Why, may that not be the skull of a lawyer? Where be his quiddities now, his quillities, his cases, his tenures and his tricks? – Hamlet
IT’S HARD to say which view is the more jarring: that a man can become a woman because a piece of paper says he can, or that he can’t because a court says he can’t. Perhaps out of respect for the ‘non-binary’ zeitgeist we should go with both/and rather than either/or and conclude that each is rubbish in its own way.
The Supreme Court’s ruling that the category ‘women’ as used by the Equality Act (2010) refers necessarily to biological sex has been welcomed by many. To some extent this is fair. The application of the 2010 Act has been retroactively complicated by later legislation in ways its architects could not have predicted. Of particular relevance is the legislative mischief-making of the Scottish Parliament and its 2018 Gender Representation on Public Boards Act, the proximate cause of the latest pushback against the lunacy of ‘gender self-identification’.
You must have some sympathy for the judges who were tasked with the holistic interpretation of a sequence of statutes, instituted at a time when the ambient culture was nearly sane. It can’t be easy to do so from the perspective of the bizarre Bosch universe that has come to enclose all of us since then.
That said, those who celebrate that the curtain might be coming down on the theatre of the absurd are being too optimistic. This was, if I may mix my metaphors, an exercise in legal housekeeping – the lawyers have tidied the desk and if the result is pleasing on the eye now, it’s only a matter of (very little) time before the vested interests of progressive activism try to mess it up again.
We’ve been here before after all, when we were naive enough to think that the results of the independence referendum of 2016 would be implemented, and that we would be unchained from the asphyxiating structures of the European Union. What happened instead? The Establishment activated its sleeper agents in all areas of the state, visible and hidden, and launched its campaign of tireless recalcitrance. Successfully, many would argue.
It should never be the business of jurisprudence to announce the conclusions of philosophy more generally. ‘The law’, like Net Zero, Adolescence and ‘generative’ artificial intelligence, has become one of those irritatingly vogueish objects of required veneration. Lawyers are neither biologists nor metaphysicians; their excellence in matters relating to ‘quiddities and tenures’ usually comes at the expense of common sense.
The Supreme Court was not concerned with the truth – that biological sex is immutable and determinant – as much as it was with ensuring that there is a consistency of interpretation of the category ‘woman’ as it appears in the original 2010 Act and in subsequent legislation and codes of practice.
For many judges consistencyis an end in itself, but it’s quite possible to be wrong in logically impeccable ways. The truth about sex is obvious to anyone willing to open the Book of Genesis or, if that’s not their thing, their own eyes. Biological sex is constitutive of, and not contingently attached to, what it is to be male or female.
For too long women have been browbeaten into talking as if their biology is the accidental physiology on which the real essence of womanhood supervenes; and that this essence cannot be described in the vernacular of the chromosome or the language of DNA sequencing, but in more esoteric, if not quite so scientifically specific, terms.
This is meretricious metaphysics, shallow thinking dressed up in clever language. A human life is the unfolding of a process, a movement moment to moment from the potential to the actual, incrementally revealed in the physics, chemistry and entropy of the human body. A person cannot identify as male or female – it is the biology which is the precondition of personhood and self-awareness in the first place. The elevation of gender over biological sex is an inversion of the natural order of things, and the ridiculous end point of the existentialist claim that we can will ourselves to be what we would like to be. Not even God can do that.
We can put the point another way. There is a deep intimacy between biology and identity, and this implies that it is a category error to suggest that I can be ‘trapped in the wrong body’. You can no more be trapped in your own body than a building can be trapped in its own architecture.
Transgender ideology inserts a new dualism into its conception of the human person. It distinguishes not between body and soul but between body and gender and dismisses the former as being of little moral significance. In the season of Easter, it is right to point out that this is a deeply non-Christian view. ‘We preach Christ crucified’ wrote St Paul; and the world is re-enchanted by Our Lord’s bodily resurrection.
I’ll say something positive. This ruling will do good things when it comes to women’s sport, and this should be celebrated, as sport is often real life in condensed form. Transgender activism has been particularly malign here. This is partly to do with health and safety – as Fiona McAnena of the organisation Sex Matterssays, sport is a competition between bodies, not genders. We must also, however, be mindful of the greatest gift of competitive sport: that it teaches us how to lose graciously. It is wrong that the intrusion of men into women’s athletics has robbed the latter of medals. But it is just as wrong when a sport is rigged so that you can’t genuinely lose.
The Supreme Court is an unnecessary relic of the Blair times, of politics-by-law and addiction to constitutional vandalism. Its role in the national life should be that of go-to object of ridicule, a jurisprudential ‘cones hotline’ perhaps. It would be regrettable if this accidental moment of clarity generated any lasting affection for it on the part of a disproportionately grateful nation.
That said, in a time when the pleasures of civilised people (drinking, smoking, giving offence to those most eager to take it etc) make us liable either for arrest or bankruptcy, schadenfreude is pretty much all we have left. The woke antagonists and their Establishment groupies have no straightforwardly good, immediate move. Having counted on the progressive instincts of the judiciary, they were not expecting to be burned.
In response to the court’s decision, Peter Hitchens has remarked that all revolutions pause to take breath, so enjoy the squealing while you can. Expect in the coming weeks systemic and organised non-compliance with the ruling, particularly in the public sector (which is quickly becoming the only sector) and moreparticularly in the ever-aggrieved NHS.
A court that shouldn’t exist has told us something we already knew. Affronted by this affirmation of common sense, the ministerial transgender hawks are now war-gaming their pushback. And the professional agitators are on the streets already, defacing the tributes to women’semancipation and screaming the anthems of this new cult of hateful misogyny.
