In Bylines Scotland

Excellent summary in the wake of the UK Supreme Court interpretation of the Equality Act:

If you have strong feelings about what a woman is, that’s fine – whatever they are, this judgement isn’t asking you to change them. The court has stressed that it is not its role “to adjudicate on the arguments in the public domain on the meaning of gender or sex.” Instead, its job was to try to figure out what politicians and the lawyers they worked with meant by the term when they drew up the Equality Act (2010).

[…]

Part of the difficulty with this area of law is that when the Equality Act was written, there was very little public awareness of trans people, and that ignorance extended to the people working on the bill. Although cases of trans men getting pregnant already existed, they dismissed these as anomalous and unlikely to become relevant. Although LGBT groups such as the Equality Network advised them of the existence of non-binary people, they felt that this was a tiny minority not worth worrying about. They were similarly quick to ignore concerns raised by intersex people, and they adopted a binary definition of sex. This would inevitably lead to difficulties as public attitudes and behaviours changed, and as gaps between the law and lived reality emerged.

In the judgement released today, the judges defined ‘biological sex’ as “the sex of a person at birth.” This is, in fact, far from a watertight definition, but, helpfully, they also referenced For Women Scotland’s rather clearer “biological sex as recorded on their birth certificate.” The judges, however, are experts in law, not in medicine or biology, and they did not take evidence from anyone in that category. They therefore make statements such as “as a matter of biology, only biological women can become pregnant,” which might seem reasonable to the average person but which overlook the fact that intersex people sometimes find themselves with inaccurate birth certificates.

One of the principles upon which provision of puberty blockers to young trans people was made was Gillick competence – the law that says that young people over the age of 12 can be individually assessed by medical professionals to determine whether or not they’re competent to make medical decisions for themselves. This was hard fought for by feminist campaigners back in the 1980s and it led to the passing of the Age Of Legal Capacity Act in Scotland in 1991. It’s a principle of particular importance when it comes to reproductive healthcare, as it helps young people to access the services they need even if, for instance, they feel unsafe discussing them with their parents. As such, it helps to protect them from abuse and to get used to the idea that they have ownership of their bodies, which is important as they grow up and negotiate boundaries in romantic and social relationships.

By overriding Gillick competence where trans people are concerned, Streeting has created a risk that it will be ignored in other cases too. Perhaps we shouldn’t be surprised. He seems shaky on the concept of medical consent more generally, as demonstrated by his suggestion that obese unemployed people should be given the weight loss drug Ozempic to improve their health and get them back into work. Although his initial comments on this, which provoked a public outcry, were quickly followed by assurances that it would not be compulsory, concern remains about the vulnerability of people who depend on the state for support, especially those who are disabled, who make up a significant part of the obese population. Like most drugs, Ozempic has side effects and is not appropriate for everyone.