I suspected this might end up here. It's worth reading the full judgement (PDF warning), or at least the section "Summary of our reasoning" at the end. This is relatively clear language, and the...
Exemplary
I suspected this might end up here.
It's worth reading the full judgement (PDF warning), or at least the section "Summary of our reasoning" at the end. This is relatively clear language, and the summary is fairly helpful.
The most important thing is that this is not saying that "women" means "biological female" under all law. The question is specifically what the Equality Act 2010 is referring to when it uses the terms "man" or "woman". From relatively early on in the document:
It is not the role of the court to adjudicate on the arguments in the public domain
on the meaning of gender or sex, nor is it to define the meaning of the word “woman”
other than when it is used in the provisions of the [Equality Act] 2010.
Their logic is roughly as follows:
The existing legislation before the Equality Act used "man" and "woman" to refer to biological sex, and this is how it has consistently been applied before.
The Gender Recognition Act (from 2004) allows a person to change their gender, but doesn't redefine or change the terms "man" or "woman". The act does say that someone with a gender recognition certificate legally has the acquired gender, but the court argues that it merely implies they have the acquired sex. Specifically, they argue that when the GRA uses the terms "sex" and "gender", it's using them interchangeably, which fits with the use of language at the time.
Because the Equality Act doesn't itself define the terms "man" or "woman" in a way that suggests it should be interpreted any differently from existing legislation (and because the existing legislation defines those terms in terms of gender), the court should assume the definitions from existing legislation apply. As far as I can tell, this isn't a universal rule, but rather it's a result of the Equality Act being the type of legislation that it is.
Even if those terms didn't apply, the Equality Act uses the terms "man" and "woman" to refer to people's biological sex in certain situations (such as when discussing pregnancy, breast-feeding, etc). The court argues that if "man" and "woman" get interpreted more broadly than biological sex, it makes those sections of the legislation make no sense. The full document provides a number of other examples here, some more convincing than others.
Trans people still 100% exist — the Equality Act includes explicit protections for them, and the Gender Recognition Act affirms their existence.
In conclusion, when specifically asking who gets to be considered a "woman" for the purposes of the Equality Act, the court rules that this term only refers to biological women.
Point 4 feels like the shakiest point here, and produces a bunch of other weird effects — for example, a trans woman in a relationship with a cis woman would not be considered a lesbian for the purposes of the Equality Act, despite them appearing so to other people. However, I think this isn't necessarily a flaw of the judgement, and is more a flaw of the legislation. The core issue is that the legislation uses "woman" to define a mix of biological and gender-based reasons for validly distinguishing between men and women. For example, on the topic of pregnancy, it makes sense that only biological women of any gender should be afforded those protections. However, for, say, creating safe spaces for victims of gender-based violence, that doesn't necessarily apply.
The ruling does point this out (and also points out that the EHRC has also been pointing this out for years), but unfortunately that's a problem that can only be solved by legislation, and not by courts.
Short term, I suspect this is going to get championed as a victory for the right (it already is), despite still affirming that trans people exist, that trans men are men, and that trans women are women (outside of the specific context of the Equality Act 2010). Beyond that, I think the Government really needs to legislate to fix the EA. Unfortunately, right now, I don't think they're willing to take on that job, just because of how toxic it will seem to the electorate.
Thank you for the link and breakdown. Pardon my ignorance of UK judicial systems, but does this establish a precedence for other courts to declare "woman" means "biological female" in other...
Thank you for the link and breakdown.
Pardon my ignorance of UK judicial systems, but does this establish a precedence for other courts to declare "woman" means "biological female" in other rulings on laws unrelated to the Equality Act? Could those rulings ignore the part of this ruling that affirms trans existence?
I believe this is a relatively specific ruling, and doesn't establish much in the way of precedence. So other laws should be "safe" from this decision. That said, the Equality Act is pretty...
I believe this is a relatively specific ruling, and doesn't establish much in the way of precedence. So other laws should be "safe" from this decision. That said, the Equality Act is pretty important, and as I understand it, a lot of questions about which spaces trans people are allowed to exist in essentially come down to how to interpret the Equality Act, which this ruling will affect.
My hope is that the Government take the hint and fix the EA, but like I said, I don't think that's going to be a battle they're willing to face right now, nor do I think the fixes that are needed will be popular.
I think it's technically correct as it stands, and making it more correct might make it harder to parse. But I never know how to write a good title for these sorts of things.
I think it's technically correct as it stands, and making it more correct might make it harder to parse. But I never know how to write a good title for these sorts of things.
My first question is, what is a “biological woman?” My second question is, how will this be enforced? I’m a cis straight male, so I always tread lightly in these areas and look to the communities...
My first question is, what is a “biological woman?” My second question is, how will this be enforced?
I’m a cis straight male, so I always tread lightly in these areas and look to the communities most impacted to help guide my thinking. I am, however, very much into equitable treatment of all people across the globe. And this is pretty disgusting. Also, good on Scotland for making the law in question. Maybe Scotland will try to secede again from UK and pull it off this time.
I’m a little hesitant to say so, but not hesitant enough not to: the women’s equality movement of the 70’s has outlived their usefulness and either need to pivot or stand aside for a next generation. It’s very sad, because “together we stand” as the song goes, but suppression is worse than division in my view. And this issue is not just about queer or gender fluid folks. There are many men who are victimized by contemporary patriarchy as well.
Anyway, we’re in a dark timeline. But darkness is the greatest opportunity for the light to have an impact, because there it is needed the most. I’m not yet sure how, but it’s definitely time to flip the switch.
Why are you making this difficult? It's simple: Trump already told us it's anyone with a specific type of cell at conception that does not exist at conception!
what is a “biological woman?”
Why are you making this difficult? It's simple: Trump already told us it's anyone with a specific type of cell at conception that does not exist at conception!
I put this in ~society because I feel like Supreme Court rulings largely transcend ~lgbt and likely are the kind of thing that people who don't follow ~society don't want to see.
I put this in ~society because I feel like Supreme Court rulings largely transcend ~lgbt and likely are the kind of thing that people who don't follow ~society don't want to see.
IMO, that law shouldn't exist to begin with. I'm not sure if the writers thought the consequences through, but as it is written, it makes all public boards skewed towards being run by women --...
The case originated from a 2018 Scottish law passed by the Scottish Parliament, requiring 50% female representation on public boards, which included transgender women in its definition of women.
IMO, that law shouldn't exist to begin with. I'm not sure if the writers thought the consequences through, but as it is written, it makes all public boards skewed towards being run by women -- there is no corresponding rule to make men automatically selected if an open position is being contested by a man and a woman while there is a "deficit" in men on the board. As a result, all boards' female membership will be ratcheted upwards until 50%, but will be free to go as high as 100%. That's absurd discrimination.
Even if I agreed with your point when it comes to affirmative action, I think it would still be absolutely ludicrous to focus on that in the current situation or in this thread. Trans women are...
Even if I agreed with your point when it comes to affirmative action, I think it would still be absolutely ludicrous to focus on that in the current situation or in this thread. Trans women are having their already tenuous rights in the UK further gutted -- something that has far-reaching consequences beyond that particular piece of Scottish legislation. We should focus on the actual victims of this court decision who are only going to suffer more in an already extremely anti-trans political climate.
I’m curious what there is to disagree with. This goes well beyond affirmative action in my view. You’re welcome to focus wherever you like, but this is where I’m focusing at the moment. I think as...
Even if I agreed with your point when it comes to affirmative action
I’m curious what there is to disagree with. This goes well beyond affirmative action in my view.
We should focus on…
You’re welcome to focus wherever you like, but this is where I’m focusing at the moment. I think as a society, we can walk and chew gum at the same time, and also address more than one bad law.
Let me rephrase -- I think it is actively harmful to focus on how a threshold like this might theoretically harm cis men in a conversation about how trans people are having their rights taken...
Let me rephrase -- I think it is actively harmful to focus on how a threshold like this might theoretically harm cis men in a conversation about how trans people are having their rights taken away. If this is what you're choosing to focus on, I think it betrays at best a skewed set of priorities on your part.
I think everyone's missing the larger connection -- policies that unfairly favor one group over another provide an incentive for gatekeeping membership in that group. I'm a big supporter of...
I think it is actively harmful to focus on how a threshold like this might theoretically harm cis men in a conversation about how trans people are having their rights taken away.
I think everyone's missing the larger connection -- policies that unfairly favor one group over another provide an incentive for gatekeeping membership in that group.
I'm a big supporter of self-identification when it comes to gender and sexuality. Too much of it depends on what's going on in a person's head, and that person's the only one who truly knows. And someone figuring things it can be complicated enough without outsiders trying to tell them what they're truly thinking/feeling.
But when you've got the government favoring women over men (even with a motive of correcting a perceived inequity), then you've given the government a reason to define what a woman is. And since tangible benefits are on the line, any definition is going to be stricter than "you're a woman if you say you're a woman." The issue also gives TERFs an issue to use to codify their hatred as well as a means of radicalizing some of the less extreme transphobes.
I can’t imagine why 50-100% women on boards could be an issue? For one, we have the historical (and current, if you’re looking more widely than this rule has jurisdiction) precedent of these kinds...
I can’t imagine why 50-100% women on boards could be an issue?
For one, we have the historical (and current, if you’re looking more widely than this rule has jurisdiction) precedent of these kinds of positions being typically 50-100% men. I’ll leave that to the reader to decide a) whether that was a good or bad thing, and b) whether the potential issues caused by predominantly-women boards outweigh the potential issues caused by predominantly-men boards.
But also in today’s much more complex world, but also where information is much easier to collect and coordinate, I can’t imagine any substantial negative outcomes that are the result of gender imbalance in this way?
You don’t see why capping male participation at 0-50% is a problem? Would you see it as an issue if there were a limit on black or gay membership on boards? I can accept, but disagree with, a...
You don’t see why capping male participation at 0-50% is a problem? Would you see it as an issue if there were a limit on black or gay membership on boards?
I can accept, but disagree with, a requirement that boards are exactly balanced. I find the one sided discrimination against men to be entirely unacceptable though.
You're actively concerned with opposing any potential inequality against men. What's your thoughts on rectifying the existing, pervasive inequalities that favour men?
You're actively concerned with opposing any potential inequality against men. What's your thoughts on rectifying the existing, pervasive inequalities that favour men?
Sure, we should do that. I just don’t think the route to equality can ever include creating discriminatory laws. We should all be equal in the eyes of the law, with no exceptions.
Sure, we should do that. I just don’t think the route to equality can ever include creating discriminatory laws. We should all be equal in the eyes of the law, with no exceptions.
I understand this, I also think that this is the same argument that ignores historical and current systemic inequities leading to surface equality under the law and practical and continued...
I understand this, I also think that this is the same argument that ignores historical and current systemic inequities leading to surface equality under the law and practical and continued oppression.
It's why we continue to see huge inequality in corporate and public leadership roles. And it's frustrating to see people fine with it because "legally" everyone has the same opportunity, when practically that is not how things work.
As I said elsewhere, I would accept (but disagree with) a law that required precise equality on boards. I don't accept a law that encodes a specific bias. I don't believe that historical...
As I said elsewhere, I would accept (but disagree with) a law that required precise equality on boards. I don't accept a law that encodes a specific bias. I don't believe that historical inequality can be balanced across time with a different kind of inequality.
I would say that historically, and currently, we haven’t yet had a situation where we had a fair and equitable justice system, and the evidence to me indicates that the greatest improvements have...
I would say that historically, and currently, we haven’t yet had a situation where we had a fair and equitable justice system, and the evidence to me indicates that the greatest improvements have come from fixing those fundamentals through things like women's suffrage and the civil rights act rather than actions that create new injustices.
There are better ways to increase equality than “positive” discrimination. In my view, the big ones are education and strong laws against discrimination of any kind.
Ah I should clarify — while I might instinctively feel it’s an unfair rule, in reality for every mandated predominantly-women board there are countless predominantly-men boards which have no caps...
Ah I should clarify — while I might instinctively feel it’s an unfair rule, in reality for every mandated predominantly-women board there are countless predominantly-men boards which have no caps or quotas.
I can understand the in-principle argument, however I find these kinds of rules completely unconcerning in the wider context, given what happens in most boards without any explicit rule.
Would you see it as an issue if there were a limit on black or gay membership on boards?
Given my stance is to push against the historical status quo, your example should be “a limit on white or straight membership on boards” in which case yeah, I’m in favour of more of that until I feel the scales are tipped in that direction
I agree that the bit you quoted (and removed the caveat I put in place) is a shocking statement, but it’s not a statement I made. The statement I made includes a caveat which I believe is...
I agree that the bit you quoted (and removed the caveat I put in place) is a shocking statement, but it’s not a statement I made. The statement I made includes a caveat which I believe is completely reasonable, and if you think the statement in its entirety is not reasonable, I’d be happy to discuss further.
I’m curious on your position too — if you can see that the previous/existing systems and all their rules lead to heavily biased boards, then why would you argue against rules designed to address these outcomes?
If a fair rule consistently leads to an unfair outcome, is it really a fair rule?
I don't think there's any caveat one could place on implementing a law that specifically discriminates on the basis of gender or sexuality that would make it acceptable....
I don't think there's any caveat one could place on implementing a law that specifically discriminates on the basis of gender or sexuality that would make it acceptable.
if you can see that the previous/existing systems and all their rules lead to heavily biased boards, then why would you argue against rules designed to address these outcomes?
I think it's pretty clear that diversity is increasing. Why? Probably because of education and things like the civil rights act, which prohibit discrimination. So no, I don't see that the existing system is leading to heavily biased boards. What I see is inertia giving way to progress at a rapid pace, due to a number of good rules which do not generally involve actively discriminating against anyone.
What I see is that you are frustrated that change is not happening as fast as you like, and you want to put your thumb on the scale a bit to speed things up, but what I'm saying is the means you're suggesting ("positive" discrimination) is abhorrent and can only cause problems in the long term.
I’m also not saying that there isn’t anything we should be doing about this. The system is not perfect. And there are lots of elements of DEI programs that are valuable that aren’t just quotas.
I suspected this might end up here.
It's worth reading the full judgement (PDF warning), or at least the section "Summary of our reasoning" at the end. This is relatively clear language, and the summary is fairly helpful.
The most important thing is that this is not saying that "women" means "biological female" under all law. The question is specifically what the Equality Act 2010 is referring to when it uses the terms "man" or "woman". From relatively early on in the document:
Their logic is roughly as follows:
Point 4 feels like the shakiest point here, and produces a bunch of other weird effects — for example, a trans woman in a relationship with a cis woman would not be considered a lesbian for the purposes of the Equality Act, despite them appearing so to other people. However, I think this isn't necessarily a flaw of the judgement, and is more a flaw of the legislation. The core issue is that the legislation uses "woman" to define a mix of biological and gender-based reasons for validly distinguishing between men and women. For example, on the topic of pregnancy, it makes sense that only biological women of any gender should be afforded those protections. However, for, say, creating safe spaces for victims of gender-based violence, that doesn't necessarily apply.
The ruling does point this out (and also points out that the EHRC has also been pointing this out for years), but unfortunately that's a problem that can only be solved by legislation, and not by courts.
Short term, I suspect this is going to get championed as a victory for the right (it already is), despite still affirming that trans people exist, that trans men are men, and that trans women are women (outside of the specific context of the Equality Act 2010). Beyond that, I think the Government really needs to legislate to fix the EA. Unfortunately, right now, I don't think they're willing to take on that job, just because of how toxic it will seem to the electorate.
Thank you for the link and breakdown.
Pardon my ignorance of UK judicial systems, but does this establish a precedence for other courts to declare "woman" means "biological female" in other rulings on laws unrelated to the Equality Act? Could those rulings ignore the part of this ruling that affirms trans existence?
I believe this is a relatively specific ruling, and doesn't establish much in the way of precedence. So other laws should be "safe" from this decision. That said, the Equality Act is pretty important, and as I understand it, a lot of questions about which spaces trans people are allowed to exist in essentially come down to how to interpret the Equality Act, which this ruling will affect.
My hope is that the Government take the hint and fix the EA, but like I said, I don't think that's going to be a battle they're willing to face right now, nor do I think the fixes that are needed will be popular.
So should we change the title of the post then?
I updated the title to reflect this.
I think it's technically correct as it stands, and making it more correct might make it harder to parse. But I never know how to write a good title for these sorts of things.
My first question is, what is a “biological woman?” My second question is, how will this be enforced?
I’m a cis straight male, so I always tread lightly in these areas and look to the communities most impacted to help guide my thinking. I am, however, very much into equitable treatment of all people across the globe. And this is pretty disgusting. Also, good on Scotland for making the law in question. Maybe Scotland will try to secede again from UK and pull it off this time.
I’m a little hesitant to say so, but not hesitant enough not to: the women’s equality movement of the 70’s has outlived their usefulness and either need to pivot or stand aside for a next generation. It’s very sad, because “together we stand” as the song goes, but suppression is worse than division in my view. And this issue is not just about queer or gender fluid folks. There are many men who are victimized by contemporary patriarchy as well.
Anyway, we’re in a dark timeline. But darkness is the greatest opportunity for the light to have an impact, because there it is needed the most. I’m not yet sure how, but it’s definitely time to flip the switch.
Why are you making this difficult? It's simple: Trump already told us it's anyone with a specific type of cell at conception that does not exist at conception!
I put this in ~society because I feel like Supreme Court rulings largely transcend ~lgbt and likely are the kind of thing that people who don't follow ~society don't want to see.
IMO, that law shouldn't exist to begin with. I'm not sure if the writers thought the consequences through, but as it is written, it makes all public boards skewed towards being run by women -- there is no corresponding rule to make men automatically selected if an open position is being contested by a man and a woman while there is a "deficit" in men on the board. As a result, all boards' female membership will be ratcheted upwards until 50%, but will be free to go as high as 100%. That's absurd discrimination.
Even if I agreed with your point when it comes to affirmative action, I think it would still be absolutely ludicrous to focus on that in the current situation or in this thread. Trans women are having their already tenuous rights in the UK further gutted -- something that has far-reaching consequences beyond that particular piece of Scottish legislation. We should focus on the actual victims of this court decision who are only going to suffer more in an already extremely anti-trans political climate.
I’m curious what there is to disagree with. This goes well beyond affirmative action in my view.
You’re welcome to focus wherever you like, but this is where I’m focusing at the moment. I think as a society, we can walk and chew gum at the same time, and also address more than one bad law.
Let me rephrase -- I think it is actively harmful to focus on how a threshold like this might theoretically harm cis men in a conversation about how trans people are having their rights taken away. If this is what you're choosing to focus on, I think it betrays at best a skewed set of priorities on your part.
I think everyone's missing the larger connection -- policies that unfairly favor one group over another provide an incentive for gatekeeping membership in that group.
I'm a big supporter of self-identification when it comes to gender and sexuality. Too much of it depends on what's going on in a person's head, and that person's the only one who truly knows. And someone figuring things it can be complicated enough without outsiders trying to tell them what they're truly thinking/feeling.
But when you've got the government favoring women over men (even with a motive of correcting a perceived inequity), then you've given the government a reason to define what a woman is. And since tangible benefits are on the line, any definition is going to be stricter than "you're a woman if you say you're a woman." The issue also gives TERFs an issue to use to codify their hatred as well as a means of radicalizing some of the less extreme transphobes.
I can’t imagine why 50-100% women on boards could be an issue?
For one, we have the historical (and current, if you’re looking more widely than this rule has jurisdiction) precedent of these kinds of positions being typically 50-100% men. I’ll leave that to the reader to decide a) whether that was a good or bad thing, and b) whether the potential issues caused by predominantly-women boards outweigh the potential issues caused by predominantly-men boards.
But also in today’s much more complex world, but also where information is much easier to collect and coordinate, I can’t imagine any substantial negative outcomes that are the result of gender imbalance in this way?
You don’t see why capping male participation at 0-50% is a problem? Would you see it as an issue if there were a limit on black or gay membership on boards?
I can accept, but disagree with, a requirement that boards are exactly balanced. I find the one sided discrimination against men to be entirely unacceptable though.
You're actively concerned with opposing any potential inequality against men. What's your thoughts on rectifying the existing, pervasive inequalities that favour men?
Sure, we should do that. I just don’t think the route to equality can ever include creating discriminatory laws. We should all be equal in the eyes of the law, with no exceptions.
I understand this, I also think that this is the same argument that ignores historical and current systemic inequities leading to surface equality under the law and practical and continued oppression.
It's why we continue to see huge inequality in corporate and public leadership roles. And it's frustrating to see people fine with it because "legally" everyone has the same opportunity, when practically that is not how things work.
As I said elsewhere, I would accept (but disagree with) a law that required precise equality on boards. I don't accept a law that encodes a specific bias. I don't believe that historical inequality can be balanced across time with a different kind of inequality.
I understand that, and I'm just saying per history, that practice generally perpetuates inequality.
I would say that historically, and currently, we haven’t yet had a situation where we had a fair and equitable justice system, and the evidence to me indicates that the greatest improvements have come from fixing those fundamentals through things like women's suffrage and the civil rights act rather than actions that create new injustices.
There are better ways to increase equality than “positive” discrimination. In my view, the big ones are education and strong laws against discrimination of any kind.
Ah I should clarify — while I might instinctively feel it’s an unfair rule, in reality for every mandated predominantly-women board there are countless predominantly-men boards which have no caps or quotas.
I can understand the in-principle argument, however I find these kinds of rules completely unconcerning in the wider context, given what happens in most boards without any explicit rule.
Given my stance is to push against the historical status quo, your example should be “a limit on white or straight membership on boards” in which case yeah, I’m in favour of more of that until I feel the scales are tipped in that direction
Ngl that’s a shocking statement.
I agree that the bit you quoted (and removed the caveat I put in place) is a shocking statement, but it’s not a statement I made. The statement I made includes a caveat which I believe is completely reasonable, and if you think the statement in its entirety is not reasonable, I’d be happy to discuss further.
I’m curious on your position too — if you can see that the previous/existing systems and all their rules lead to heavily biased boards, then why would you argue against rules designed to address these outcomes?
If a fair rule consistently leads to an unfair outcome, is it really a fair rule?
I don't think there's any caveat one could place on implementing a law that specifically discriminates on the basis of gender or sexuality that would make it acceptable.
https://www.qualtrics.com/blog/fortune-500-ceo-diversity/
https://www.statista.com/statistics/198341/representatives-in-the-us-congress-by-gender-since-1975/
I think it's pretty clear that diversity is increasing. Why? Probably because of education and things like the civil rights act, which prohibit discrimination. So no, I don't see that the existing system is leading to heavily biased boards. What I see is inertia giving way to progress at a rapid pace, due to a number of good rules which do not generally involve actively discriminating against anyone.
What I see is that you are frustrated that change is not happening as fast as you like, and you want to put your thumb on the scale a bit to speed things up, but what I'm saying is the means you're suggesting ("positive" discrimination) is abhorrent and can only cause problems in the long term.
I’m also not saying that there isn’t anything we should be doing about this. The system is not perfect. And there are lots of elements of DEI programs that are valuable that aren’t just quotas.
Sigh.
I don't have anything useful to say. Just expressing my exhaustion and sadness.