What is a woman?
The UK Supreme Court to hear oral arguments on November 26-27th
In a case brought by For Women Scotland, five justices sitting in the highest court in the UK are to spend two days listening to opposing views on the definition of “woman” in the Equality Act 2010. Rival interpretations of this piece of legislation have been in conflict for years. Is a man with a piece of paper saying he is a woman – a Gender Recognition Certificate -- indeed a woman for all purposes? It’s a red-hot issue and the Supreme Court has to resolve the matter. For British women, the stakes could scarcely be higher.
It may not have crossed many people’s minds that any definition of “woman” impacts doubly on lesbians. Apparently the significance of this definition to lesbians is not obvious. When the Equality and Human Rights Commission noted at a lower court: “If sex means legal sex, then sexual orientation changes on acquiring a GRC,” the court admitted it could not understand the point made: in her judgment, Lady Haldane stated: “We confess that we have not found it easy to follow this particular submission. It is not a necessary inference from Section 9 of the GRA that a person’s sexual orientation changes on acquiring a GRC. There is no such thing as being ‘legally lesbian’ and we have not identified a problem which would require that sex be referable to biology alone.”
What is depressing is not just the lack of comprehension but the evident lack of interest and imagination. Sexual orientation is about bodies. Heterosexual people are attracted to people of the opposite sex; gays and lesbians to people of the same sex. If a heterosexual man obtains a piece of paper saying he is now (legally) a woman, then he can ‘legally’ call himself a lesbian. But he is obviously not a lesbian in any rational sense. No one is sexually attracted to a piece of paper. If he is ‘legally’ a lesbian, the law is an ass.
The damage inflicted on lesbians by society’s refusal to acknowledge our sexual orientation should not be underestimated. In 2022, Kate Harris and I (we are the founders of LGB Alliance) found ourselves in court, answering a challenge to our charitable status brought by the trans youth charity Mermaids. Kate was asked on the witness stand to consider other definitions of “lesbian” than the one she had given. “You mean that some lesbians have penises?” she said, and then briefly broke down in pain and fury at having to counter this idiotic and offensive suggestion. When she recovered her composure, she said resolutely “I’m going to speak for millions of lesbians around the world who are lesbians because we love other women. We will not be erased and we will not have any man with a penis tell us he’s a lesbian because he feels he is.”
Another extraordinary courtroom exchange that amounted to an assault on the integrity of lesbian sexuality occurred during a case brought by the former barrister Allison Bailey against Garden Court Chambers and Stonewall. Bailey was explaining why a course taught to “transwomen” (natal males) in which they were taught techniques they might employ to overcome the “cotton ceiling” was deeply offensive. For those fortunate enough not to be acquainted with this term, it refers to lesbians’ underpants. In other words, the course aimed to help attendees learn ways of persuading reluctant lesbians into bed. One of the witnesses asked to process this information, herself a senior barrister, mused that attempts to overcome the “cotton ceiling” could be compared to attempts at reconciliation in post-Apartheid South Africa. This obnoxious comparison took my breath away.
Such comments are not only callous and completely inappropriate, but they are blithely innocent of the fantasies of a large proportion of straight men about lesbians. Those who play so casually with such definitions and comparisons may be unaware that “lesbian” is the most popular category of pornography. The pornification of our most cherished loving relationships has always been a particularly unpleasant aspect of society’s attitude to lesbians. In the 1970s, I remember two remarks in particular that straight men used to direct at me, both delivered with an oily smirk: One was a question: “What do you do?” The other was a porn-driven “confession”: “I feel like a lesbian inside.” Yes, many straight men get off on imagining themselves women – imagining themselves lesbians. And if society – and the law – legitimizes this paraphilia, if it says “Yes, you are now lesbians” – it is a treacherous blow to women who love other women.
So LGB Alliance and several lesbian groups are intervening in the case before the Supreme Court. We wish the Court to know that our own word for ourselves is not up for grabs. If the Court decides that a straight man with a Gender Recognition Certificate is a lesbian under the law – and is therefore legally entitled to enter all lesbian spaces, then the law will have to be changed.
You can watch the oral proceedings on YouTube on Tuesday and Wednesday November 26-27th.
https://youtube.com/@UKSupremeCourt/videos
Dear Bev: We are all sending a multitude of good thoughts on the For Women Scotland case. Meanwhile, back here at home, there is something I wanted to thank you for, particularly: which is how helpful you have been on articulating concepts relating to LGB v TQ+ that enable so many of us to better articulate these points ourselves. Just today, in commenting back to the journalist of a NY Times article on things trans, I had you much in mind. It was your words that helped me articulate the following (though you are not responsible for my use of them, to be sure):
Here's what I wrote: "As an “L” of 75 years, I would just appreciate it very much if folks would stop using the phrase “LGBTQ ”, let alone the rest of the alphabet soup. This collection of letters does not constitute a coherent community of interest in any respect. It is a bit like calling everyone who is not white part of a single community. To learn more about the problems inherent in conflating issues of sexual orientation (LGB) with issues of identity (TQ ), I commend the information and materials put out by the LGB Alliance in the UK."
Many, many thanks to you and all at the LGB Alliance.
I'll be watching today. The idea of losing this case is just terrifying.