On Wednesday five justices of the UK Supreme Court (UKSC) decided that a woman is a person born biologically female. The judgement is long and technical and the UKSC was anxious to persuade the parties and their supporters that there were no winners and losers in the outcome. 

Actually, the court struck a fair balance between the rights of women to their single sex spaces and services – toilets, changing rooms, hospital wards, prisons and sports competitions – against the right of trans women to live parallel lives as women until biologically female women cease feeling threatened by trans womanhood.   

When a woman gives birth to a child its parents check its anatomy down below and declare its sex to the registrar of births. If male at birth a person remains biologically male for life even though she obtains a gender recognition certificate saying she is a woman. That much is obvious not because trans women are not entitled to change their sex and become women, but because they are not the same as biological women whose needs and fears are different.

When there is disharmony between a person’s sex registered at birth and how he or she feels as they grow older, there is a problem that requires sympathy and understanding. Transsexuals suffer from gender dysphoria which according to Lady Hale in another Supreme Court judgement is “an overwhelming sense that one has been born into the wrong body, with the wrong anatomy and the wrong physiology”.

I represented a trans woman a few years ago and observed her overwhelming urge to transition firsthand. She had been in a gay marriage but her husband – an EU national resident in the UK – divorced her because he found out she was planning to transition into a woman and he was only interested in a gay relationship. As a result of the divorce my client was going to be deported to a trans intolerant country and engaged me to argue her appeal against deportation. The appeal was successful as she was halfway into transitioning and the judge held it would be cruel and inhuman to deport her.

The rights of transexuals to gender certification in UK were given a boost by the European Court of Human Rights (ECtHR) decision in Goodwin v UK in 2002. In that case it was held that the situation of transsexuals in which they are forced to live with an indeterminate status which is not quite one gender or the other is no longer sustainable. It was not satisfactory for the condition of gender dysphoria to be a recognised medical condition that made surgery permissible under the National Health Service (NHS), but for the state not to recognise gender reassignment.      

It was as a result of the Goodwin case that the law was changed and gender recognition certification became possible in UK. By the Gender Recognition Act 2004 persons suffering from gender dysphoria could obtain a gender recognition certificate if they lived in the acquired gender for two years and intend to live as such until they die. In such cases they are entitled to a certificate confirming their acquired gender.

The problem arose because Scottish ministers in the devolved government of Scotland issued guidance to public authorities on how best to achieve sex equality for women. The guidance defined the term woman as including a man who had obtained a gender recognition certificate and that this definition was in accordance with the UK Equality Act 2010 (the EA 2010).

The appellants in the UKSC challenged the definition of woman in the guidance. The question for the court was as to the meaning of the words “woman” and “sex” in the EA 2010. The equality legislation consolidated and rationalised anti-discrimination law in UK. It defines and prohibits unlawful discrimination. It does this by identifying protected characteristics and makes discrimination on those grounds unlawful civil wrongs.

Sex, sexual orientation and gender recognition are discrete protected characteristics, but the Supreme Court was most impressed by references in the EA 2010 to women protected from discrimination owing to pregnancy, breast feeding and taking maternity leave. The court said these references to women were strong pointers that the intended meaning of woman in the EA 2010 could only be to biological woman since trans women could not become pregnant or breast feed or go on maternity leave. In any case gender reassignment was a protected characteristic independently of sex, which had to be confined to persons biologically male or female.

The decision of the UKSC insisted that its decision is confined to the interpretation of the words “sex” and woman in a “statute” which is true but slightly disingenuous. As the court acknowledged, in deciding the meaning of words in the law, the court places itself in the position of the citizen and what he or she would understand by the use of the word “woman”.

People’s sexuality and gender identity in later life is more complex than binary heterosexuality and most people in UK get that. Not for nothing has the acronym LGTBQ+ been devised to call attention to the fact that there is a substantial community of people worldwide who are not heterosexual or cisgender. LGTBQ+ stands for lesbian, gay, transexual, bisexual and queer people plus others of indeterminate sexuality and is a work in progress in the protection of their rights.

In some societies homosexuals face pressure to suppress their homosexuality, but in western liberal democracies homosexuality is no longer the unacceptable sexual orientation it used to be.

In the end transsexuals will achieve the same equality and respect in liberal democracies as homosexuals have done, but this would be easier to achieve if they avoid clashes with womanhood.