Patriarchal Hammers

Some thoughts on the recent judgement by the Supreme Court

I am writing this post in response to the Judgement, For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent), published on April 16, 2025. Five judges from the UK supreme court ruled unanimously that the legal definition of a woman in the Equality Act (2010) did not include transgender women who hold gender recognition certificates (GRCs). In allowing the appeal, the judgement claimed that, at least for the purposes of interpreting the Equality Act, sex refers only to biological sex and that women and men should be treated as distinct groups with a shared biology. I would argue that this claim is not only unjust and ahistorical, based as it is on assertions about common use rather than examples of common use, but also profoundly anti-feminist. As Jess O’Thomson has argued, “We’re yet to see how all of this will play out in practice, but it seems clear that this won’t just hurt the trans community. The reasoning adopted, and the relentless desire to police ‘what is a woman’ can only hurt our wider communities.”

It is only because “gender critical feminists” have so dominated the British media that this judgement could be referred to as a “victory for women’s rights.”

I call the judgement a patriarchal hammer.

I have written this post as someone without legal expertise (as anyone with such expertise will no doubt be able to tell!). I write not just as a feminist but as someone who has undertaken empirical research into equality within the workplace, attending specifically to words used in policies and by practitioners. I write also as a cis lesbian of colour, out of a sense of urgency, and in solidarity with trans people.

In earlier contributions, I have shown how so-called “gender critical” feminists who often claimed to be silenced and hounded out of their jobs, have used tactics of bullying and intimidation to create a hostile environment for trans people and their allies. This small group of so-called “gender critical” feminists have been able to influence policy (and public debate) in the UK in a way that has been disastrous not only for LGBTQIA+ communities but for feminism.

Yes, defining women as a biological group is a disaster for feminism.

The many feminists who have argued against the biologisation of sex have been so routinely ignored that if you picked up a mainstream paper in the UK, you would not even know they existed.

The idea that biological sex is the possession of a person let alone a group has been critiqued by feminists over generations. That is not to say that feminists have agreed about the role of biology or the relationship between biology and the environment. My point is almost the opposite: that feminists disagree is a sign of how we have been problematising what is meant by biology, sex and women by disputing their meanings and challenging some of their ordinary uses. In a later post, I will show how “gender critical” feminists tend to present the problematising of biological sex as deriving from “postmodern queer theory” or “trans activism” to borrow terms from Alice Sullivan. But this problematising of the biological has been part of feminism all along.

Just one example:

Biologist and feminist Ruth Hubbard in her 1990 article “Rethinking Women’s Biology,” argued that women’s biology is a “social or political construct” and “not a scientific one.” She claims that women’s biology is socially constructed in three main ways.

Firstly, citing Beauvoir’s famous claim “one is not born but becomes a woman,” Hubbard suggests women’s biology is constructed because the “concept” of woman and man “is a socially constructed one that some of us try and fit as we grow up.” She points to how “some of us are better than it than others,” and that our very “efforts to fit” have “biological and social consequences.” When girls are taught that they can’t or shouldn’t engage in certain activities because they are girls, and when they internalise these lessons by not doing these things, their bodies are shaped.

Secondly, Hubbard argues that women’s biology is constructed “because it is not simply women’s description of our experience of biology.” It is worth remembering here that the word “biology” as “the science of life and living things” is modern (the first recorded use of this word is from 1802), a compound of the Greek word bios (like, one’s life, lifetime) with logy (study of). That women’s biology is constructed is a reference to how it has been studied by scientists who “for historical reasons have mostly been economically privileged, university educated men with strong personal and political interests in describing women in ways that make it natural for us to fulfil roles that are important for their well-being and personally and as a group.” As Sarah Franklin has noted, biology can refer to both a “body of authoritative knowledge (as in the science of reproductive biology) and a set of phenomena.” Franklin’s point gives us a clue as to why critiquing biology has been so important to feminism. So much authoritative knowledge of the body has been confused with the body itself.

Biology is all the more political because of how it is used as if it isn’t.

Thirdly, Hubbard argues that women’s biology is constructed because our very “concept of ourselves” is also socially constructed, “our society’s interpretation of what is normal and natural affects what we do.” What we do, she argues, has biological as well as social consequences. Yes, Hubbard is still using the term “women’s biology.” But her emphasis on the interaction between social norms and bodily experience suggests that “women,” if biological is also social and historical.

It was important to begin my critique of the judgement by referencing feminist critiques of biology. We have behind us many such critiques.

Let’s turn to the judgement. It claims that when the Equality Act (2010) refers to sex discrimination, sex should be interpreted as biological sex and not certified sex. The Equality Act (2010) named sex and gender reassignment as “protected characteristics.” So according to the judgement, trans women do not have the protected characteristic of sex but they do have the protected characteristic of gender reassignment. Trans women cannot claim sex discrimination unless they can show they were perceived to be women. Yes, other people’s perceptions matter but not their own.

That judgement is careful to claim that it is not adjudicating on the meaning of words such as women or sex in the wider public domain, but interpreting the use of these terms in the Equality Act (2010) itself. If this distinction is one that judgement makes, it is not necessarily one that holds. In less than a week, in a move that was no less despicable for being predictable, British Prime Minister Keir Starmer not only to welcome the “clarity of the judgement” but declared that trans women are not women and that women are “adult females”. The Minister for Women and Equalities Bridget Phillipson said that trans women should use men’s toilets. We are witnessing a fundamental attack on the rights of trans women to live safely, with dignity, and to participate in public life.

That distinction between public adjudication and statuary interpretation did not hold very long.

The judgement will have a direct and immediate impact on the workplace as evidenced by the reported rush of public institutions to change policies and practices. Many workplaces might comply not because they agree with the judgement but because they know it has given groups who are hostile to trans rights more tools to bring grievances if they don’t. A powerful tool for “adjudicating meaning” is increasing the costs of non-compliance. I rather suspect the distinction between statuary interpretation and public adjudication was self-serving, protecting judges from overtly acknowledging what they were doing.

When judges are interpreting statutes, their aim is to give meaning to a disputed point of legislation. This process is sometimes described as deciphering legislative intent.

Melanie Field, a civil servant involved in drafting the Equality Act, clarified their legislative intent. She stated, “Their role is interpreting parliament’s intention and, in so far as they’ve sought to interpret parliament’s intention, I’m pointing out what I know about what parliament’s intention was, which was not the conclusions they have come to.” She added, “It’s not for me to say that the supreme court has got it wrong, but what I’m saying is that the basis on which the act was drafted was not to give sex the meaning that they have concluded it has.” Individuals involved in drafting legislation are not authoritative sources for legislative intent. But it is still worth noting that Melanie Field thought that the gap between how the intention of the legislation was represented in the judgement, and how it was understood by those who drafted it, was so significant she was compelled to speak of it in public.

The Equality Act is a consolidation of earlier acts, including The Sex Discrimination Act (1975) and the Gender Recognition Act (2004). I want to thank Jolyon Maugham from the Good Law Project who shared quotes from the Minister who introduced the Gender Recognition Act to the House of Lords in 2003. Lord Filkin stated the following,

On the important issue of discrimination, Clause 9 makes it clear that a transsexual person would have protection under the Sex Discrimination Act as a person of the acquired sex or gender. Once recognition has been granted, they will be able to claim the rights appropriate to that gender.

This is a clear statement of legislative intent (not just how it was drafted but presented to the House of Lords): that by transitioning, trans women will have protection under the Sex Discrimination Act as their acquired sex or gender.

Statutory Interpretation is complex: it is not always or only understood as being about deciphering legislative intent. Lord Reid once stated, “We often say we are looking for the intention of parliament, but that’s not quite accurate. We are seeking the meanings of words that Parliament used.” Courts also consider words or phrases used within a statue “according to their plain and ordinary sense, unless ambiguity or absurdity arises.” Hence sources used by courts include dictionaries. The judgement interprets sex as referring only to biological sex. So, perhaps the judges understood themselves not only as deciphering legislative intent but seeking “the meanings of words that Parliament used.”

Returning to the introduction of the Gender Recognition bill to the House of Lords, Lord Filkin also stated,

Therefore, the Bill is about legal recognition and it will define a person's sex in law. We consider the arguments about the meaning of the words "sex" and "gender" to be beside the point. There is no stark dichotomy between the meaning of the words. Language, as I said, is fluid. Our sense of the words "sex" and "gender" has changed over time and no doubt will do so in the future. While the meaning of the word "sex" is not the same as that of "gender", the word "sex" is increasingly in use in ways that go beyond a narrow biological definition.

Sex is increasingly used in ways that “go beyond a narrow biological definition.” If that was the direction of traffic, the judgement reverses the direction.

The judgement

The word “biological” does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman. These are assumed to be self-explanatory and to require no further explanation. Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group.

The first sentence of this paragraph is poorly judged. Note the shift from a singular subject (“the word ‘biological’”) to a plural (“those plain and unambiguous words”). Let us assume the subject of the first sentence is the word biological, which is not used by the EA (it is not used in defining sex - it is not used anywhere). The problem is not just that the judgement imports a word into the EA that was not there, but that it claims that word is so ordinary and obvious it does not need to be defined. Of course, the word biological needs to be defined especially if it is being used to resolve a definitional dispute about sex and gender. Biological sex is, in fact, much contested, which is precisely why there are so many disputes over who counts as women in the first place. Not only does the judgement assume the word biological is plain and unambiguous, it makes a simple correspondence between word and thing (“correspond with the the biological characteristics”).

The argument that biology is “plain and unambiguous” is still a claim about use, “We also use the expression ‘biological sex’ which is used widely, including in the judgments of the Court of Session, to describe the sex of a person at birth, and we use the expression ‘certificated sex’ to describe the sex attained by the acquisition of a GRC.” The judgement then proceeds to use the terms biological men and biological women throughout as if they are simple unproblematic descriptions and not themselves matters of contention.

Biological can mean relating to biology or living organisms. Some biologists recognise that sex is not binary. And yes, there are other scientists (such as Colin Wright) who claim that sex is binary: that there are two biological sexes, end of. They can only make such claims by excluding so much of the biological from their definition of biological sex, including hormones, for instance. This makes biological sex more of social than “scientific construct” to reuse Ruth Hubbard’s terms.

You make biological sex binary by excluding what is not binary about human life from your definition of the biological.

That’s some use.

Wittgenstein said that philosophers should bring "words back from their metaphysical to their everyday use." By this Wittgenstein meant, “we should, instead, travel with the word’s uses through a complicated network of similarities overlapping and criss-crossing.”

The judgement in evoking ordinary meaning is going in the opposite direction than the one suggested by Wittgenstein. It simply implies that the word biological is used in the same way to denote the same thing. It is not just that it gives no evidence of this but asserts there is no need to give any evidence. That is how it resolves the dispute over the meaning of sex by displacing that dispute onto the biological.

The judgement imposes a common use into a heterogeneous linguistic and social field.

The judgement is based on a metaphysical claim about biological sex rather than common use.

There are many people in the UK who do not use the word biological in the way the judgement assumes, but understand both biology and sex to be much more capacious. The judgement has also been called a “victory for commonsense.” It might be that by treating words like biological as “plain and unambiguous,” they are offering a common-sense view. That is only some people’s point of view. Philosopher Robin Dembroff talks about how when people refer to ordinary views of gender they often mean a cis person’s view. They refer to a response from a senior faculty member to a paper to a talk. “At the end of my talk, a senior faculty member asked the first question: ‘What do you think gender is?’ I responded by explaining my pluralist stance on this question. He was not satisfied. ‘I just want to know the ordinary view,’ he said. ‘Ordinary for whom?’ I replied. ‘Just the ordinary view,’ he insisted. ‘I honestly don’t understand your question,’ I said. “Ordinary for whom?’ He grew frustrated.’ Just the ordinary view! What someone in the pub would say.’”

Dembroff points out his assumption is that an ordinary person is a cis person. I suspect what is behind the judgement is a similar assumption about who is the public or what is common use.

It is worth noting that biological sex is a relatively new term. The use of the adjective biological is even more recent than biology with the earliest recorded use being 1818. The increased use of gender to denote the social meanings and social rules for women and men likely led to the specific term “biological sex” coming into wider use. It is an interesting way of showing how “gender” preceded “biological sex.”

In fact, the travels of the word biological might reflect the extent to which people are living in changed circumstances. You might refer to your biological parents when you are not living with them. Biological can be a rather queer word, reflecting changes in social forms; it is thus far from plain and unambiguous. Transition shows how bodies themselves change and mutate.

Given the varied uses of the word biological, why does the Supreme Court import that word to justify a restriction in the meaning of sex so that women does not include trans women? The judgement does not reference scientific arguments, probably because to do so would make clear the terms are disputed. Instead the claim is that the restriction is already in the act. The judgement says that EA (2010) has a “definition of sex,” which makes clear that “the concept of sex is binary, a person is either a woman or a man.” Note there is no concept of sex in the EA. There is a simple designation of two groups, men or women.

The judgement

A strong indicator that the words “sex”, “man” and “woman” in the EA 2010 have their biological meaning (and not a certificated sex meaning) is provided by sections 13(6), 17 and 18 (which relate to sex, pregnancy and maternity discrimination) and the related provisions. The protection afforded by these provisions is predicated on the fact of pregnancy or the fact of having given birth to a child and the taking of leave in consequence. Since as a matter of biology, only biological women can become pregnant, the protection is necessarily restricted to biological women.

We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.”

But it is not women’s shared biology that leads to disadvantage and discrimination. Women are not oppressed because of their biology but because of the social system. If a provision refers to women who are breastfeeding, it does not follow that all women breastfeed nor does it exclude the possibility that some people who are not women breastfeed. That the Equality Act references pregnancy and maternity is not sufficient basis for claiming that sex and woman and man should be understood as distinct biological groups. Frankly, it is a ridiculous argument.

Melanie Field has suggested that those clauses were changed on “the instruction of ministers” concerned about “promoting womanhood.” So it might be that they were included because of gender conservatism, the fear that gender equality could make a woman less womanly. Field acknowledges that these clauses undermine “the coherence of the drafting.” This helps explain why they should not be used as indicators of a coherent legislative intent.

It is precisely because sex is not a stable designation that having a model of heterogeneous social groups would be a better engine for challenging “disadvantage and discrimination.” The judgement simply inherits the limitations of the EA and then uses them to justify an even narrower interpretation of law.

Even if women are not understood as a simple biological group, we have shared struggles. And yes, we can and do talk of how those struggles are embodied. Feminists have shown how workplaces assumed a man’s body as the somatic norm. And not just a body: a man becomes an individual insofar as others care for his well-being; he has time freed from caring responsibilities so that he can participate in activities (such as after-hours meetings), which are then used to justify paying him more or promoting him more quickly.

When inequalities are explained with reference to biology (that women need such protections from discrimination because of their shared biological situation), the role of social relationships and institutional culture is obscured.

The Act in using biological sex as descriptive, is also normative. So there is no mention of intersex people. And yet intersex people exist. That is why it is helpful to think of “men” and “women” not so much as groups but as categories, a way of sorting different people into groups.

That is how mere observation – there are two biological sexes – is turned into an instruction – there will only be two sexes. You will be one or the other! Two sexes, two boxes, two doors, damn it!

Hence biology becomes the basis of an executive order in the US and of a judgement based on an interpretation of an existing act in the UK. Biology becomes not only social, but spatial or architectural. Or perhaps the becoming is the other way around: if the sex distinction was so natural, it would not need to be enforced.

The architectural becomes biological.

What is striking from a feminist point of view is that the heterosexist nature of the language of the EA. For example, it uses the language of “opposite sexes,” which we, lesbian feminists I mean, have long critiqued (historically it is how woman has been seen as not-man, an empty hole to be filled by him).

That’s another architecture of sex.

The judgement

Accordingly, a person with same sex orientation as a lesbian must be a female who is sexually oriented towards (or attracted to) females, and lesbians as a group are females who share the characteristic of being sexually oriented to females. This is coherent and understandable on a biological understanding of sex. On the other hand, if a GRC under section 9(1) of the GRA 2004 were to alter the meaning of sex under the EA 2010, it would mean that a trans woman (a biological male) with a GRC (so legally female) who remains sexually oriented to other females would become a same sex attracted female, in other words, a lesbian. The concept of sexual orientation towards members of a particular sex in section 12 is rendered meaningless. It would also affect the composition of the groups who share the same sexual orientation (because a trans woman with a GRC and a sexual orientation towards women would fall to be treated as a lesbian) in a similar way as described above in relation to women and girls.

Fuck that: speaking as a lesbian, these arguments about lesbians are profoundly anti-lesbian. Lesbians often experience what Judith Butler called “gender trouble.” Some of us identify as non-binary. Some of us as trans. Some of us who see ourselves as women are not seen as women. This might be because some of us are gender non-conforming or because when two women are together, one of you is often misgendered as presumed heterosexuality remains the default position.

The judgement

Evidence referred to by the second interveners suggests that this is having a chilling effect on lesbians who are no longer using lesbian-only spaces because of the presence of trans women (ie biological men who live in the female gender).

This is frankly bullshit. Many lesbians will be more at home in LGBTQIA+ positive environments and less at home in women’s groups (at least those with women who self-identify as natal or biological women, i.e. “gender critical” women’s groups). Research has shown that lesbians are more likely to be supportive of trans rights than other social groups: probably because we know what it is like not to be seen as real or authentic. Lesbian culture and history have been full of transgressions of the rules around gender. We have also shown how “biology” can be queer rather like how we make our own families (another use of biology is in reference to relations – as Sarah Franklin has shown, biology has become more relative and flexible).

If there are fewer lesbian-only spaces now than before that is more to do with our lack of money and social resources than the presence of trans people. Trans and queer and lesbian worlds are overlapping and have always been so: we have so much in common because of our differences from straight cis culture. Many lesbians are in relationships with people who transition. They are still lesbians.

We are used to change. We have had to be.

Let us return to how the idea of two distinct biological sexes has a normative function. It is assumed we can always tell the difference between men and women. But it not always clear. And the assumption that it is always clear leads to harassment of many gender nonconforming people.

The judgement

On the contrary, if sex means biological sex, then provided it is proportionate, the female only nature of the service would engage paragraph 27 and would permit the exclusion of all males including males living in the female gender regardless of GRC status. Moreover, women living in the male gender could also be excluded under paragraph 28 without this amounting to gender reassignment discrimination. This might be considered proportionate where reasonable objection is taken to their presence, for example, because the gender reassignment process has given them a masculine appearance or attributes to which reasonable objection might be taken in the context of the women-only service being provided. Their exclusion would amount to unlawful gender reassignment discrimination not sex discrimination absent this exception.

This restriction on the meaning of sex to a narrow idea of biology is used to justify the exclusion of trans women from women’s spaces. That is in essence the point of the restriction and also the goal of the appellant.

This does not make us any safer. If anything, it makes many women less safe in the very spaces they need to access, sometimes to escape violent men, many of whom are known to them, partners not strangers.

Why less safe? The clue is in the argument that trans men (understood as biologically women in the conservative language of this decision) could be excluded (without it being unlawful gender reassignment discrimination) if they have been “given a masculine appearance or attributes” by a “gender reassignment process.” The assumption is that transition gives some women a masculine appearance. But if such women can be excluded because of having “masculine appearance or attributes,” then it follows that it would be reasonable to exclude any women who have “masculine appearance or attributes.” Because, as many of us know, many women appear to other women as not feminine enough or as too masculine. Many women, cis and trans, are harassed when they enter women’s spaces because they are not seen as women (and are assumed to be trans whether or not they are).

Note it does not make the harassment worse that it can be directed against cis women as well as trans women. It is already worse. That it can be so directed just tells us something about how sex and gender operate as systems to police how women appear. Historically, some masculine appearing women have been told to get out of women’s spaces because they are assumed to be dykes or just because they make other women feel uncomfortable.

The conflation of feminine appearance with women is a product of the coercive nature of the sex-gender system.

You might fucking know this - I am addressing you, the judges - if you talked to feminists other than the tiny group who have been inflated to speak on our behalf. Speaking of inflation, almost all the language in the judgement is more or less directly imported from “gender critical” feminism. As Kaylin Hamilton writes, “The lack of trans input and the influence of transphobic groups is clear throughout the judgement, which consistently uses ‘gender critical’ language and at times reads like a press release from Sex Matters or For Women Scotland. Only it’s from the Supreme Court. If there is such a thing as ‘ideological capture,’ then this is it, and it’s happened to the highest court in the land.”

We can return to the patriarchal hammer.

“Gender critical” feminists Sophie Allen, Jane Clare Jones, Holly Lawford-Smith, Mary Leng, Rebecca Reilly-Cooper, and Kathleen Stock once wrote, “Given the occasional fallibility of our capacity to sex others, arguing for same-sex spaces for females, such as bathrooms, dormitories, and changing rooms, means that sometimes, females in those spaces will be missexed; and sometimes, males in those spaces will not be perceived as such. We see the former as a regrettable cost that has to be balanced against, and is nonetheless smaller than, the greater harms to females, should women-only space effectively become unisex via a policy of self-ID.”

For harassment against gender non-conforming women to be presented as a “regrettable cost” is telling us about the costs of this work. Perhaps you are also being told, that if you don’t want to be in harm’s way, you should change your ways, that if you don’t want to be questioned about your right to be in a women’s space or facility, you should try to appear more like women are meant to appear. This is an argument for gender normativity even if it is not put in these terms, a claim that it would be safer and thus better for girls to be girls (and for us to be able to tell that the girls are girls) and boys to be boys (and for us to be able to tell that the boys are boys). Any demand that people clearly be men or women, let us be clear, is the patriarchal world view.

And let us be clear, that demand to be clearly women has never kept women safe. If anything, clarity can be directly linked to control – of women and our bodies.

The idea that there are two sexes, that we can always tell them apart, is the patriarchal hammer, used to flatten so many of our differences and to direct us in often violent ways down narrow routes. That violence of that instruction is mostly felt by those who refuse to go along with it or who cannot go along with it. Yes, this kind of feminism, which makes what patriarchy effects into its cause (the enforcement of the distinction between two sexes) is appealing to conservatives and fascists world over. So, when you see “gender critical” feminists congratulating each other on their latest legal win, just remember, they are giving the patriarch more tools, turning biology into his hammer.

It is not just a hollow victory.

It is the patriarch’s victory.