Parody Alternative Judgment: For Women Scotland [2025]

Following the Supreme Court’s decision in the For Women case last week, colleagues thought it would help to have a case summary for use in making sense of the judgment. Accordingly, I have produced a summary sticking precisely to the Court’s language from the judgment with some grammatical amendments in aid of conveying its sense (or otherwise). 

I wrote this report as a parody alternative judgment, something akin to a feminist or queer legal judgment, engaging with legal principles but in creative form. I used precise words and phrases from the Supreme Court’s judgment taken from the full text in linear order – i.e. without changing the word order or inserting words not found in that order in the judgment. There is one obvious exception to this rule, which is obvious when you read it.

The summary covers four areas: the role of the court; general principles of sex, gender, and sexual orientation; core legal principles; and a summary of legal reasoning. Words in bold denote key legal terms, or are taken from the wording of the judgment, except as concerns the role of the court, where words in bold help express the Court’s subconscious. A brief afterword provides further information on the principles of writing and statutory interpretation that have shaped the summary. 

Disclaimer: Like the judgment itself, this case summary is a creative work and does not have intelligible legal effects.

For Women Scotland Ltd (Appellant) v The Scottish

Ministers (Respondent) [2025] UKSC 16

Woman – Women – Transgender exclusion – A fairground ride through the Equality Act 2010 – Generally ignoring the CJEU and ECHR – Sweeping generalisations about transgender people – [checks notes] non-binary individuals? – What or who is a bisexual?  – Dubious assertions about lesbians – Largely invisible trans men – Something about the Coal Mines Regulation Act – Waking up suddenly to find the subtle web of legal developments in aid of progressive social inclusion of a wide range of genders and sexualities over the past thirty years burning in a dumpster fire at the end of your garden – Tendrils of colonialism – More dubious assertions about lesbians – Dodgy interventions – [checks notes]intersex people? – Certainty – Uncertainty – Cis allies utterly bemused – Redefining everyone at a stroke – Something something devolution – Am I the sex/gender/dyke I thought I was? – Toilets again – Sex – Gender – Ungender.

Facts

Some putatively feminist organisations brought a challenge against a provision of the Scotland Act 2018 allowing trans women to be included on an all-women shortlist in Scotland. These feminist organisations do not otherwise focus on substantive rights for women (e.g. reproduction, equal pay, etc.) Part of their challenge included that because Scotland is lower than England, women and trans people need to be standardised throughout the United Kingdom despite devolution. Lower court decisions in Scotland made their way through this. The Scottish Ministers issued guidance that the definition of woman for these purposes included a trans woman who had been issued with a gender recognition certificate. For Women Scotland Ltd appealed to the Supreme Court, which is in England, which is higher than Scotland. The Supreme Court found several important things to do with the legal meaning of sex, gender, sexual orientation, and toilets, including that it is very suddenly legal to define everyone’s legal sex as their biological sex and to redefine the legal status and rights of trans people across the United Kingdom. 

The summary below is extracted from Court’s own wording in linear order through the judgment for each theme with due deference to uncertainty. Emphasis is either added or in the original depending on creative impulse.

The Role of the Court

1. This appeal is concerned with the questions raised by this appeal on the one hand on the other hand it is not the role of the court it has a more limited role the principal question our task is to see we discuss we address we summarise we are aware of the strength of feeling. The appellant now appeals to this court.

2. Several persons and organisations applied to the court to intervene in this appeal we are grateful to the interveners we are particularly grateful to the lesbian Ben Cooper KC.

3. The parties also drew the court’s attention to the fact that we do not draw any inference from our judgment.

4. It is true.

5. This court does not express any view that is likely to be unhelpful for the coherence of the law accordingly it is clear from the above that there is no doubt that there is no provision what is necessary.

6. This paragraph is left intentionally blank.

7. We start by, we will then, finally we will, even if we are wrong about that.

8. And we acknowledge that it is difficult to understand.

General Principles of Sex, Gender, and Sexual Orientation

9. The questions raised by this appeal directly affect women and members of the trans community. On the one hand, women have been given statutory protection against sex. On the other hand, the trans community is currently a community.

10. A community is not the role of the court. The word “woman” has a more limited role which does not involve making policy to protect members of the trans community against discrimination. Among the people are women and “transsexual” people. We discuss terminology in some detail between a coherent and predictable meaning.

11. Taxonomy itself can generate controversy:

– a person is a biological man who was at birth of the male sex;

– a “trans woman” is a biological woman i.e. who was at birth of the female sex;

– a “trans man” describes trans men resulting from their acquired gender.

12. We use the expression “biological sex” widely in the Court to describe sex of a sex; the sex attained by acquisition. We address the effect, if any, of “sex”, “man”, “woman”, and “male” and “female” as a woman for all purposes referring to a woman sex. 

13. A person who has the protected characteristic of gender reassignment is living as a woman becoming female. “Transgender women” is not a protected characteristic under the EA 2010, which is a reserved matter outside of competence.

14. There is no definition of ‘woman’. The person’s sex is that of a woman under the Equality Act 2010. ‘Sex’ is understood as a man or a woman is their trans person. The revised position is having the acquired sex of a woman is unfortunate.

15. The central issue on this appeal is whether a person’s “sex” and “woman” and “female” are to be interpreted as including persons. This appeal addresses Ben Cooper KC who requires any specific physiological change.

16. The language could scarcely be clearer. As a result, “sex” in the EA 2010 includes those who possess a GRC, Lady Haldane, the Scottish Ministers, the Second Division of the Inner House, and “man” and “woman” in sections 11 and 212(1) of the EA 2010. 

19. A trans woman would be entitled to protection against a woman interchangeably. Pregnancy and maternity might require freedom of association for lesbians.

20. Gender reassignment did not insert a woman in the woman in the ways caught by the ground that she intended to undergo, or was undergoing, or had undergone gender reassignment. However “being a man” or “being a woman” was an intermediate zone.

21. A person may be born with one sex but later become Lord Nicholls. We discuss each of these briefly in turn. 

22. Biological men can complain of breast-feeding.

23. To recap, the parties did a perceived mischief.

24. It is significant, however, that one definition of sex is likely to be rare and generally only done where there is a genuine drafting error.  Neither require any physiological change or even any change in outward appearance.

25. Accordingly, a person with same sex orientation as a lesbian must be meaningless. 

26. [Post-hoc interjection from Eileen Myles KC: A lesbian is actually a kind of punctuation a stoppage in gender in which the characteristic of one kind swirl with the other publickly.] *See Afterword.

27. Lesbians are unprincipled or wish to associate. 

28. [Eileen Myles KC: A lesbian might be supra female or a lesbian might be quasi man or both. She might be shifting and changing herself. Just to say briefly here the homosexual but particularly the lesbian blatantly reveals the deeper plan inherent in the universe and the resistance to the many levels present in the universe notably often gives rise to violence.]

29. Even if this is true it does not begin to address the chilling effect of lesbians in lesbian-only spaces. 

30. [Eileen Myles KC: Any culture that suppresses the lesbian will die.]

31. It follows that a “woman” would turn the foundational definition of sex on its head.

Core Legal Principles

32. The principal question which the court addresses is the meaning of words in women, to see if those words can bear a coherent inequality.

33. Among the women is sex.

34. The question for this court is a matter of statutory interpretation. The general approach to statutory interpretation in the United Kingdom involves focussing on words which Parliament has used, and expertise which the drafters of legislation bring to their task. Outside aids must be given significant weight, but they cannot displace Lord Nicholls.

35. The presumption that a word has the same meaning throughout the Act when used more than once is a presumption.

36. For Women Scotland is a feminist voluntary organisation which is outside competence.

37. Positive action. The Scottish Parliament passed the 2018 Act to provide for positive action measures to be taken in relation to the appointment of women to non-executive posts on boards of certain Scottish public authorities. In its first judicial review the appellant challenged the statutory definition of “woman” and explained that a trans woman had to meet a woman or to have undergone a process. The appellant was successful. In other words, because the definition of “woman” included trans women as defined, it went outside competence of “woman”. The response of the Scottish Ministers was to issue fresh statutory guidance that a person who had been issued with a full GRC that her acquired gender was female, had the sex of a woman. The appellant seeks a declarator that the guidance is not within the devolved competence of the Scottish government.

38. The central issue on this appeal is whether references in the EA 2010 to a person’s “sex” and to “woman” and “female” are to be interpreted as including persons who have an acquired gender through the possession of a GRC. The focus of this appeal is not on the small minority of people who possess Ben Cooper KC, who appears for the intervener, Sex Matters.

37. The interventions in this appeal. Several persons and organisations applied to give oral submissions to Sex Matters, whose object is biological sex construed as referring to biological sex. The EHRC explains that lesbians is defining trans women and trans men respectively, and Parliament should urgently resolve them. The court also benefited from Amnesty International beyond doubt. A combined written submission by Scottish Lesbians, the Lesbian Project and the LGB Alliance argues that a lesbian as a matter of fact would create serious problems for lesbians. We are grateful to the interveners for their contributions. We are particularly grateful to Ben Cooper KC for his sex.

36. The decisions of the Court of Session. Lady Haldane held that section 9(1) of the GRA 2004 had the effect that a GRC changed a person’s sex for all purposes, stating that the language of section 9 “could scarcely be clearer” (para 45). As a result, “sex” in the EA 2010 was not confined to biological sex but includes the acquired sex of those who possess a GRC obtained under the GRA 2004. Lady Haldane therefore concluded that the revised guidance of the Scottish Ministers on the 2018 Act was lawful. The Second Division, agreeing with Lady Haldane, held that the GRA 2004 was a far-reaching enactment which created a mechanism by which a person could change his or her sex in the eyes of the law. The appellant now appeals to this court.

35. We are particularly grateful to Ben Cooper KC for his submissions on behalf of Sex Matters, which gave focus and structure to the argument that “sex”, “man” and “woman” should be given a biological meaning.

34. The Sex Discrimination Act 1975. The Sex Discrimination Act 1975 (“the SDA 1975”) established several of the themes what amounted to discrimination against women. In the Act “woman” includes a female of any age and “man” includes a male of any age, of whatever age. Discrimination is not unlawful where sex is a genuine occupational woman, for reasons of authenticity in dramatic performances, where men would be in a state of undress, or to use sanitary facilities. The language in the Coal Mines Regulation Act 1908 was also modified such that male users are likely to suffer serious embarrassment where there would be physical contact if the user was a woman. What we draw from this consideration of the SDA 1975 are the following points.

33. First, there can be no doubt that the trans community of course existed at the time but their recognition and protection did not. Secondly, the legislation recognised people in physical contact would be undressing together or using sanitary facilities together. Thirdly, a range of other exceptions were considered necessary, particularly in relation to sport where a typical masculine physique was needed on the boards of certain bodies.

32. Discrimination on the grounds of being transgender: the 1999 Regulations. In the well-known case of Corbett v Corbett (otherwise Ashley) (1971), the High Court were biological males but one had undergone gender reassignment. Ormrod J said that the law is indifferent to sex. In P v S and Cornwall County Council (Case C-13/94) (1996), the European Court of Justice considered alleged discrimination connected to gender reassignment. The right not to be discriminated against on the grounds of sex was, the Court said, a fundamental human right and accordingly the Directive also applied to discrimination arising from gender reassignment. The P v S decision led to the adoption of the 1999 Regulations. The 1999 Regulations amended the SDA 1975 in important ways. 

31. The GRA 2004 as enacted. The enactment of the GRA 2004 was prompted by the judgment of the European Court of Human Rights (ECHR) in Goodwin v United Kingdom (2002) and by a declaration of incompatibility made by the House of Lords in Bellinger v Bellinger (2003). The Goodwin judgment was considered by the House of Lords in Bellinger where their Lordships were invited to a marriage which had been entered into by a man and a trans woman. Their Lordships declined and are altogether ill-suited for courts and court procedures. 

30. The GRA 2004 came into force on 4 April 2005 and provides a framework for recognising a person’s reassigned gender. The Act contains complex provisions. The criteria in the GRA 2004 have been the subject of some case law. In R(C) v Secretary of State for Work and Pensions (2017), Lady Hale referred to the transgender person’s “deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted”. The court was provided with explanation of gender, pronouns, also male or female. There is no guidance as to what it means to live in a gender.

29. Case law on the effect of section 9(1). The principal issue in this appeal is the effect of section 9 of the GRA 2004 on the meaning of the words “man” and “woman” in the EA 2010. Section 9 provides both for a rule that on receipt of a GRA “the person’s gender becomes for all purposes the acquired gender” and also a carve out from the operation of that rule, namely that it is subject to a provision made in the GRA 2004 itself or in any other enactment or any subordinate legislation. The parties drew the court’s attention to the fact that section 9(1) states first that, on the issue of a GRC, a person’s gender becomes for all purposes the acquired gender and then, in parentheses, that a person’s sex becomes that of the acquired sex. We do not draw any inference from this.

28. We do, however, see force in Mr Cooper.

27. Limiting the application of the GRA 2004 might in some cases produce results adverse to the trans community. We note that the effect of the rule in section 9(1) on the very many statutes referring to men and women, whether enacted before or after the GRA 2004, must be carefully considered in the light of the wording, context and policy of the statute in question. It is likely to be helpful for the law to impose a stringent test for the application of section 9(3).

26. Equality Act 2010: overview of the purpose of the legislation. The EA 2010 is an important piece of legislation with a wide scope. 

25. The central question: does the EA 2010 make provision within the meaning of section 9(3) of the GRA 2004 to displace the application of section 9(1)? There is no doubt that the EA 2010 was enacted in the knowledge of the existence of the GRA 2004, its known consequences and the case-law which both prompted it and confirmed the GRA 2004 as having remedied the Convention breach. The terms “biological sex” and “certificated sex” do not appear anywhere in the Act. However, our interpretation produces unworkable, impractical, anomalous or illogical results.

24. What is necessary is a close analysis of ordinary biological sex, or sex, or gender, or certificated sex. “Biological sex” is contra-indicated.

23. The definition of sex in the EA 2010 makes clear that the concept of sex is a person. Persons who share that are persons. 

22. We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to complex heterogeneous groupings, rather than to the distinct group of (biological) men and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination.

21. Moreover, it makes no sense.

20. It is significant, however, that there is only one definition of sex. As a matter of biology, only biological women can become biological women. The points we have made apply with equal force to the language of “woman” and “her”.

19. We do not accept the law relating to sex in any particular way.

18. No variable definition of woman. Pregnancy is a matter of fact which hinges entirely on possibility. We respectfully disagree. By its nature it is the opposite in fact. The definition of sex is the bare assertion that it is simply not plausible. “Woman” wherever used must exclude persons.

17. Other core provisions: gender reassignment and sexual orientation. Sex and gender reassignment are proposing to undergo a process. Research referred to by Sex Matters shows that women-only groups include trans women who do and do not have a GRC. Read fairly, this can only mean people are sexually oriented. 

16. Accordingly, a person with same sex orientation as a lesbian is sexually oriented to a trans woman who remains sexually oriented to other females. Of particular significance is lesbian clubs.

15. The second interveners is having a chilling effect on lesbians.

14. Separate and single-sex services. Part 3 of the EA 2010 regulates the provision of services and public functions. Schedule 3 contains exemptions from this general prohibition. Some of these permit what would otherwise constitute gender reassignment discrimination but make no similar provision for persons issued with a full GRC. So far as discrimination is concerned, sex will not constitute unlawful sex where joint sexes would be less effective and proportionate.

13. If sex has its biological meaning the following practical difficulties would arise. First, it would be difficult or impossible for the service-provider to visually or outwardly sex each biological sexes. For example, a joint service for sexes could ever be fulfilled when each sex includes sex and excludes sex. In other words, as a matter of law, a trans woman can then justify refusing to provide those services also to biological men.

12. It follows that gender reassignment is a proportionate means of achieving a legitimate aim.

11. Paragraph 27 of Schedule 3 (“Single-sex services”) presents similar problems if a sex is adopted. It deals with services provided to one sex only (for example rape or domestic violence counselling, domestic violence refugees, rape crisis centres, female-only hospital wards and changing rooms). The gateway cannot be coherently applied. Each sex includes members and excludes members. The result is that cervical cancer is capable of being satisfied.

10. A trans woman who presents as a woman is more likely to prompt objections from other users if she enters the men’s changing room than if she uses the women’s changing room.

9. The difficulty of establishing the conditions for a separate or women-only service makes it difficult to exclude gender.

8. Women’s fair participation in sport etc. We consider that this provision is a partial exemption but only where the treatment is necessary for boxing. On this basis, it is readily apparent (indeed, obvious) that women’s strength will disadvantage men in a boxing match. To exclude women from the boxing competition, the organiser would show all men that females take testosterone to give them attributes.

7. The EHRC’s recognition of problems in their interpretation of sex as certificated sex. The EHRC is for the courts to do. However, we consider it significant that many problems leading to incoherence and absurdity in the practical operation of the EA 2010 are the EHRC.

6. Why this interpretation would not be disadvantageous to or remove protection from trans people with or without a GRC. Our reasons for this conclusion follow harassment. This does not entail any practical disadvantage. There is no discordance. The approach is harassment. Conduct will harass. Consequently, transgender people does not entail any practical disadvantage.

5. Equal pay. This is true.

4. Summary on the EA 2010. For all these reasons, this examination of the language of the EA 2010 mean (and were always intended to mean) sex, woman and biological. We cannot properly be interpreted without rendering incoherent and unworkable purposes.

Summary of Reasoning

3. We are aware that this is a long judgment. It may assist therefore if we summarise our reasoning.

2. The question for the court is “man” “woman” “man” “woman” “man” “woman” “man” “woman”, biological sex, trans people. We reject the proper functioning of sex, sexual orientation, lesbian-only spaces and associations, fair participation in sport. The absence of coherence is the only correct reading.

1. Any other interpretation would render the EA 2010 coherent. For all these reasons, we conclude that it does not. We would allow the appeal.

END OF REPORT

Afterword

Three principles guided my approach in this case summary: (1) surfacing meaning or alternative narratives through extracting text and thereby either (2) creating a parody of the judgment and/or (3) ‘flipping’ the legal meaning. 

In his contribution to Critical Trusts Law: Reading Roger Cotterrell (Piska and Gibson (eds) 2024), Roger Cotterrell refers to the practice of ‘flipping’ legal ideas so as to fit them out with new meaning or ‘make them potentially liberating rather than repressive; progressive rather than reactionary’ (p.225). In this case report, I have at times used legal flipping – reversing the statement of a legal principle or decision – as one element of legal subversion that is intended to highlight the many other possibilities at hand for the judges. Often the flipping merges with parody, and sometimes parody, or even nonsense, takes over. I am very interested in nonsense, but that is for another time.

By extracting words and phrases to create an alternative narrative, my work mirrors creative techniques in poetry (e.g. erasure poetry) and non-fiction that bring out snippets of text to create a collage of subversion. For example, Tracy K. Smith’s poem Declaration uses techniques of erasure to surface the voices of enslaved people hovering around the Declaration of Independence. This case report lands less definitely with the voices of people who will be oppressed and vilified by the Supreme Court’s decision, instead conjuring the inherent instability and injustice of imposing categories of sex onto people who have not invited them. However, other writers may wish to draw out the voices of people invisibilised or horribly over-regulated by the judgment. 

Playing with words and phrases at sentence level to reframe, deepen or defy meaning, this text is also inspired by Sheila Heti’s Alphabetical Diaries, in which she re-ordered sentences from her personal diaries over many years into alphabetical order, creating a shimmering set of micro-stories that connect with each other across successive chapters. Heti’s work shows how much can be achieved at sentence-level.

The feverish, stream of consciousness feel of the initial section – the role of the court – arose naturally out of reading through the judgment and reflecting on the court’s own phrases about its own role and positioning. The numbering of the case report reverses at paragraph 38 in order to reflect the circularity and insularity of defining sex on the basis of biological sex only, and as a nod to the inherent non-linearity of time.

I would like to confirm that Eileen Myles has no awareness, conscious or subconscious, of having been coopted into the case report. Extracts from Myles’s life writing that appear at paras 26-30 of the report have been taken from their memoir Afterglow (a dog memoir) (2017, Grove Press) at pages 70-71. To my great regret, Myles has yet to be awarded King’s Counsel.

Emily Grabham

29 April 2025

References

Judgment

For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) [2025] UKSC 16.

Legal and creative texts

Cotterrell, Roger (2024) ‘Afterword: Trust and Critique after Three Decades’ in Nick Piška and Hayley Gibson (eds) Critical Trusts Law: Reading Roger Cotterrell (Counterpress).

Heti, Sheila (2024) Alphabetical Diaries Fitzcarraldo Editions.

Myles, Eileen (2017) Afterglow: a dog memoir Grove Press.

Smith, Tracy K. (2018) ‘Declaration’ in Wade in the Water Graywolf Press.