be viewed as such… because whether or not someone has a GRC is private under UK law.

… and that had some confusing implications.

SMITH: One of the things that struck us was that this would mean that trans men who had fallen pregnant would not be covered by protections for maternity, and that seemed ridiculous.

Not only that, but men who identify as women would have to be allowed into women’s breastfeeding services and lesbian groups.

SMITH: If you read through the entire equality act as saying that this, this piece of paper, changes a person's sex for all purposes, then it makes a mockery of some of those services.

And interpreting it any other way would create a two-tier system.

SMITH: Because it means that people with a GRC are entitled to use services and spaces for the opposite sex, but people without are not.

Inside the courtroom, the lords agreed.

JUDGEMENT READING, LORD PATRICK STEWART HODGE: As a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity and to protection from risks specifically affecting women, can only be interpreted as referring to biological sex.

They made a point to say they were interpreting what the legislators had written… not trying to protect one group over another.

HODGE: Incoherence and impracticability arise in the operation of provisions relating to single sex characteristic associations and charities, women's fair participation in sport, the operation of the public sector, equality duty, and the armed forces.

There are several cases currently moving through the UK’s court system that may be affected by the ruling.

One of them is a case of a nurse who didn’t want to share a changing room with a man who said he was a woman.

FIONA MCANENA: She eventually had to leave her job.

Fiona McAnena works with a charity handling the nurse’s case called Sex Matters.

MCANENA: Her behavior was regarded as transphobic. Her privacy was not regarded as important.

The Equality Act clarification might mean she wins her case… but it won’t solve every dispute.

LYNNE PINCHES: I think that's going to help a lot of sports, but unfortunately, it's not going to help in our legal case.

Lynne Pinches is a professional pool player in the UK. Two years ago, she walked out of a pool match against a man identifying as a woman… Now she’s suing the league based on fairness.

She says the ruling doesn’t apply to her case… because the Equality Act only applies to sports where physical strength and stamina are major factors.

PINCHES: Things like pool darts and various other sports are classed as precision sports. They're still going to have to prove that their sport, to lawfully exclude, is gender affected.

Right now, she’s arguing that there are physical factors in pool. She says a player can win off a good break.

PINCHES: My 10-year-old son's break speed is currently eight—His highest is 18.82 miles per hour, and my highest is 16.02 and he's a 10-year-old boy.

Pinches says walking out of the match two years ago was one of the hardest things she’s done… She had just qualified to play as a professional… but turned down a tour because she says she would concede again if she came up against a man.

PINCHES: Seeing those, the young ones, the young girls lose to the to the transgender players, and just be watching that. It was heartbreaking. So I couldn't carry on doing it anymore.

Smith, McAnena, and Pinches say they’re not advocating for discrimination against people struggling with gender dysphoria… but they do believe men and women are different and that women need male-free spaces.

PINCHES: People say, ‘Oh, it's just a game of pool.’ But when you meet so many people over a period of 37 years, you suddenly remove yourself from that, or you're removed from that, you lose all your friends and like a big family to you. So it's part of my life, part of my heart, and I'll fight— that was a hill I'm prepared to die on—to not see that ruined.

Reporting for WORLD, I’m Mary Muncy.

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