Skip Navigation
92 comments

  • Scottish courts ruled, and then upheld in the Scottish government’s favor, that sex is “not limited to biological or birth sex,” and must include those in possession of a gender recognition certificate (GRC).

    But that was challenged in London’s Supreme Court by campaigners. And, in its ruling Wednesday, the country’s highest court said the meaning of the terms “sex,” “man” and “woman” in the U.K.’s Equality Act must refer to “biological sex” — with any other interpretation deemed “incoherent and impracticable.”

    And here lies the issue. Maybe I am understanding how society and science are defining terms in these cases, but: doesn’t woman/man = gender (which differs depending on culture, time period, etc) and female/male = sex (which is a medical/scientific term)? It appears both sides of the table are trying to make these terms mean something they do not.

    Either way, I see no practical point in actually making a law defining these terms, especially when the legal definition is not even correct scientifically speaking. There are so many biological changes that trans individuals go through when they medically transition and society will see them differently if they “pass” in their society. Also, sex isn’t so black and white either.

    • Thanks for the summary, very helpful.

      To my knowledge, the words man/woman are not originally a social construct - they're the biological terms for human males and females (like a bitch is a female canine, and a rooster is a male chicken). However, as science has advanced, it's become increasingly clear that biology is not as binary as male and female.

      On the other hand, we have binary gender roles, which are a social construct. Since external genetalia generally form the basis for assigning gender roles, there is a very close but not exact overlap between gender roles and biological sex. The argument is that since gender roles don't always match biology, the words man/woman are social constructs. Effectively, they're trying to adapt the original definitions, but are not unexpectedly meeting with resistance.

      Going back to this specific law, my immediate question would be: what determines whether you're biologically male or female? Is it your current genetalia or the genetalia you were born with, i.e. what about trans people that have transitioned? If it is the genetalia you're born with, then what about hermaphrodites? If it's your genetics, then what about intersex people? Etc.

      The law wasn't written to account for all these complex biological possibilities. So it sounds to me as if the scottish courts were trying to simplify by effectively letting a dr. make that decision. I assume as a next step the UK will face court cases challenging the definition of "biological".

      Adding to the complexity, in my opinion, is that this particular case is about equality. This raises difficult questions about privilege, and nature vs nurture. The chess example comes to mind, where trans women have been excluded from the women's only tournament. The main tournament is open to all genders, so they can still play, just not in the women's only tournament. The argument is that due to gender roles, cis women are likely to have faced much higher barriers to learning chess as children than trans women. Those disadvantages from enforced gender roles is why the women's league even exists, as an attempt to encourage more women to participate, and trans women wouldn't have had to overcome the same barriers.

      So, coming back to equality, what is more important, your current gender presentation, or the gender role in which you were raised? The answer to that question depends on so many factors in each situation, that I'm not convinced trying to force people into existing definitions make sense. It feels to me as if we need new legal definitions with more categories, but it is going to be extremely difficult to create definitions that adequately address the issues.

92 comments