At least no-one's overreacting.
Law firms and even the Law Society have been left floundering after the Supreme Court unanimously decided that biological sex determines who is a man and who is a woman.
The judgment in For Women Scotland v The Scottish Ministers, which held that the terms “man”, “woman” and “sex” in the Equality Act 2010 referred to biological sex, sent shockwaves through the heated gender debate. Widely seen to have curtailed the uncertainty around who are legally women and men, the verdict caught many organisations, which for years had assumed otherwise, on the hop – including law firms.
Lewis Silkin was accused of being "grossly misleading" when it produced an analysis of the verdict which advised that men who identified as women were still entitled to use the single sex facilities of their choice in the workplace, and that employers who stopped transwomen from doing so could be sued for discrimination.
“If employers do provide single sex spaces then (based on previous cases) it is likely to be gender reassignment discrimination to bar trans people from using the facilities of their choice. As this does not relate to GRCs [Gender Recognition Certificates], it is unaltered by the Court’s judgment", stated the analysis.
Lewis Silkin's interpretation was pounced on by other lawyers for appearing to gloss over the ramifications of the Supreme Court ruling, which stated that a single sex service would “permit the exclusion of all males including males living in the female gender regardless of GRC status.”
After the firm's take was mocked on social media for attempting to undermine the verdict, its analysis vanished.
“They have got it wrong. I am not surprised they removed it”, said a spokesperson for Legal Feminist, a collective of practising lawyers interested in a feminist analysis of law.
“Our article wasn’t wrong”, a Lewis Silkin spokesperson told RollOnFriday.
He said the firm decided to remove the original anaylsis and publish a revised version as “We wanted to provide more information on the important distinction between the law as it applies to services, and the law as it applies to employers and the workplace”.
Its v2 suggested that now a court needs to define what ‘biological sex’ means before anyone can understand the term: “The Supreme Court has said that the definitions of man, woman and sex in the Equality Act all refer to biological sex (although the judgment does not define what this actually means).”
Despite the widespread impression that the judgment marked a significant development in the gender debate, the firm maintained that its impact was narrow. “The decision is quite a technical analysis of the meaning of words in the Equality Act. It is not a wider decision about the interpretation of other legislation, or whether ‘sex’ means ‘biological sex’ in other contexts. The decision only has limited implications for employment law”, it stated.
Sticking close to its original advice, Lewis Silkin said that because the court did not specify how ‘man’ and ‘woman’ should be defined in the relevant legislation around workplaces (The Workplace (Health, Safety and Welfare) Regulations 1992), “the position for employers remains unsatisfactorily unclear, as it was before the Supreme Court’s judgment”.
As such, the firm advised that nothing had changed for businesses, and “employers can justifiably demand more authoritative guidance before being expected to change their current policy and approach”.
It said the main effect of the judgment was to cause problems because people would discuss the verdict: “The biggest impact on employers may remain the challenge of managing tensions in the workplace. Widespread reporting and debate about the effects of the Supreme Court’s judgment may make clashes within workforces more likely”, its analysis warned.
The firm concluded, “This is likely to be a difficult time for the trans community in particular and employers may wish to reach out to their workforce.”
Legal Feminist told ROF, “The revised briefing shows some very muddled thinking and betrays more than a hint of ideology".
The group said it was "hard to imagine" that the Supreme Court’s definitions of 'man' and 'woman' wouldn’t also apply to The Workplace (Health, Safety and Welfare) Regulations 1992, particularly as it had ruled that sex in the Sex Discrimination Act 1975 also "meant biological sex".
Other lawyers chimed in to disagree with Lewis Silkin's interpretation as well. Akua Reindorf KC asked the firm to "revisit" its guidance. Barrister David Green, head of 12KBW's Employment Team, noted that "if employers comply with their duties on the sole basis of biological sex", the Equality Act provided "a complete answer to any accusation of sex or gender reassignment discrimination".
Yet Lewis Silkin didn’t provide law's most contentious take on the judgment.
That honour went to Brabners, which published a bizarre summary wrongly stating that the case originated with a male athlete who had been discriminated against for identifying as a woman.
“The case in question arose from a challenge brought by a transgender woman who was seeking to compete in elite-level women’s sport”, hallucinated the firm.
It continued, “The claimant — having legally transitioned and obtained a Gender Recognition Certificate (GRC) — was nonetheless barred from participation under the eligibility rules of the relevant sporting body, which were based on biological sex”.
Brabners, are you high or just using ChatGPT?
Brabners' contribution will be news to the feminist campaigners of For Women Scotland, who brought the case in a challenge to the Scottish government’s determination that 'sex' meant ‘certificated sex’ for the purposes of gender representation on public boards.
Brabners did not comment on its whole cloth invention of a wronged trans athlete, but yanked it after ROF got in touch.
Meanwhile, the Law Society's template policy for law firms to use if an employee transitions steadfastly maintains that a person’s “gender identity” determines whether they are a man or a woman, which it defines as "an individual’s innate sense of their own psychosocial place in society".
Citing advice from the Government Equalities Office which was withdrawn in April 2024, it holds that “a trans person should be free to select the facilities appropriate to the gender in which they present" and that "exclusion would be likely to constitute unlawful harassment”.
After ROF asked the Law Society if the template policy, promoted by the SRA, potentially placed firms which adopted it in legal jeopardy following the ruling, it added a note at the top of the document warning, “We are currently reviewing this guidance in light of the recent Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers. Firms should continue to seek their own advice on these issues as applicable to their own circumstances”.
The document, drafted by the Law Society's LGBT+ Committee and transwoman barrister Robin Moira White, also states that a “refusal to accept a trans person's gender identity” constitutes transphobia, which would now appear to catch the justices of the Supreme Court.
Former tax barrister Jolyon Maugham, who runs the Good Law Project, might approve. Having predicted that "FWS will lose. The law really is pretty clear", following the verdict he posted on Bluesky that "There is a very real basis to believe - and I am a KC with an unblemished record - to believe that something very bad, delegitimising, happened in the Supreme Court", and claimed that the judges were "hubristic, reckless or bigoted".
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The real impact of this will be in subsequent months and years when the supposed clarity that the Supreme Court has bought will in practice need to be tested through a lot of tortuous litigation
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Time for a lot of law firms to reflect.
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Law firms have been an embarrassment on this issue for years. Falling over themselves to get Stonewall points and repeat Stonewall law rather than the actual law their clients pay them for. As for reaching out with consoling words for these bullying men in women's toilets, none had any such sympathy for the women who've been disciplined for speaking up and the women who dared not speak up but had to give up their single sex spaces. A glance at your Related News images tells the story. Let's hope they all get a grip, read the actual law, reverse ferret out of their ridiculous proclamations and start applying the Equality Act to their own firms.
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Legal Feminist told ROF: “The revised briefing... betrays more than a hint of ideology".
Get the pitchforks out! Someone's suggesting it might not always be appropriate to inform transwomen that they're actually beardy blokes and the law says we're obliged to do that now.
The post-judgment rampage by all the transphobes is horrific. I get that legal vindication for Forstater et al makes sense, and that biology is fact, etc, but let's be honest - this ruling just encourages transphobia.
We've gone from 'transwomen are women' to 'transwomen are fetishist predatory hairy fellas in a skirt and it's my legal duty to say that'. Awful.
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The Court was quite clear in its decision re. the meaning of biological sex. It was obscurantism of the sort that LS' summary indulges that caused the problem of 'what is a woman?' in the first place.
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The Lewis Silkin "analysis" of the verdict is not driven by ideology. They are just trying to drum up work by claiming they have found a way to sidestep the obvious consequences of the Supreme Court's ruling. Someone will take the bait and waste thousands of pounds by instructing Lewis Silkin to bring a hopeless claim.
Typical "rainmaker" litigator behaviour. Reminds me of the chap who told the world he had a billion pound claim against Mastercard and then settled it for pennies (after taking tens of millions in fees for himself).
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If you need a court to determine what is male and female how can you be qualified to provide legal advice?
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Lewis Silkin need to read Corbett v Corbett, which settled the definition of man and women 51 years ago. See Michael Foran's substack article.
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“The Supreme Court has said that the definitions of man, woman and sex in the Equality Act all refer to biological sex (although the judgment does not define what this actually means).”
Paragraph 7?
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Well done RoF for helping have taken down inaccurate articles. The 2010 Act has always been as clear as day - discrimination on grounds of sex is one category, gender is another, sexual orientation is another etc. It was never going to be right on any basis to say one of the other categories than sex also fell within sex. It was a ludicrous assumption. Fact, truth and science have prevailed thanks to the Supreme Court. That does not mean we will all go off and be nasty to Bert who is choosing to wear a skirt to work as most people on all sides of the debate are kind to others.
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Where I am this morning is where I was a week ago and indeed for my whole life. A little curious about those for whom the Supreme Court was a moment of enlightenment. (Please reply if you are in this category.) The kind of people who publish their "pronouns" on LinkedIn.
Men are men as defined by their bits and bobs. Women are women as defined by their bits and bobs. Some people have an issue with their sex and decide to adopt the other gender (or some other gender identity). That's broadly fine and generally we should all be polite about it - though we shouldn't be too reverential - after all there is quite a bit of humour wrapped around this.
The Supreme Court found that people's gender identities does not affect their biological sex and organisations providing safe spaces defined by biological sex / sports bodies offering sport participation defined by biological sex and so on should make decisions based on biological sex.
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This is a brilliant piece. Brabners clearly just lifted something out of Chat GPT. And I reckon the fox that Maugham beat to death whilst wearing a silk kimono might have something to say about his ‘unblemished reputation’.
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There is no law in this country making it illegal to use the toilet of your choice. The SC decision has no bearing on this. For those who find the judgment of great clarity, perhaps they could contemplate how this affects groups including butch lesbians (who are already facing harassment using the toilet associated with their biological gender), trans men (who are presumably supposed to use the women's bathroom despite having the outward appearance of a man), trans women (who are presumably supposed to use the men's bathroom despite having the outward appearance of a women) and so on.
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"We've gone from 'transwomen are women' to 'transwomen are fetishist predatory hairy fellas in a skirt and it's my legal duty to say that'"
Oh you poor thing, you look like you're suffering from chronic overexposure to Twitter. It's not healthy for you. Come in and have a cup of tea by the fire.
Please don't worry, out there in the real world we've actually gone from "transwomen are women, and you have to play along with that or else risk being sacked" to "actually, I don't think that men can turn into women, and it's ok for me to say that people with dicks shouldn't be in the women's changing rooms".
Nobody is suggesting that we should round up trans folk and burn them on the village green. Only that it's ok to politely decline to accept the idea that a man dressed as a woman is actually a woman.
We managed several centuries in the UK saying that without mass exterminations of trans folk taking place. I'm sure we will manage again.
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It's really quite simple. If you have a 🐔 you use the gents.
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"We've gone from 'transwomen are women' to 'transwomen are fetishist predatory hairy fellas in a skirt and it's my legal duty to say that'. Awful."
Most women will happily settle for an acceptance that trans women are men, because that is what they are.
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The GRA is a piece of garbage. Deeming provisions should be clearly defined in their scope and (generally) of limited application; but this is what you get when Parliament is full of activists instead of statesmen.
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"It's ok to politely decline to accept the idea that a man dressed as a woman is actually a woman" - not seeing a lot of politeness this past week.
"Most women will happily settle for an acceptance that trans women are men, because that is what they are" - most people voted for Brexit.
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I have a willy. Can I still call myself a woman?
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Despite saying the exact opposite for several years, and declaring that it was a hate crime to say that trans-women weren't actually women, I actually Welcome The Clarity of the judgement.
So there's no need to think that I'm a spineless fool for spending years playing along with the absurd notion that men could metamorphosise into women because that's the way I thought the prevailing wind was blowing amongst shouty progressive 'thought leaders'.
No no, I Welcome The Clarity. This isn't a complete egg in the face for me.
My dignity is intact.
I Welcome The Clarity.
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"For those who find the judgment of great clarity, perhaps they could contemplate how this affects groups including butch lesbians (who are already facing harassment using the toilet associated with their biological gender)"
A big fat LOL for the muppets trying to work up an argument that the judgement somehow generates risk and uncertainty and harm for odd-looking people, and oh wasn't it better when men could just wander into the ladies at will.
Compare and contrast the amount of worrying they do about hypothetical awkward conversations outside of toilets versus the amount of wailing they do about people waving signs explicitly calling for the death of their political opponents (see images in article above).
Apparently that kind of explicit call for violence is just fine and dandy*.
But oh gosh, wouldn't it be awful if someone somewhere got into an argument near a lavatory.
*One suspects they'd lose their taste for that kind of confrontational activism and 'er it's satire and why do you hate free speech?' nonsense were we to organise the EDL to march through Central London calling for trans people to be burned as witches and/or hung from the gallows. But that's just idle speculation.
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""It's ok to politely decline to accept the idea that a man dressed as a woman is actually a woman" - not seeing a lot of politeness this past week."
Hmmm, It's a real mystery to me why women might not feel the need to be particularly polite to the typical trans-activist.
Let's all scroll up to the top of this page, have a good long look at the images of trans-activists set out therein, and the messaging typically bandied about at trans-enthusiast rallies, and then ruminate on why biological women might not feel any particular need for civility when talking back to them. Let's give our chins a good stroke, really ponder it and try to figure out the root of the problem. No rush.
No I'm stumped.
It's a total enigma isn't it? Why oh why do women not feel the need to address those men in more measured terms?
What could possibly be causing them to react with such distaste? Doubtless scientists and philosophers will grapple with the quandary for centuries....
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""Most women will happily settle for an acceptance that trans women are men, because that is what they are" - most people voted for Brexit."
Hang on, that's not right is it?
I thought that it was an article of faith amongst the Remainist faithful that actually only 28% of the country voted for Brexit and that the Remain campaign were entitled to count all of the abstainers as having not voted for change and so therefore change was democratically illegitimate.
They were quite clear on that idea for many years.
Has something changed? Do they now concede that a majority of Britons wanted to leave the EU?
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I knew this comments section would be horrible, but I didn't expect it to be quite this horrible. What a weird, spiteful, self-absorbed bunch lawyers seem to be.
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What's interesting about these moments in the trans 'debate' is that no matter how clearly and unambiguously an event concludes in favour of the biological-reality side of the issue, the trans-enthusiast side will try to paint it as a victory.
Lewis Silkin a prime example. The SC judgement is clear, unambiguous, and contains specific reasoning that explains why its conclusions will apply equally well to statutes other than the Equalities Act. But the ideological capture is so strong that they can't stop themselves from pretending it's unclear, ambiguous, and leaves everything to play for in subsequent cases.
It was a similar story with the Cass Report. In which the conclusion was very clear that patient safety had been critically undermined by suspect ideology and that puberty blockers should be taken off of the table for children until rigorous clinical trials had taken place to test whether they were safe and delivered reliable positive clinical outcomes. What was the TWAW reaction? To try and read the report as saying that it was somehow in favour of more blockers being administered and hadn't identified any harm to their use so therefore they were safe.
It's weird, if an event doesn't go their way they just ignore it and reimagine history as if it had. Little wonder that they struggle to convince the centre ground.
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Does this mean we can have Father Ted, The Musical?
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"It's weird, if an event doesn't go their way they just ignore it and reimagine history as if it had."
Pretty much sums up the whole ideology gender identity, no? It's entirely based on lying to oneself about reality and expecting people to play along.
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In the dim corridors of the Legal Citadel, where parchment whispers secrets and quills bleed truths, a peculiar edict emerged: the Supreme Court, in its infinite wisdom, decreed that the essence of one's being—be it man, woman, or the enigmatic non-binary—must be etched into the annals of justice with unwavering clarity.
Partners, those stewards of precedent, found themselves ensnared in a web of ambiguity, their once-certain steps faltering on the rungs of gender identification.
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Can't wait to watch the medical profession tackling this same learning curve. In law it's just money, jobs and sexual assaults. In medicine it's the bodies and minds of vulnerable patients.
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"The real impact of this will be in subsequent months and years when the supposed clarity that the Supreme Court has bought will in practice need to be tested through a lot of tortuous litigation "
Oh yeah, real tortuous, just imagine...
Rumpty Dumpty KC: So m'lud, the question arises that when the Road Signage Act 1934 talks about 'Men' and 'Women' should those words be taken to mean the same thing as you felt they did in the Equalities Act, or ought we instead adopt the unusual usage of those words that you explicitly said in your judgement only seemed to be adopted in the Gender Recognition Act, and that the only reason to adopt that novel usage if then there was because the whole GRC would become incoherent if one didn't? My humble submission is that the later is the logical conclusion.
The Supreme Court: Total bobbins. Obviously all of the reasons that we gave - at length - for not exporting the funky definitions that seemed to be going on in the GRC still stand and all apply equally well to every other statute in the land not just the Equalities Act. Mad case dismissed. Let's get out of here and we can be on the golf course by three. All rise!
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Anonymous 25 April 25 09:57 - and the queue is usually shorter.
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Proper scandal. Due this judgement I am now limited to leaving only the toilet seats in the gents' lightly pissed. And most of them already are! This is a form of art, and I now need to paint on someone else's painting.
I will 100% raise this before the ECHR.
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The idea that men with autogynephilia could dress up as a woman and we had to accept them in our changing rooms, toilets, sports, hospital wards, prisons, and even have them count as women for the purposes of board representation is bonkers.
The Equality Act has separate protections for both sex and gender. That was enough and it was ridiculous that the Scottish government tried to force us to merge the two (though perhaps not unsurprising for Scotland).
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Don’t argue against single sex loos - they could save your life!
Single sex public loos are the safest for everyone when they are critically medically vulnerable. They are the only design that often has floor to door gaps.
Why do we have toilet door gaps? For health and safety
Why don’t mixed sex toilets have door gaps? For privacy
What are we losing? Health and Safety.
Heart attacks and strokes are both averaging one every 5 mins in this country. Toilets are the place you go when you feel ill. Medically, the strain of eliminating puts extra pressure on the body and are reasons are why bodies are found inside cubicles.
I believe it’s disability discrimination to have no designs suitable for people more at risk of collapse where they are reliant on a prompt rescue eg. people with invisible disabilities such as diabetes, epilepsy and heart conditions. It’s a very reasonable adjustment in the workplace to have these designs. It would be great to test this legally.
Ironically the Department of Education don’t mention ‘safety’ only ‘privacy’ in the toilet section for their 2023 designs for secondary schools (5mm gap now). They told me they do not hold risk assessments or equality impact statements for these designs. Instead they referred me to Health and Safety legislation from 1974 that schools should comply with too. There are thousands of children with invisible disabilities in UK schools - just taking epilepsy into account that’s roughly 9 children in an average secondary school.
The floor-to-door gaps save people’s lives. Everyone is safer in these designs. And by design that means they have to be single sex.
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Like many other issues, the legal profession got this one entirely wrong. It’s another example of putting personal politics before law and common sense. Whether it’s protesters vandalising offices and telling us that’s not criminal (if aimed at Jews, banks and oil companies), attempting to prescribe different penalties based on race (Sentencing Council) and trying to tell us men were women and vice versa, the profession corrupts proper legal analysis for political purposes. There is no difference between the Trumpsters stacking the US Supreme Court and so-called barristers like Maugham “KC” pretending to be independently minded lawyers.
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Anonymous 8.50am
"We've gone from 'transwomen are women' to 'transwomen are fetishist predatory hairy fellas in a skirt and it's my legal duty to say that'. Awful."
Nope. We've gone from "transwomen are women" to "transwomen are men". They are welcome to be womanly in any way they choose, may happily live their lives as they want, but not in women's facilities or spaces.
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the Brabners thing is just lazy AI, but this from Lewis Silkin is appalling - revised version
"The only legal requirement on employers in relation to single-sex facilities is in workplace health and safety legislation from 1992 (separate from the Equality Act). ... There is no definition of “men” and “women” in these rules and the Supreme Court’s judgment expressly stated it was not defining the meaning of these words other than in the Equality Act."
Obviously the 1992 legislation CLEARLY means any old perve can get his todger out in the ladies.
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If you’re born a man or woman, you can’t claim you identify as an attack helicopter, no matter how much surgery you have on yourself.
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Not a lot of kindness in this debate. Some of the comments here are surprisingly coarse from people who should take the trouble to be better informed.
Reducing trans issues to which bathroom people should use is not insightful. There are 8bn on the planet - some of them feel and see things differently. That's okay in my book.
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It is unsurprising but sad to see the amount of hatred that so many people in Britain have for transgender people.
One does not have to be a rabid activist to consider that 99.9% of trans people are simply trying to get on with their lives in the best way they can. All they want is to try to live as their gender.
Yes this causes some difficulties with conflicting minority interests, as does all behaviour by any group on the planet. That is why we have laws and politics, to decide as a society how to resolve those difficult grey areas between freedom to do as we wish and freedom for other people not to be negatively impacted by that.
The toxicity of this “debate” is astounding, but probably the most disturbing element of it is how easy it has been for otherwise normal people to be whipped up into a foaming, vitriolic hatred of a pretty minuscule minority group who already face a lot of hardships and have historically often been singled out for sterilisation, violence and mass murder.
There is no nuance and compassion to be seen. Of course this is the case for the far right media who instigated this witch hunt but, again, what is astonishing is how easily so many otherwise normal people have been whipped up into quite extreme delight and gloating at the simple sadness of others.
The only thing I can suggest, as with all hate comments, is that everyone in this thread go out and have a few chats with some of the people they hate. Engaging with regular transgender people doesn’t require you to suddenly support them in the olympics, but it might just restore a bit of basic compassion and humanity. Perhaps a very big ask for modern British people.
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Anonymous 25 April 25 11:57
"We've gone from "transwomen are women" to "transwomen are men". They are welcome to be womanly in any way they choose, may happily live their lives as they want, but not in women's facilities or spaces."
Anonymous 25 April 25 10:18
"Hmmm, It's a real mystery to me why women might not feel the need to be particularly polite to the typical trans-activist."
Put yourself in the position of a transwoman who has lived as a woman for decades, who works with an employer who knows and is respectful about their identity, is surrounded by colleagues of the same views, and not supportive of aggressive activists shouting about sh*tting on JK Rowling's head.
Do you have any empathy for those people? Or are you the kind of person who says all Muslims are terrorists?
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Anonymous 25 April 25 10:22
<Brexit blathering>
Snore. I was just noting that your assertion that what 'most' people think is not an argument-winner. Most people used to think that homosexuality was a crime.
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"It is unsurprising but sad to see the amount of hatred that so many people in Britain have for transgender people."
Misrepresenting disagreement as "hatred" is straight up TRA tactics and no one is falling for it anymore. Soz.
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We haven't had a ladder house comment for a while now. Sad.
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There's been little progress on this issue since the April Ashley case a few decades ago.
It's a proxy debate for fear and hatred of minorities on the sexual spectrum and, in some cases, of men.
The legal profession, instead of taking a lead on this, seems to be part of the problem.
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Misrepresenting disagreement as "hatred" is straight up TRA tactics and no one is falling for it anymore. Soz.
Respectful and empathetic disagreement is of course completely fine. I can’t see a single example of it in these comments however.
Plenty of insinuations that trans people are all mentally ill sickos and that women need protection from them.
Plenty of extremely disrespectful disagreement like yours, and lots of labelling anyone who has the remotest empathy for trans people a rabid “TRA”.
Haven’t seen any comments along the lines of “this ruling must be very difficult for trans women to work through, but on the whole I think that cisgender women must retain the freedom to have trans-exclusionary spaces”. I wouldn’t even necessarily disagree with this view.
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Anonymous 25 April 25 12:44
Thankyou! A normal person. Agree with every single word of this.
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Congratulations and many thanks to For Women Scotland for seeing this through to the end. Thanks to you, the Supreme Court has now confirmed what all sane and reasonable people knew all along; that female people exist in law and have sex based rights.
Everyone working in DEI and in the legal profession now needs to get up to speed on what this means. Stop misrepresenting the law, and stop taking advice from biased and unqualified ideologues. Cut ties with Stonewall who are no longer fit for purpose, and for god's sake stop getting Robin Moira White to write your policy documents for you.
Love to all RoFers,
Anna x
PS - Hi Chill, if you're lurking. Your boys took a hell of a beating. ;-)
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@Anonymous 25 April 25 12:39
Just check some of the other news items...
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The toxicity of this debate is depressing, especially how the default answer on the GC side seems to be “look at the angry trans activists which proves ALL trans women are aggressive and abusive men hellbent on hurting women so none of them deserve rights”
By that logic - as someone has already pointed out - the existence of radical Islamic terrorists mandates that we strip rights away from Muslims and can police them more harshly as a class of people, to enaure our safety