Opinion
22nd April 2025
Bringing clarity to the Ass
There seems to be a broad consensus the Supreme Court’s judgement on the meaning of sex in the Equality Act 2010 has brought clarity. A few dissenting voices claiming to represent the “Trans Community” suggest otherwise. It is understandable they would make such a claim as they campaign to change public perception on the subject. I am in no position to judge how much of that is genuine concern or whether it is just political posturing. However, I believe their concerns are misdirected — to a point.
The concern seems to that binary services might cease to be available to people with a Trans identity despite the judges insistence this would not result from their conclusion. Gender transition remains a Protected Characteristic. Therefore, as the law stands, it requires that services are not made unavailable to people on the basis of that identity, though special provision might have to be made if that would interfere with safe spaces where it is reasonable to separate the sexes. Campaigners fear people will not spend the money to provide such accessible services, despite the fact the law requires them to do so. If that happens it is not a problem with the law. It is a problem of people breaking the law. The law exists to prevent that happening and provide redress if it does.
The judgement does bring clarity to many areas where doubt has had a chilling effect on common sense. Beside clarifying that single-sex and other single-characteristic spaces are legal, providing there is a genuine justifiable and proportionate reason for them, the judges have swept away a whole field of defensive practices based on fear of possible interpretations. I noted the question of sex-based variations in insurance risk was specifically cited. Was that the judges’ swipe at the way young female drivers have been penalised with disproportionate premiums from companies afraid of charging the more risk-taking boy-racer element more than them?
However, that said, if the law is an ass, as Mr Pickwick observed, the Equality Act is a particularly stupid one, and that was also illustrated by the judges’ remarks. In law, they explained, sex is a binary characteristic. Now, while that is generally the case, it is by no means universally so. Human sex is determined by our chromosomes and manifested in our development, but biology is a messy science. Sometimes these things don’t go to plan, even if there is a plan, which in biology there rarely is. People are born with extra chromosomes sometimes. In many cases these produce disabilities. In the case of the sex-determining chromosomes they can produce infertility, though usually no other obvious impairment. However, XXY and XYY people are born and although they usually appear male, are they really fully so? If we define sex by chromosome combinations these are ambiguous.
Even more ambiguous are people with the XY combination who, perhaps because of another genetic mutation or an environmental factor distorting infant hormones, develop female genitalia instead of the male ones their sex chromosomes would suggest. Finally, there are those born with incompletely developed genitalia, whose sex might be difficult to determine. In the past, a surgeon would take a guess and attempt to complete the job. Of course, a guess can be wrong. These days, I believe, the practise in many countries is to wait for puberty when hormone production increases and things become clearer.
However, the foregoing examples demonstrate that while sex might not simply be a matter of lifestyle choice, it cannot really be called binary because ambiguities do exist. A law which ignores science can hardly be considered sensible.
If this were the only way laws around sex, including the Equality Act, are unscientific, the Supreme Court’s clarification would render it much less harmful. The problem is that much of the Act is unscientific. Some of the categories protected by it are unproven interpretations of social or psychological phenomena which might or might not have a scientific basis. Nonetheless, it legislates those categories into presumed existence in law, making questioning them in research difficult to justify in the public consciousness. That is also flying in the face of rationality. Finally, there is the limitation of its protection to this one set of specific characteristics, effectively privileging those claiming them over everyone else.
Although people identified as one of the Protected Characteristics might be prone to persecution of some kind, we cannot prevent society harming people simply by singling out a few obvious targets and protecting only them. The law must protect everyone. At least, a sensible law should.
So, I believe while the Supreme Court has brought clarity and a measure of common sense into the interpretation of the Act, it remains an ill-thought-out law which needs a complete reform.