Many have lauded the Utah Compromise of 2015, which saw the Utah Legislature adroitly balance the right to nondiscrimination in employment and housing on the basis of sexual orientation or gender identity with the right to expression and practice of religion. Among others, Jonathan Rauch has praised that compromise as a model for the whole nation.
In January, Rauch spoke at Brigham Young University, where he praised the contribution of The Church of Jesus Christ of Latter-day Saints to a new civic ideology that might help a pluralistic nation navigate its inevitably choppy waters.
This same spirit has animated Wednesday’s ruling from the Supreme Court of the United Kingdom. For more than a decade, there has been increasing tension between sex-based rights and gender-identity-based rights, which sprang up in 2005 after the U.K. created “gender recognition certificates,” or GRCs, that allow the government to treat the bearer of such a certificate as having a different sex designation than that with which they were born.
Specifically, the challenge came when women’s rights to single-sex spaces, sports and quotas hit a definitional pothole: Was the holder of a GRC declaring one to be a woman entitled to access these things? The question of “what is a woman?” became a pressing political controversy. Under U.K. law — the Equality Act of 2010 — it is illegal to discriminate on the basis of sex as well as on the basis of gender reassignment.
Confusion and acrimony reigned for years, and the U.K. government did very little to clarify the matter. This extended to many parts of civil life, touching on prison and shelter placements, sports qualifications, policies on changing rooms and restrooms, provisions of intimate care in nursing situations and many others. During this period of confusion, U.K. Courts deemed the belief that a man cannot become a woman as “not worthy of respect in democratic society” in 2019 and then spectacularly overturned in 2021, when it was ruled a “protected belief.”
Even so, protecting a belief in the materiality of sex did not solve the key policy conundrum of who is to be treated as a woman under U.K. law. In its 88-page judgment, the U.K.’s Supreme Court ruled that a GRC does not change a person’s sex under the Equality Act. That means that anyone and any institution or entity that provides for single-sex spaces, sports and quotas can no longer be sued for discrimination under the Gender Equality Act, even if an individual holds a GRC.
This is momentous — as momentous as the cutting of the Gordian knot by the Utah Compromise in 2015. The ruling allows a way for a pluralistic society in which some citizens believe sex cannot be changed and others believe differently. GRCs will still be issued; any discrimination in housing, employment and so forth on the basis of gender reassignment is still discrimination and therefore illegal. But the separation of the sexes in places and spaces where bodies matter is not discrimination.
The original case was brought by For Women Scotland, a small grassroots organization started by three Scottish women, Trina Budge, Susan Smith and Marion Calder, with regard to a Scottish law mandating 50% female representation on public boards. Does an individual born male but holding a GRC count as a woman for meeting this mandate? One could imagine that the clear intent of the law might be completely subverted depending on the definition of “woman.” For Women Scotland’s challenge to the Scottish government’s interpretation was rejected by the Court of Session’s Outer House in 2022, and again by the Inner House in 2023, but the organization appealed to the Supreme Court.
The five justices of the U.K. Supreme Court reached their unanimous verdict in straightforward fashion. They note “it must be possible for sex to be interpreted in a way that is predictable, workable and capable of being consistently understood and applied in practice. ... An interpretation that produces unworkable, impractical, anomalous or illogical results is unlikely to have been intended by the Legislature.” While we may think the justices might have too high a view of the rationality of legislators, they take from this reasonable assumption that:
“The definition of sex in the Equality Act of 2010 makes clear that the concept of sex is binary, a person is either a woman or a man. Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men. Although 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.”
Moreover, the justices do not leave to the imagination the scope of this insistence on a biological definition of sex. They explicitly state in the ruling that this definition applies to “changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes) or medical or counselling services provided only to women (or men) — for example cervical cancer screening for women or prostate cancer screening for men, or counselling for women only as victims of rape or domestic violence.”
In addition, it is not only service providers but also self-organized bodies that must have the right to define a single-sex mission: “A certificated (GRC) sex meaning applied to these exceptions would make it impossible for any women’s association or charity — including, for example, a mutual support association for women who are victims of male sexual violence, a lesbian social association, a breastfeeding support charity — to be set up or to pursue a dedicated purpose which is directed at the needs of biological females.” The justices also said sports should be understood as organized on the basis of a biological definition of sex, as also the collection of data by government entities, such as census data and pay data.
In sum, the U.K. Supreme Court has offered welcome clarity on a subject that has caused great confusion in policy and law. As Maya Forstater has commented, “The court has given us the right answer: The protected characteristic of sex — male and female — refers to reality, not to paperwork.”
This is a wise compromise, with protections for all, and will doubtless have as great international influence as the Cass Review did on pediatric gender treatment, another product of sustained U.K. deliberation. The United Kingdom is worthy of all our thanks for their uncommon good sense.