It’s a sign of the times that the Supreme Court’s judgment on the definition of a “woman” was met with such widespread celebration. Just thirty years ago, the idea that the highest court in the land might be consulted on such a rudimentary question would have seemed absurd. Today, the Court’s decision is being lauded as an important victory for truth, feminism, and biological reality.
But why do we need a legal definition of “woman” in the first place? The problem arises when two pieces of legislation interact. First, there’s the Equality Act 2010, which provides special protections for women on the basis of their sex. Second, there’s the Gender Recognition Act 2004, which creates the concept of “legal sex”, allowing transgender people the opportunity to obtain “gender recognition certificates”.
This particular case concerns Scotland’s Gender Representation on Public Boards Act 2018, which aims to increase the number of women employed in senior public sector roles. According to statutory guidance laid down by Scottish ministers, the new law would “follow the Equality Act” and include transgender women with a GRC within the definition of “woman”. In other words, for the purposes of this Act, the Scottish Government’s position was that “woman” ought to be understood as a legal category, rather than a purely biological one.
Clearly, the Supreme Court disagreed, clarifying that the Equality Act’s definition of “sex” was purely biological in character.
But this judgment raises a few difficult questions, which seem to have been ignored amongst the jubilation. First, doesn’t the Court’s decision fundamentally undermine the idea of “legal sex”, as created by the Gender Recognition Act 2004? We might reasonably argue that such a category should not exist — but shouldn’t that decision ultimately be made by Parliament?
Second, isn’t the more fundamental problem the fact that, because of ridiculous equalities legislation, we need a definition of “woman” in the first place? Should we really be celebrating a decision which is, ultimately, about protecting the right of women to receive favourable treatment from the state? While I do believe that the definition of “woman” is ultimately a biological one, I don’t believe that the British state should provide anti-meritocratic benefits to any group. However we define “woman”, I don’t think that women should receive preferential hiring conditions for public sector roles.
Instead of pitting two pieces of bad law against each other, wouldn’t it be better to repeal them both, and be done with the whole sorry notion of “equality law”?
Rather than permitting discriminatory treatment in favour of some groups but not others, the state ought to operate on the basis of merit alone. No special benefits for any group — save for citizens over non-citizens, a fundamental distinction if we believe that Britain ought to be a nation-state.
Private citizens and organisations, meanwhile, ought to be allowed to discriminate according to their own preferences. We might find this reprehensible, in some cases, but should we really make it illegal — particularly when it creates the need for absurd legal arguments about how to define particular groups?
If we believe in the fundamental importance of free association, then we should be comfortable with the idea that the sanctions for discrimination ought to be social and economic, rather than legal. If we really believe that hiring on the basis of particular characteristics is anti-meritocratic, then we ought to be willing to allow businesses who behave in this way to fail. Likewise, if we believe that clubs with discriminatory membership criteria are disagreeable, we ought to express our distaste by boycotting them.
No group … should benefit from special legal protections, or favourable treatment in public sector hiring
Rather than fighting to police the boundaries of the special treatment afforded to particular groups, we should instead be working to dismantle that special treatment altogether. No group — women, transgender people, black people — should benefit from special legal protections, or favourable treatment in public sector hiring. These simple ideas — meritocracy, equality before the law — used to be core to our identity as a nation. Sadly, it seems that even sensible figures have abandoned these ideas, in favour of zero-sum jostling over which groups should and should not receive special treatment.
Unfortunately, this is nothing new. Blame is often laid at the feet of the Equality Act 2010; critics argue that this was the law which introduced “special protections” for protected groups into UK law. In recent years, equal pay decisions against businesses like Next and Asda show how damaging the Equality Act can be — allowing judges to tell businesses how to pay their staff.
But in fact, the UK has undermined freedom of association for decades. The Equality Act accelerated the process, but was itself based on existing legislation, such as the Equal Pay Act 1970, the Sex Discrimination Act 1975, and the Race Relations Act 1976. All of these laws restricted the right of private citizens, businesses, and organisations to discriminate — and laid the groundwork for the special treatment that we now see for “marginalised groups”. The “Diversity, Equity, and Inclusion” agenda, which is now so unpopular amongst figures on the right, is the direct consequence of these earlier reforms, which made proscriptions about who businesses could hire and on what terms, what people could and could not say to one another, and which associations could bar people from membership based on particular characteristics.
When these initial reforms failed to produce a society characterised by totally equal outcomes, proponents of “equality law” went further. They created bespoke schemes to benefit particular groups; they advocated for a more activist state, willing to go further in pursuit of equal outcomes.
Many critics of DEI will still defend those earlier steps taken in the name of “equality”. This is a mistake. The fundamental problem is with the idea that the state has a duty to ensure “equality” in the first place, an idea which inevitably led us to our current predicament. It is this fundamental belief which creates the need to define different groups, and design schemes which benefit groups considered to be “disadvantaged”.
In short, we only needed to define what being a “woman” meant, because we decided that the state ought to intervene in favour of women. In an equality-blind state, women would be free to set the limits of “women-only” spaces in whatever way they wanted. Likewise, private institutions would be entitled to set their own definition of what constitutes a “woman”. If you find that definition disagreeable, then you are — of course — free to voice your displeasure.
But until we begin to move towards a world in which the state doesn’t feel the need to intervene in the name of “equality”, true victory will never be achieved. Other cases will arise, other conflicts will emerge, and we will once again find ourselves debating absurd questions like “what is a woman”. It would be far better for everyone to do away with the whole notion of “equality law”. “Woman” might be fairly easy to define, if nothing else, but “equality” is very much not.
