WeeklyWorker

24.04.2025
Full Supreme Court line-up

Case of judicial usurpation

The Supreme Court decision on the legal definition of ‘woman’ poses more questions than it answers, but there can be no doubt that it marks a huge victory for the Tory Party and the rightwing media, says Mike Macnair

My Online Communist Forum talk is titled ‘Usurping the legislative power in the interests of Tory Party and Tory press campaigning’, and its subtitle was the name of the case: For Women Scotland Ltd v the Scottish Ministers. I have to apologise at the outset because some of this is going to be slightly technical law.

I start in perhaps a slightly surprising place in the 1970s and the Centre Point tower block, near Tottenham Court Road station, which was put up in the 1960s and consisted at the time mainly of office space, but with some maisonettes. It was left vacant, because that gave a saving on the rates, while the developer could speculate on the expected rise in the property values. In consequence, in January 1974 it was squatted by homelessness campaigners - being property intentionally left vacant in the context of the London housing crisis, a crisis which has got significantly worse since the 1970s.1

Camden London Borough Council then attempted to compulsory-purchase the luxury maisonettes in Centre Point for the purpose of using them to house the homeless under statutory powers that it had for this purpose. This proposal, naturally enough, attracted a Tory press campaign: the council was ‘wasting money’ on the homeless by trying to expropriate luxury properties to house them.2

The owners sued to invalidate this compulsory purchase, in the case of Sovmots Investments v Secretary of State for the Environment; and Forbes J, the judge at first instance, agreed with them (July 16 1975), on the ground that the local authority had no power to compulsorily-purchase rights that did not previously exist, but which were needed for the maisonettes to be habitable: the ‘easements’, rights of access for water, sewage, electricity and so on. The Court of Appeal (July 9 1976) perfectly sensibly reversed this, and decided that it is legally permissible for local authorities to compulsory-purchase flats or maisonettes that are above ground level; and hence, by necessary implication, they must have the power to acquire the easements.3

This decision in the Court of Appeal was politically embarrassing to the Conservative Party, and the House of Lords (April 28 1977) reversed it. The ground of decision was that the local authority does not have the power to compulsory-purchase the easements. Nor could the easements be “implied in” to the deed of conveyance of the maisonettes under common law (because the conveyance was not voluntary), or under section 62 of the Law of Property Act 1925, which implies various rights into conveyances, because there were no pre-existing easements.4 Therefore the Conservative press campaign was right: Camden Council was wasting money trying to compulsorily purchase the maisonettes. Success for the Conservative Party.

The decision was, however, violently inconvenient. It was sufficiently so that the Conservative government of Margaret Thatcher reversed by statute the core decision, that new easements cannot be compulsorily purchased. By Part V and schedule 3 of the Acquisition of Land Act 1981, the local authority gets a clear statutory power to compulsorily acquire new easements for property where needed.

The Sovmots rules about implied easements more generally have become controversial, and in Platt v Crouch in 2003, Kent v Kavanagh in 2006 and Wood v Waddington in 2015 the Court of Appeal offers divergent views about them.5 Kent v Kavanagh follows Sovmots; Platt v Crouch and Wood v Waddington do not. Now, normally in legal precedent, House of Lords decisions bind the Court of Appeal, so that Kent should be right and Platt and Wood wrong. But in practice Sovmots is not treated as authoritative (it is not even cited in Platt and Wood). The underlying reality, that lawyers cannot say openly, is that Sovmots cannot really be treated as an authoritative precedent, because it was simply a decision with a view to avoiding political embarrassment to the Conservative Party.

For Women v Scottish Ministers, in my opinion, is the same as Sovmots: a decision in which legal reasoning is subordinated to the political interests of the Conservative Party.

UKSC

The UKSC decision reverses the decision below of the Inner House of the Court of Session (the Scottish equivalent of the English Court of Appeal). In this case (unlike Sovmots), the Inner House had upheld the decision at first instance of the Lord Ordinary. So the UKSC decision presents a narrow majority: five judges in UKSC overruling four, the Lord Ordinary plus three judges in the Inner House.6

The disputed issue is much narrower than the UKSC makes it. By section 1 (1) of the Gender Representation on Public Boards (Scotland) Act 2018, “The ‘gender representation objective’ for a public board is that it has 50% of non-executive members who are women.”7 This is, clearly enough, part of the usual managerialist project of the proportional ‘representation’ of oppressed groups in elite institutions.8

The Scottish government’s project (following Theresa May) of gender recognition on the basis of self-identification having previously been defeated by the Tory government and in court, Scottish ministers have still issued guidance on this section:

There is no definition of ‘woman’ set out in the Act with effect from 19 April 2022 following decisions of the Court of 18 February and 22 March 2022.

Therefore ‘woman’ in the Act has the meaning under section 11 and section 212(1) of the Equality Act 2010. In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.

The narrow question is: is this guidance, for the purposes of a 50% women rule for quangos, legally valid?

This issue is not about gender self-identification - the original kick-off for the British side of this debate. To have a full gender recognition certificate under the 2004 act, the holder has to have been issued an official certificate, on the basis that the applicant (a) has or has had gender dysphoria, (b) has lived in the “acquired gender” for two years immediately prior to applying, (c) intends to live in that gender until death, and (d) has provided medical evidence of gender dysphoria and a statutory declaration in relation to their marriage status. This is a much narrower group than trans people generally, and mostly consists of people who have had surgery and are continuing hormone treatment. Indeed, the reason for the original self-identification gender-recognition proposals was that Theresa May - and, at that time, a majority - recognised that it was too difficult to get a certificate under the 2004 act.

The decision in the Court of Session, in essence, is that the way in which the Gender Recognition Act 2004 is drafted means that reference to sex cannot mean simply a reference to biological determination. Thus, for example, at paragraph 37:

The legislation achieved that change in strong, clear and unequivocal terms in section 9(1) by providing that, where a certificate has been issued, the person’s gender becomes “for all purposes” the acquired gender, so that, if the acquired gender is the male gender, “the person’s sex becomes that of a man” and, if it is the female gender, “the person’s sex becomes that of a woman”. It could hardly be more clearly stated that in this connection there is no distinction between sex and gender, and that reference to sex within the GRA is not a reference to biological determinants. This is not surprising, given that, as the court noted in Fair Play for Women, there is generally no default meaning of sex or gender, and the terms are frequently used interchangeably …

Rather, the word ‘woman’, in the Gender Recognition Act 2004 and the Equalities Act 2010 read together, has different meanings, depending on the particular context: so that trans women can be women for some purposes, and at the same time not be women for other purposes. Those different purposes essentially reflect the judgments that were made by parliament in 2004 and 2010. This point is an important point. Parliament, having said in the GRA that where there is a gender recognition certificate, the person’s sex is taken to be that of the acquired sex, then produces a series of specific carve-outs in relation to, for example, service in the armed forces, prison, and so on.

Now, we may well disagree with the choices that were actually made in parliament in relation to either the primary rule or the carve-outs. But these are choices that were made by parliament in the legislation on the basis of extensive discussion, and so on. It is not the job of the courts to substitute their choices for those of parliament. Hence, the Court of Session’s judgment seems to be that of a court attempting to loyally apply statute law.

Two sexes

Turning to the UKSC, in paragraph [265], which is not the final paragraph, the judges say, “We are aware that this is a long judgment …” It is indeed: 88 pages in pdf. The sheer length of the judgment buries all the argument on the core question in a mass of narrative history and textbook-style writing, whose purpose is merely rhetorical support of their conclusion.

What, then, are the central operative points in this long judgment? First, the word ‘woman’ has to have one meaning throughout the statute and cannot have different meanings for different purposes (having regard to the carve-outs, and so on). Secondly, that meaning is biological sex. And thirdly, there are only two sexes. These operative arguments are framed by claims at the beginning of the judgment about the interpretation of statutes, which amount to a claim of judicial supremacy over parliament, and argument at the end of the judgment in which the court is, in my opinion, using reasoning that is only appropriate to a legislator, and which would be appropriate reasoning in a discussion in parliament, but is not appropriate reasoning for a discussion in court.

To start with the first operative point that there is only one meaning, the justification is offered at paragraphs 12-13:

12. As Lord Hope DPSC stated in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153, at para 14, “The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. This will be achieved if the legislation is construed according to the ordinary meaning of the words used.”

13. The presumption that a word has the same meaning throughout the Act when used more than once in the same statute is consistent with this principle: see Bennion, Bailey and Norbury on statutory interpretation, 8th ed (2020) para 21.3. That presumption is based on the idea that the drafters of the statute were seeking to create a coherent statutory text.

Whenever judges claim that they are relying on the ordinary meaning or the ordinary natural meaning of words, we should assume that they are about to make an arbitrary decision. Here they are about to reverse the judgment of four judges below. So the meaning of the word is precisely not ‘ordinary’, but ‘controversial’. In reality, predictable outcomes are more likely to be achieved by purposive interpretation than by alleged ‘ordinary meanings’.9

Secondly, this meaning is to be biological. A series of separate paragraphs contain the spin (it cannot really be called an argument). For example:

158. There is no provision in the EA 2010 that expressly addresses the effect (if any) which section 9(1) of the GRA 2004 has on the definition of ‘sex’ or the words. ‘woman’ or ‘man’ (and cognate expressions), used in the EA 2010. The terms, ‘biological sex’ and ‘certificated sex’, do not appear anywhere in the Act. However, the mere fact that the word ‘biological’ is absent from the EA 2010 definition of ‘sex’ is not by itself indicative of Parliament’s intention that a ‘certificated sex’ meaning is intended. The same is true of the absence of the word ‘certificated’ in the definition of ‘sex’.

171. The definition of sex in the EA 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.

Thirdly, there are only two sexes. That is already there in these quotations, but is also reaffirmed at para [97]: “legislation across the statute book assumes that all individuals can be categorised as belonging to one of two sexes or genders and those terms have been used interchangeably”.

I add that “only two sexes” seems to be absolutely fundamental to the argument in the UKSC. The court is legislating a Christian-fundamentalist view of Genesis 1, 27: “male and female created he them”. Intersex people, it appears, do not exist. For this purpose it is quite irrelevant whether they are 1.7% of population (A Fausto-Sterling and UNHCR) or 0.018% (L Sax and K Stock): they exist and the biological claim for rigorous binarism is thus false (I point out that Roma are 0.0013% of world population). The claim that the UKSC decision is a victory for ‘common sense’ is thus analogous, if on a much smaller scale, to the claim of the early Christian writer, Lactantius (c250-c320 CE), that the flat-earthism he detected in the Bible was more common sense than the implausible speculations of the pre-Christian philosophers that the earth might be round.

Interpretation

The three core claims, then, concern only one meaning; that meaning is biological; and only two sexes. Backing up these claims are arguments about how courts ‘interpret’ acts of parliament. ‘Interpret’ in quote marks, because this is some way from what one would ordinarily call interpretation.

Firstly, the court says at paragraph [81] that they will not use the explanatory notes published with the GRA 2004, and at paragraph [104] that these notes are simply wrong. This has provoked a sharp criticism from Melanie Field, the former official concerned in drafting the Equality Act 2010.10 The explanatory notes in the GRA do say that the legal sex of a person who has a full gender recognition certificate is changed. They were published with the bill and formed part of the reasons MPs voted to pass it.

If the explanatory notes had said the legal sex of the person who has a full gender recognition certificate will not be changed, but there will be a new ‘third category’, or whatever, it is unlikely that the legislation in that form would have passed parliament. This is partly because the point of the 2004 act was to avoid the UK having to repeatedly pay out damages to trans men and trans women in the Strasbourg European Court of Human Rights, because the ECHR had held that UK law denying recognition to sex changes was a violation of the European Convention on Human Rights. The refusal to use the explanatory notes here is strikingly artificial reasoning. Again, we do not have to agree (whichever way) with what parliament decided in 2004, or with the prior decisions of the ECHR. The point is that the refusal to use the explanatory notes signals that the UKSC is not seeking the intention of parliament, but to oppose this intention.

Secondly, at paragraph [9] the court (adopting a statement in an earlier case) says: “… Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered …” Not an objective assessment of the meaning, which parliament actually sought to convey, but an objective assessment of the meaning that “a reasonable legislature ... would be seeking to convey in using the statutory words”.

What does a reasonable legislature mean? Back in 1955 Lord Radcliffe in Davis v Fareham UDC - a case about contract terms and unexpected circumstances that change the effect of the contract from what the parties originally intended - offered an explanation of the “reasonable man”:

… it might seem that the parties themselves have become so far disembodied spirits that their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is, and must be, the court itself11

The ‘reasonable man’, then, means simply what the court thinks is reasonable. So if we interpret acts of parliament on the basis of what a reasonable legislature is taken to have intended, it means merely on the basis of what the current members of the court think is reasonable.

This takes us back to a relationship between the courts and parliament before the revolution of 1688. Back, indeed, to Doctor Bonham’s case in 1610, and Sir Edward Coke’s claim in his report of that case that “in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul it, and adjudge such Act to be void”.12 That is, where an act of parliament is impossible or logically incoherent (taking us back to the “coherent statutory text” in paragraph [13] to require a single meaning of the word in all contexts), the judges can ignore it.

Doctor Bonham’s Case is not the last example. Godden v Hales in 1686 was a collusive test case, in which a friend of the government prosecuted the Catholic Hales for failing to swear a test oath against Roman Catholics holding (among other offices) military commands. He pleaded that King James II had given him a dispensation under the royal prerogative from the obligation to swear the test oath. Like Coke’s claim in Bonham’s case, the court decides for Hales on the basis of impossibility. Powys, the solicitor general, arguing for the defendant, said: “This Act would entrench upon an inseparable branch of the King’s prerogative, which no Act can take away.” Lord Chief Justice Herbert, giving the judgment of the court, stated “that the King had a power to dispense with any of the laws of Government as he saw necessity for it; that he was sole judge of that necessity; that no Act of Parliament could take away that power; that this was such a law”.13 It is again an example of something that is against common right and reason being repugnant or impossible to be performed.

Now, what happened after Godden v Hales is that King Billy came over with the Dutch fleet and army, and King James was chased out of the country, and the entire senior judiciary were arrested and jailed, except the ones who fled to France along with King James. And the Bill of Rights 1689 ruled against Godden v Hales: “That the pretended power of dispensing with laws, or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal”.

So my point is that the nature of the reasoning that the Supreme Court adopts, in order to get in terms of statutory interpretation to its conclusion, is essentially the same sort of reasoning as the reasoning in Doctor Bonham’s case and in Godden v Hales. It is a usurpation of the legislative power.

Legislators

Towards the end of the judgment, the judges are writing like legislators. Two examples of this. The first is that they cite in Section 19, which is also the (long) paragraph [247], the Equalities and Human Rights Commission recognition of problems in their interpretation of sex as certificated sex - that is to say, actually, when the Conservative government leaned on the EHRC to produce an ambiguous report on the issue, which government and the Tory press interpreted as demanding a ‘biological definition’. The EHRC openly said that dealing with the problems they identified needed new legislation. The use of the EHRC report is, then, the UKSC acting as if it was parliament. But, because it is a court, it does so without hearing all sides of the argument, or the level of opportunity for consideration of details and difficulties that happens in passing acts of parliament.

Secondly, the court says that it is unnecessary to adopt the interpretation of the Court of Session, because without adopting that interpretation trans people are still protected from discrimination in other ways. For example, the Equality Act protects from discrimination people who are thought to be gay but are not: if they are discriminated against because they are believed to be gay, that can nonetheless be discrimination on the grounds of sexuality So, therefore, trans women can be protected from being discriminated against because they are believed to be women, although they are not. The discussion in section 20, paras [248]-[263], is elaborate Again, this is reasoning that would be entirely appropriate for parliamentary discussion, but is not appropriate for what purports to be judicial discussion of the particular use of words in the relationship between the Equality Act and the GRA.

The rational course of action, and the one which displayed loyal subordination of the courts to parliament, would have been for the Court of Session ruling to be upheld. That is to say, trans women are women for some purposes. Certainly post-operative trans women are women for the purposes of being discriminated against as women. They are not women for the purpose of becoming pregnant - but then, there is a much larger class (around 15%) of women who are infertile. And indeed, the court admits that trans women are women for the purpose of being discriminated against as women, in so far as it wants to give them protection from being discriminated against as women on the basis that they are believed to be women, although they are not.

Trans women are women for some purposes, not for others (for example, much less likely to get breast cancer). Trans men are men for some purposes, not for others (for example, much less likely to get prostate cancer). The basic shape of the decision of the Court of Session was thus broadly sound. But if the UKSC had upheld it, it would have been politically embarrassing to the Tory media and the Tory Party.

To prevent this embarrassment, we get an extremely artificial piece of reasoning on the part of the UKSC. The case is thus like Sovmots, though we are too close to it for its character as per incuriam to be as obvious as Sovmots. It also involves UKSC asserting a judicial right to overrule statute by way of “interpretation” - which depends on reasoning of a sort that was condemned in the Bill of Rights 1689.

As communists we fight for political democracy. That includes fighting against the overweening claims of the judicial power. The UKSC decision in For Women Scotland Ltd v Scottish Ministers is exactly an example of why the workers’ movement should oppose undue trust in judges.

Useful idiots

The responses of the left, however, display ‘useful idiots’ of different sorts. One sort is the Morning Star’s Communist Party of Britain and its Young Communist League, who have issued a statement welcoming the UKSC decision.14 “This materialist outcome”, they say, “corroborates our view that ‘sex’ must mean biological sex for the purposes of the Act and any other interpretations would negate its single-sex statutory protections.” What about intersex people? But equally, do you really believe that post-operative trans women ought to be placed in men’s prisons, or that post-operative trans women ought to be forced to use men’s public toilets? Or, indeed, are you for a climate where, as we have in the US, we see butch lesbians getting arrested for using women’s toilets?15 Useful to the Conservative Party, because they are defending what is in essence a judicial action to promote Conservative Party and rightwing media electoral campaigning.

It is, of course, true, as the CPB/YCL statement says, that the present dispute is not the product of “transphobia”. It is worse than that. It is the product of an entirely cynical, dishonest manoeuvre that was originated by political operatives around the US Republican Party in 2017-18, to target trans people on the basis that they are a vulnerable minority who can be targeted as a way of performing a dog-whistle campaign. And this dog-whistle campaign is not, in fact, in favour of feminism. It is actually in favour of separate-spaces conservative (small c) gender politics, and the restriction of women to Kinder, Kirche, Küche. The political operators who launched the campaign to take up ‘gender-critical’ politics beyond its narrow original context are also promoting ‘trad-wives’ and ‘surrendered women’. The pretence that trans people, who are an extremely small minority, are a serious threat to women is merely a cover for promoting real threats to women. For example, the Trump administration, which has been very vigorous in promoting ‘anti-gender’ politics, also pressed for Andrew Tate, although on bail for alleged sexual assaults, to be allowed to visit the United States.

On the other side of this coin, also useful idiots are those on the left who merely tail the dominant politics of trans activists and the slogan, ‘Trans women are women’. As I have just said, not for all purposes - particularly in relation to medical treatment. Because of tailing the single-issue activists, all that Anti-Capitalist Resistance, RS21 and Workers Power do in their responses to the UKSC decision16 is to line up behind the model of accepting the gender binary and demanding state recognition for the transition.

This is a line designed for the Clintonista/Democratic Leadership Council model of the coalition of the minorities with Wall Street through intersectionality. And the result of that, as we saw in 2016: vote Clinton, get Trump; and as we saw last year: vote Harris, get Trump. You actually get the opposite of what you are seeking, and the inability of the tailist left to offer an alternative to that politics is fundamentally a real trap.

This article is based on Mike Macnair’s talk to the April 20 Online Communist Forum which can be viewed at
www.youtube.com/watch?v=NsLOO3S7zkU

  1. www.theguardian.com/world/2024/jan/17/centre-point-occupation-housing-homelessness-1974-anniversary.↩︎

  2. A side aspect of this Tory view can be seen at hansard.parliament.uk/Commons/1976-05-07/debates/204a4b82-b7d9-4949-ad38-b8281409bd95/RequisitioningOfEmptyPropertiesBill.↩︎

  3. Both Forbes J and CA are reported at [1977] QB 411.↩︎

  4. [1979] AC 144.↩︎

  5. Platt v Crouch [2003] EWCA Civ 1110; Kent v Kavanagh [2006] EWCA Civ 162; Wood v Waddington [2015] EWCA Civ 538.↩︎

  6. Court of Session: [2023] CSIH 37. UKSC: [2025] UKSC 16.↩︎

  7. ‘Public boards’ means various quangos.↩︎

  8. The general context of such schemes is discussed by W Benn Michaels The trouble with diversity New York, NY 2007.↩︎

  9. The point is well argued by RA Posner in The problems of jurisprudence Cambridge MA 2003: the meanings of words derive from the contexts of their use. See also W Murphy and R Rawlings, ‘After the ancien regime: the writing of judgments in the House of Lords 1979/1980’ Modern Law Review Vol 44 (1981), pp617-57, and Vol 45 (1982) pp34-61.↩︎

  10. www.theguardian.com/world/2025/apr/18/ruling-on-woman-definition-at-odds-with-uk-equality-acts-aim-says-ex-civil-servant.↩︎

  11. [1956] AC 696, pp728-29.↩︎

  12. (1610) 8 Co Rep 113b, 118a.↩︎

  13. Comb 11, at p23 (Powys); 2 Shower KB 475, at p478 (Herbert).↩︎

  14. morningstaronline.co.uk/article/communist-party-and-young-communist-league-welcome-supreme-court-ruling-definition (April 18).↩︎

  15. www.yahoo.com/news/cis-woman-confronted-police-officers-115522988.html.↩︎

  16. anticapitalistresistance.org/supreme-court-uk-backs-bigots-and-transphobes; revsoc21.uk/2025/04/16/supreme-court-attacks-trans-people-the-fight-for-liberation-goes-on; workerspower.uk/the-rcp-declares-war-on-woke.↩︎