This is where we part ways
Biological sex, the Supreme Court, and the future of "the Right"
By now, you’ve probably heard about the Supreme Court ruling in the case of For Scotland Women Ltd v The Scottish Ministers (2025). The case in question was an attempted to resolve the issue, “Is a person with a full gender recognition certificate (“GRC”) which recognises that their gender is female, a “woman” for the purposes of the Equality Act 2010 (“EA 2010”)?”
Or, in other words, the final legal tussle over what the legal definition of a “woman” is. The Supreme Court decided that the Equality Act’s use of the word was made in reference to biological sex (para 265(xviii)):
We therefore conclude that the provisions of the EA 2010 which we have discussed are provisions to which section 9(3) of the GRA 2004 applies. The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate.
The details of the court case and ruling
As Sean Walsh wrote for the Conservative Woman, it certainly is an absurd world where we need the law to tell us the answer to this question; though of course, for a lawyer like Sir Keir Starmer, the law is the only source of authority, and it was only following the ruling that he was able to admit to biological reality.
The background of this case is deeper - and more sinister - than the case in itself reveals. It is rooted in the Gender Representation on Public Boards (Scotland) Act 2018, which is an invasive piece of legislation that required, as specified in the introductory text, that it was designed to “make provision about gender representation on boards of Scottish public authorities” which refers to the objective that “a public board… has 50% of non-executive members who are women”.
Remember, the Supreme Court ruling is always subject to the law of Parliament - if Parliament changes the law, the Supreme Court cannot overturn that, as it could in the United States.
In other words, the law was designed to require Scottish public authorities to have at least half of their board members as women; notably, in “key definitions” section, there was no need to define what a “woman” is.
But the context surrounding this law passing was one in which the issue of transsexual or transgender identity was one of increasing salience, due to only increase as the 2010s came to a close and the very-online era of covid began. Several studies have shown that the covid pandemic had a significant impact on the spread of transgender identities: for example, Hainsworth et al (2024) found that there was significant “time for identity development”, as well as “trans/non-binary visibility on online platforms (knowledge, connection and personal increased visibility), increased confusion/pain and unspecified but significant changes”. Likewise, as Io Dodds wrote for The Independent, “call it the quarantrans era, or the trandemic, or even the Great Omelette. Whatever its name, it has deep implications not only for the lives of those it touched but for the future role of trans people in society.”
So important had the issue of transsexual identity become following the pandemic that, in December 2022, the Scottish government passed the Gender Recognition Reform (Scotland) Bill (2022), which updated the Gender Recognition Act (2004), in an attempt to make it easier for individuals to change their gender. The Bill would have allowed 16 and 17 year olds to change their gender provided they had “lived as” their “chosen” gender for six months, as well as adults who had lived so for only three months, making minor adjustments to the 2004 Act.
The law was, famously, blocked by Westminster, under a Section 35 order, a decision that was upheld by the UK Supreme Court in December 2023.
Its hand forced, the Scottish government now had to issue either guidance on what the legal meaning of the term “gender” was, in turn outlining the legally recognised definition of “woman” was, especially since (as I point out above) the term had not been defined. Probably because it did not need to be.
Shortly after the initial passing of the 2022 Bill, still in December 2022 on the 13th, Lady Haldane ruled in the Scottish court of session that the definition of “woman” in the Equality Act (2010) had never specified biology as the basis for the meaning of the word. This case was actually brought in response to challenges regarding the Gender Representation Act (2018), and Lady Haldane’s judgement was made in the basis that the Equality Act had been passed with the Gender Recognition Act (2004) in mind. The legal context of the Equality Act, therefore, made space for the existence of transsexual individuals.
The challenge to Lady Haldane’s judgement, brought by Sex Matters, was overturned by the Supreme Court on 16th April 2025.
Why did this matter politically?
This has been an alliance of convenience, and now, I believe, it will become inconvenient.
This is a welcome decision. There is absolutely no doubt of that; for too long now there has been too many concessions to an ideologybased in theory rather than reality, that has been given too much airtime and ink. We had the strange sight of Sir Keir Starmer telling us that 99.9% of women don’t have a penis, while Alex Sobel, MP for Leeds South and Headingley, said men can’t be pregnant.
In legal terms, the drift that began in 2004 had led, by 2022, to most British people thinking that individuals should be able to identify as a gender different to their biological sex, while 40% had no problem with people being able to change their legal sex. Over a third (38%) believed individuals should be able to change their legal and social gender.
But politically, this toxic debate had led to the creation of two political coalitions that might, in decades past, have been considered strange. On the one side, the Labour Party, which had throughout the 2010s become increasingly involved in gender identity debates, and had whipped MSPs to vote for the original 2022 Bill discussed above, paired with celebrities like David Tennant and, seemingly, the BBC itself, as Lauren Smith and Cath Walton each wrote about.
On the other hand stood a more diverse coalition, with the Conservative Party increasingly taking a hardline stance against self-defined gender recognition (what has come to be called ‘self-ID’), now led by Kemi Badenoch who, famously, promised the reform the Equality Act in the style the Supreme Court’s ruling now has.
Strangely, the Conservatives were now allied with TERFs (trans-exclusive radical feminists) whose response to the gender self-ID trends was led by a combination of a belief in biological sex, as well as the historical struggle for equal rights in law rooted in that biological basis. I say strangely, because it was historically the Conservatives (and conservatives) against whom the TERFs struggled, with their struggle usually aimed at liberation, arguing that sex is not determinative in social behaviour and certainly not distinctive in legal terms, whilst conservatives would typically argue that there are clear social distinctions between men and women and (decreasingly so) that the law should reflect that.
The Conservative Party seemed, in the 2000s, converted to the TERF perspective, with David Cameron deciding in the late-2000s to create women-only shortlists in certain parliamentary safe seats, to increase the number of women in the Conservative Parliamentary Party. So thoroughgoing is this conversion that Kemi Badenoch now defends the Equality Act on the basis that it has been “misunderstood”, a perspective that the Supreme Court now seems to have vindicated.
But this coalition - victorious - is an historical and contingent one. It is not principled; at least, not at the grassroots, where the Conservative Party membership still is not as converted to the TERF perspective as the leadership, while conservatives - those who philosophically hold to traditionalist principles - never have. This has been an alliance of convenience, and now, I believe, it will become inconvenient.
This coalition will now fracture
We must understand what the consequences are to be for this victorious coalition.
Already - today! - Suella Braverman has issued a call in The Telegraph for the Equality Act to be repealed, stating explicitly that the Supreme Court revealing has revealed that “Britain’s equality laws have long been confusing and dangerously open to misinterpretation and exploitation. Instead of protecting individuals from unfair treatment, the legal framework has been weaponised.”
The Equality Act is now further embedded into the institutional framework of this country’s legal system, and as a result can be relied upon by those who we recently called allies to resist our calls for its repeal.
Mrs Braverman is not alone - Rupert Lowe has said much the same in recent weeks, and I have said elsewhere that the Equality Act undermines the operation of our constitution as it has evolved. But, with the leader of the Conservative Party - the party to whom Mrs Braverman belongs - defending the principles upon which the Equality Act is predicated, often calling it a shield and not a sword, the fractions with which the Conservative Party is riven will now widen. What will the Conservatives do now - commit to repealing the Equality Act, or reforming it? The decision will be indicative of the kind of governing agenda it will pursue.
I imagine that, in the short term, the Conservatives will double-down on defending the Equality Act, especially under Kemi’s leadership. This will be in attempt to steal the centre-ground from Labour, but in the long-run this could alienate the membership and the right wing of the party, something that will be exceedingly dangerous especially at a time of stretched party unity.
As for Labour, the noises from the party - or lack thereof - would indicate the presence of division. This is no doubt more likely in a party nearly four times the size of the Conservatives, but already Pink News has run headlines saying Starmer has “turned his back on the trans community”, so just as drifting to the centre will alienate the base of the Conservative Party, so too would it alienate the base of the Labour Party, increasingly radical and vocal on the issue of trans identity.
Therefore, Labour are presented with two options. First, a backtrack on the recent few years - either tacitly, or through an open admission of “getting it wrong”, whatever that looks like - in an attempt to shore up the women’s vote which, as I’ve repeatedly pointed out, is where the Party is lagging behind the Conservatives. Superficially this has begun, with No. 10 issuing a statement that Sir Keir does not believe transwomen are women, but the substantial form of this approach would be to fully implement the Cass Review, as well as taking steps to formally end the intrusion of biological men into biological women’s spaces, not just in toilets, but in prisons, dormitories, and so on.
Alternatively, the Labour Party could be led into embracing the radicalism of its trans-friendly grassroots, and reform the Equality Act to explicitly base “womanhood” in self-identification, perhaps by making allowances for Gender Recognition Certificates. Given Starmer’s ruthlessness in purging pro-Corbyn presences in the Party after taking control of the leadership, this looks less likely, but it still is an option. Remember, the Supreme Court ruling is always subject to the law of Parliament - if Parliament changes the law, the Supreme Court cannot overturn that, as it could in the United States.
If these likely options are pursued - both parties drifting to the centre - I think those of who us who are principled opponents to the Equality Act will be side-lined. We may oppose it on ideological grounds, on the grounds of its content, or (like myself) for its constitutional implications - it does not matter. The Equality Act is now further embedded into the institutional framework of this country’s legal system, and as a result can be relied upon by those who we recently called allies - the TERFs - to resist our calls for its repeal.
Sadly, I feel that this is where we part ways.