Now Will Politicians Admit They Should Never Have Introduced the Chaos of Gender Recognition Certificates?

 

MARK ELLSE

By the end of the 20th century, the spirit of the age was clear: what right-thinking person could possibly imagine that there was a significant difference between men and women? And, with there being no difference to speak of, why should it be any sort of a problem if a man or a woman should want to be considered as a member of the opposite sex? In 1999, the Gender Assignment Regulations made discrimination on grounds of gender reassignment illegal. The substantial Gender Recognition Act (GRA 2004) followed. In almost every stage of this Act, the attitude to sexual difference on display among lawmakers was ‘Why should it matter?’

The primary function of the GRA 2004 was to give the transsexual a certificate “to provide them with the opportunity to enjoy the rights and responsibilities appropriate to their certified gender and to leave behind the vulnerable position, the limbo, between two genders which they presently have to endure“. In almost every contribution to debate, such sentiments prevailed, egged on by European judges’ broad view that Directive 2000/78/EC (equal treatment) covered trans rights. In the event the bill was passed by the Lords (155/57) and the Commons (355/46). Cameron and Osborne didn’t vote; Kenneth Clarke voted for the bill. Only a few quaint eccentrics demurred, Ann Widdecombe saying things like “It is muddled and a legal quagmire” and “There is a difference between allowing something to happen and institutionalising it”.

GRA 2004 has 29 sections. One through eight deal with the process of acquiring a Gender Recognition Certificate. Sections 10-29 largely deal with administrative consequences of having a certificate – from marriage and civil partnerships to social security benefits and peerages. It is section 9 that is the nub of the act. Here are the relevant clauses, run through an Artificial Intelligence engine to make them clearer.

9(1) When a full gender recognition certificate is issued, the person’s gender, for all purposes, is legally their certified gender.

9(2) This does not affect actions or events before the certificate was issued, but it does apply to how laws and documents — past or future — are interpreted.

9(3) This is subject to any exceptions set out in this Act or other legislation.

9(1) embodies all that was promised in the announcement of the bill and its debate – the “opportunity to enjoy the rights.. .appropriate to their certified gender” and the ability to “leave behind the limbo between two genders”. 9(2) says when these rights are created. It is 9(3) which needs thinking about. Together, 9(1) and 9(3) say ‘You have the rights of the new sex’, ‘Except when this Act, or anything else, says that you don’t’.

The GRA 2004 has exceptions for sport, on grounds of fair competition and safety, and for gender-specific offences. (Though no woman can commit rape, someone male can face that charge, irrespective of his acquired gender.) But the presence of 9(3) in GRA 2004 says that you have the rights of the new sex ‘except when anything else says that you don’t’. Here we see, built into the GRA 2004, a mention that future acts may limit  the rights of a transgender person to be treated as having the acquired gender. In particular, as we shall see, it is the Equality Act (EA 2010) which the Supreme Court decided could be regarded as an “other enactment” that, under 9(3), limited the right under 9(1) of a transsexual person to be regarded legally as their acquired gender “for all purposes”.

The application to the Supreme Court

A challenge to the GRA 2004 could have arrived in a host of ways but it happened to be in connection with a Scottish law about equal representation, male to female, on public bodies. The Scottish government wanted transwomen to be counted as women. A group of biological women (For Women Scotland) objected. They appealed to the Supreme Court, arguing that the Equality Act (EA 2010) protects biological women from being displaced from equal representation in society by men: “even if that man has a Gender Recognition Certificate (GRC), he is still a man” and therefore ineligible as a representative of women.

Understanding the Supreme Court’s decision is made difficult by the presence of three public versions of its views – the verbal hand-down given live on April 16th 2025, the press summary and the full judgment, all with rather different flavours. I shall quote from the full judgment.

The court said that it was “aware of the strength of feeling” on both sides of the argument and was punctilious in describing its role in the process, in essence interpreting the plain meaning of Parliament’s words showing Parliament’s objective intent, with words usually assumed to have consistent meaning in a law.

The court acknowledged submissions from external charitable bodies. Sex Matters argued that “sex” in the Equality Act means biological sex. By contrast, the Equality and Human Rights Commission argued that a biological man with a Gender Recognition Certificate (GRC) is indeed a woman for the purposes of the Equality Act on the grounds of the GRA 2004 9(1). Amnesty International concurred, submitting that “human rights principles demonstrated [it] beyond doubt”. A joint submission on the part of several lesbian organisations argued that “a (biological) male can never be a lesbian as a matter of fact whether in possession of a GRC or not”. There was clearly trouble ahead.

The history of sexual equality legislation

The court then went to the legal background, particularly the Sex Discrimination Act (1975). The history is clear: “Before the enactment of the GRA 2004 there is no doubt that references to sex, man and woman in the SDA 1975 were references to biological sex,” – no surprise because trans issues had not then been on anyone’s agenda. But the Equality Act 2010 came after the Gender Recognition Act 2004 and the court’s judgment produced example after example of places in the Equality Act which only made sense if they were referring to biological sex.

Tellingly it referred to EA 2010 section 11: “In relation to the protected characteristic of sex — (a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman”, backing this up with: “The definition of these terms contained in section 212(1), when applied in particular to section 11 [the protected characteristic of sex which is at the heart of this case] is not capable of being interpreted on the basis of certificated sex.” (Section 212 of EA 2010 states “‘woman’ means a female of any age”.)  The court contrasted this with gender reassignment, quoting EA 2010: “A reference to a transsexual person is a reference to a person who has the protected characteristic of gender reassignment.” It pointed out that, without the concept of biological sex, parts of EA 2010 would be incoherent, for instance: “Sexual orientation means a person’s sexual orientation towards – (a) persons of the same sex, (b) persons of the opposite sex, or (c) persons of either sex.”

Throughout analysis of the Sex Discrimination Act 1975 and EA 2010, the court demonstrated that, though overtly aiming at sexual equality, such equality had always been limited. There are genuine occupational qualifications (GOQs), which limit such equality, for instance situation (“for the purposes of a private household”), by essential differences between men and women (“the job called for a man for reasons of physiology”), for reasons of decency (“Where the job needed to be held by a man to preserve decency or privacy because it was likely to involve physical contact or where men would be in a state of undress or using sanitary facilities”) etc.

The Gender Reassignment Regulations (1999) arose out of a European Court of Human Rights case concerning a transwoman who, in a Chief Constable’s view, should be refused appointment as police officer because: “She [sic] was not able to carry out intimate searches of either men or women. She could not search men because she presented as a woman and she could not search women because she was male as a matter of law” – a good example of the “limbo between the two genders” that trans individuals face. That case went against the Chief Constable, who was found to have infringed human rights by denying employment. But that, as with several other quoted cases, was a discrimination case, rather than a test of whether a person’s sex was defined biologically. In general, like SDA 1975, the 1999 regulations point towards the limited equality of other legislation, in which biological sex generally trumps.

The conflicts between GRA 2004 and other equality legislation

This trumping of biological sex is not without reservation. The court was puzzled and pondered whether “‘”the meaning of sex in the SDA changed before and after the enactment of GRA 2004”.

Before… there is no doubt that references to sex… were… biological. … On enactment… sex remained biological. … There is no reason to suppose that Parliament intended… to introduce a change. … But even if we were wrong about that… it is difficult to understand… some of the amendments… made by GRA 2004. … A statute… should be interpreted… without recourse to the predecessor.

Small wonder that the justices were agonising. The GRA 2004, by promising “the rights of the acquired sex for all purposes” had cut across the gender divide present in all the other sexual equality legislation. The Supreme Court, charged with determining “the plain meaning of Parliament’s words” had found that the GRA 2004 had destroyed axioms on which all the other equality legislation was based. And there could be no doubt that this was Parliament’s intent. It wasn’t deliberate intent to cause chaos, just the sort of chaos that brainless meandering generates. It was as if Parliament had considered it unfair to force the same rules on both sides of a chess game, but decided it should be perfectly admissible for one side to play by the rules of draights.

The court knew “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)?’” In other words, ‘All but one of the discrimination laws say that both players should abide by biological rules. Can we use 9(3) in GRA 2004 to neuter 9(1) so that GRA no longer forces us to use trans rules?’

The solution – pure pragmatism

At this point, the Supreme Court stopped agonising and turned instead to “Analysis of core provisions of the EA 2010”. It is this that gives the judges a solution. They trotted through the Equality Act and analysed a bundle of examples, demonstrating that it would be chaos unless 9(1) of GRA 2004 were neutered. It was as if they were repeating Ann Widdicombe’s words – “a muddled and a legal quagmire” – the sort of chaos that the Western world has lived with since the trans lobby set up its stall.

We therefore conclude that the provisions of the EA 2010 which we have discussed are provisions to which section 9(3) of the GRA 2004 applies. The meaning of the terms ‘sex’, ‘man’ and ‘woman’ in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate.

It was as if they had said to Parliament: ‘We know what you said you wanted, for the trans to be treated as though they had actually changed sex, but it simply won’t work, so you can’t have it. Probably, most of you don’t want it now, having seen the chaos it causes and that it won’t win you any votes.’

Could there have been other solutions? Most certainly and the Supreme Court considered one. There could have been a variable definition of sex, changing from situation to situation, rather like having the rules of draughts on the white squares and those of chess on the black squares. The court concluded: “We reject the suggestion… that the words can bear a variable meaning… [with] pregnancy…referring to biological sex… [and] elsewhere… certificated sex.” Just too complicated. The court even referred to the merits of “ordinary language”.

The court gave assurances about the way that the Equality Act provides cradle-to-grave, wrap-around protection to all and, if you are trans, you mustn’t feel that any side has ‘won’ in this action. Truly, everyone really should be kind to you. But as for questions about having a right to play women’s sports, use women’s changing rooms, carry out strip searches of women, joining a lesbian dating agency or being part of the female quota on Scottish boards, the answers will be no, no, no, no and no. That’s just how it is.

In truth, dreams of an ambisexed world, in which men and women are pretty much identical, are an illusion. There is a deep truth in the nature of mankind and that it is sexed – male and female. As for Gender Recognition Certificates, are they worth anything? Probably little more than the ability to get a replacement birth certificate.

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This article (Now Will Politicians Admit They Should Never Have Introduced the Chaos of Gender Recognition Certificates?) was created and published by Daily Sceptic and is republished here under “Fair Use” with attribution to the author Mark Ellse