Gender doesn't matter

By Naomi Cunningham - posted 15 May 2025

In this entry on our blog, we offer the perspectives of one of two guest bloggers with sharply contrasting perspectives on the recent UK Supreme Court decision on the definition of a woman under the Equality Act 2010, an issue of considerable importance and which has generated much debate. The first such post on this topic, entitled "Gender matters", was authored by a former staff member of this School, Emeritus Professor Kenneth Norrie, who is an expert in family law and LGBT rights; it was published on this blog on Friday 9 May 2025. This second contribution is a response by Naomi Cunningham, a barrister at Outer Temple Chambers with expertise in employment and discrimination law and Chair of Sex Matters (interveners in the Supreme Court case). We publish both contributions in recognition of the significance of the topic and in light of that recent judgment. These pieces are offered as part of our commitment to academic freedom and to fostering informed public discourse. As guest posts, they reflect the views of their respective authors and do not represent the position of the University of Strathclyde or Strathclyde Law School. 

Professor Kenneth Norrie published his initial thoughts on the Supreme Court’s judgment in For Women Scotland Ltd v the Scottish Ministers [2025] UKSC 16 on the Strathclyde Law Blog. It is greatly to the credit of the Strathclyde Law School that I have been afforded this opportunity to reply on the same platform.

Norrie starts badly by misnaming two of the three protected characteristics which he lists: sexual orientation is a protected characteristic, but the other two relevant for these purposes are not “gender” but sex, and not “trans identity” but gender reassignment. The former may not matter much in light of the Supreme Court’s observation that the terms “sex” and “gender” are used interchangeably in legislation, but the latter is an unjustified gloss on the words of the Equality Act 2010 (EqA): a gloss which was never persuasive, and is now unsustainable in light of the Supreme Court’s confirmation that the concept of sex in the EqA is binary (¶91). As the High Court noted in AA v NHS England at para 131, to be covered by gender reassignment one must have made a conscious decision which can be properly described as settled.

Norrie then takes exception to the Court’s approach to statutory interpretation, saying: 

Instead they assert (para.156), somewhat tendentiously and without much explanation, that s.9(3) will also disapply the rule in s.9(1) where the terms, context and purpose of a later enactment (in this case the Equality Act 2010) require this either because there is a clear incompatibility or because the later Act’s provisions would be rendered incoherent or unworkable: with touching faith in our politicians they say that “an interpretation that produces unworkable, impractical, anomalous or illogical results is unlikely to have been intended by the legislature” (para.160).

This is a surprising approach for an academic lawyer to take to statutory interpretation. As Lord Nichols said in R v Environment Secretary, Ex p Spath Holme Ltd [2001] 2 AC 349, at 396-397: 

Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613: 'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.'

In other words, the rules of statutory interpretation don’t reflect faith (touching or otherwise) in our politicians: they are simply rules that the common law has developed for the purpose of arriving at the legal meaning and effect of words used by parliament. There is nothing tendentious about the assertion that s.9(3) will disapply the rule in s.9(1) where that is required by a clear incompatibility or because the later Act’s provisions would be rendered incoherent or unworkable. On the contrary: it is simply saying — almost tautologously — that s.9(3) will disengage s.9(1) where it must.

Norrie admits that there is something in the Court’s objection at paras. 202–3 to a “certificated sex” reading that the gatekeepers of single-sex spaces cannot be expected to know whether a particular person has a gender-recognition certificate (GRC) or not. It is ironic that he treats as a strong point in the Court’s reasoning what is in fact a minor error: the Court says that the duty-bearer cannot ask whether someone has a GRC. That is a widespread belief, but one which has no foundation in law.

The point is a good one, in substance, though. It will certainly be impracticable, particularly given the powerful privacy protections built into the Gender Recognition Act 2004 (GRA), to expect duty-bearers to distinguish between otherwise materially identical cases on the basis of GRCs; not least because a rule admitting only women and men with special certificates saying they are women will necessarily reveal to the world the GRC status of any man who is admitted on that basis.

Norrie’s answer to this point is that the “certificated sex” reading of the EqA has been widely assumed to be the correct one for twenty years, and no public body has complained. That is true, but it may be questioned whether the fact that no public body has seemed to think it was a problem that women’s rights were being almost universally violated can be taken as evidence that all was well.

Norrie then says this in parentheses:

[T]he present case was raised by a well-funded gender-critical pressure group – which, with some chutzpah but without shame, complained that certain women-only groups, organisations and charities were under pressure from funders to include trans women (para.203)

The complaint referred to is contained in research presented to the Court by the human-rights charity Sex Matters, which did not raise the case, but was one of two interveners (the other being the Equality and Human Rights Commission) permitted by the Court to make oral submissions in the appeal brought by For Women Scotland. It is unclear which group Norrie considers “well-funded”, and no clearer what he thinks is the relevance of whether either the charity Sex Matters or For Women Scotland is well-funded, unless he intends to imply — without clearly stating, and therefore without going to the trouble of evidencing — that there is something nefarious about the manner in which either is funded. For the record, For Women Scotland’s accounts can be viewed online at Companies House. A sufficient clue to the extent of its funding is in the expression “micro company accounts”. As a newly registered charity, Sex Matters has not yet submitted annual returns, but as its Chair I am able to say that its annual income is still dwarfed by that of Stonewall alone. Neither Stonewall nor any of the other transactivist groups (some of them indeed well-funded, including from the public purse) applied to intervene in the case.

Norrie’s use of the words “chutzpah” and “shame” is disquieting. A tiny grassroots women’s pressure group took on the whole might of the Scottish Government (backed by a great weight of confident legal expertise) in defence of women’s basic rights, and won. “Courage” and “pride” would be more apt.

Norrie next says that the Court “valiantly” tried to limit the scope of its decision to the definition of “woman” in the Act. Once again, it is not clear what he means by that. The Court says at ¶265 (in the section summarising its reasoning):

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 (para 264).

He goes on to claim with some emphasis that although this means that the exceptions which permit (for example) single-sex services and spaces may be limited to women only (the female sort), it doesn’t follow that it is unlawful to operate on a “trans-inclusive” basis. He says: 

But that does not mean that it is a breach to fail to limit such spaces on that basis. (That was the most important sentence in this blog).

… the practical effect of the judgment is to shift the onus from those claiming that allowing trans people with a GRC into single sex spaces is a breach, onto trans people (with a GRC) seeking to access single sex spaces.

If that is really the most important sentence in the blog post, it would have been helpful to know whether Norrie is saying that it will still be lawful to include in “single-sex” spaces for women (a) any man with a GRC saying he is a woman; (b) any man who says he is a woman, whether or not his claim is backed by a GRC; or (c) any random man at the discretion of the duty-bearer. Bearing in mind that the Court has ruled that “trans women” are men for the purposes of the EqA (even those who hold GRCs, but a fortiori those who don’t), there is no material difference between those three categories. So whichever of those possibilities is Norrie’s intended meaning, they stand or fall together.

Norrie does not address the most obvious difficulty with the proposition that it is lawful to operate a “single-sex” space on the basis that men are sometimes admitted, namely that if men are sometimes admitted, it is not a single-sex space any more. This really should not need to be said; that it does, even to an undoubtedly distinguished Professor (Emeritus) of law, is testament perhaps to the power of compliant language. Those who have trained themselves to say “trans woman” and “she” of men who say they are women really do seem to have disengaged their own ability to understand that such men are still — well, men.

Once that is understood, the problem is clear. The space is not a single-sex space, but a mixed-sex space from which men are mostly (but not always) excluded. It follows that it can’t be an exercise of the right to provide a single-sex space provided for by one of the single-sex exceptions in the EqA. And it follows further that the exclusion of men who don’t assert a cross-sex identity will be unlawful direct sex discrimination.

The second most obvious problem with providing supposedly single-sex spaces or services on a mixed-sex basis is that it will usually if not always put women at a particular disadvantage compared to men. That’s both because men are more dangerous to women than women are to men, and because — doubtless as a result — women tend to feel and have enforced against them taboos about physical modesty more strongly than men. It will therefore fall to be justified as a proportionate means of achieving a legitimate aim if it is not to be unlawful indirect sex discrimination. Proportionality will be difficult to establish when the use of a space or service by one trans-identifying man will make it mixed-sex, and so deprive all actual or potential female users of genuinely single-sex provision — in other words all the relevant women’s privacy and dignity (and potentially safety) will have been violated usually for the benefit of one man — and when operation of the space or service in this way will necessarily involve unlawful direct sex discrimination against those men who are excluded.

Norrie next suggests that the anomaly created by a certificated sex reading of the EqA for the pregnancy and maternity provisions could have been got around via s.3 of the Human Rights Act 1998 to read “pregnant woman” as meaning “anyone who is pregnant”. If the pregnancy provisions had been the only source of difficulty, that might perhaps have worked. But they were not: as painstakingly set out by the Court, a certificated sex reading made the single-sex exceptions unworkable, made nonsense of the protected characteristic of sexual orientation, required the public sector equality duty to operate on the basis of “a confusing group [which] cuts across and fragments both biological sex and gender reassignment into heterogeneous groupings which may have little in common” (¶239), and much more besides. Given these difficulties, the s.3 interpretation proposed by Norrie would fail the test in Ghaidan v Godin-Mendoza [2004] UKHL 30 by adopting “a meaning inconsistent with a fundamental feature of the legislation” (para 33).

Norrie’s complaint that the appellant’s arguments were based around “the fear they assert that cisgender women have of trans women who carry in each of their cells a spare Y chromosome” is unattractive in its implication that women’s fear of men in women-only spaces may be feigned. It is also bizarre to characterise men who say they are women as simply carrying a “spare Y chromosome” in each of their cells: they are male not merely in their chromosomes, but in their reproductive anatomy, their stature, their skeletons, their musculature, their tendency to grow hair on their bodies and lose it from their heads, in their greater propensity to violent crime; and indeed in their early socialisation. It is as sensible to define insects as mammals encumbered by a spare pair of legs.

Norrie illustrates his piece with pictures of April Ashley and Stephen Whittle, both of them in their Sunday best on the days they received their respective honours from the Queen, and complains that Ashley is “demonised as a danger to women with XX karyotype”. This rhetorical move is familiar in the wider debate, but it is disappointing to see it repeated by a distinguished academic. Women’s insistence on women-only spaces no more demonises trans-identifying men than it demonises other men: even if the need for single-sex spaces were solely about safety, and not privacy and dignity as well, it would be justified by the vastly greater propensity of men than women to commit crimes of violence and sexual assault; and the disparity in the average size and strength of men and women. If recognising and acting on those incontrovertible facts is a matter of prejudice, then there is no justification for single-sex spaces at all.

The suggestion that trans men (women who identify as men) who have sufficiently modified their bodies with artificial testosterone to pass as men will be required to use female toilets and changing rooms, to the alarm and distress of other women, is as hackneyed, and as easily dealt with: the Court does so at ¶221.

The same “demonising trans people” trope reappears a few paragraphs later, when Norrie says the EqA has been used by the appellants to create monsters from whom decent people must be protected. At that point he suggests that the Court should have been “more questioning about the reality of the threat posed to cisgender women from transgender women: the risk, that is to women with a chromosomal makeup of XX from women (defined by law as such) with a chromosomal makeup of XY”. Here we’re back at mammals of the kind that have six legs. Men with GRCs declaring them to be women are only “defined by law as such” where s.9(3) does not apply; and in any event, it is bizarre to suggest that such men by reason of their possession of a certificate pose less risk to women than men without a certificate. The Court deals with a closely parallel point in relation to the relative risks of drivers of different sexes at ¶184.

But there is also a serious point here about the images used by Norrie. It should not be difficult to grasp why it would be unacceptable to admit men into women-only spaces even if all trans-identifying men looked like April Ashley. But there is good reason for the carefully curated images favoured by trans-rights activists and their allies. Although they have no place in rational argument, they operate effectively at an emotional level. For the same reason, no doubt my use of these two images will call forth howls of rage.

These men, known respectively as Amy and Rose, are the trans-identifying male protagonists in a case called V v Sheffield Teaching Hospitals NHS Foundation Trust (Leeds ET, 2022), and in the Darlington nurses case (Newcastle ET, ongoing), respectively.

Amy was in the habit of using the women’s changing room at the hospital, with the permission of managers. Before he started work, female colleagues had been given training, praised by the tribunal, to ensure their compliance. Amy complained that he had suffered gender-reassignment discrimination in being questioned about a remark he had made to a female supervisor that he had been so hot at work that he had taken off his underwear. The tribunal found that Amy had a tendency to blur appropriate boundaries “and perhaps to ‘overshare’ with her [sic] colleagues”, and noted that he was reported to have been seen naked from the waist down in the women’s changing room, but found nevertheless that he had suffered gender-reassignment discrimination. (The deficiencies of the tribunal’s reasoning were analysed for the Legal Feminist blog by Anya Palmer.)

Rose is the colleague whose use of the female changing room in the Darlington Memorial Hospital is at the heart of the Darlington nurses’ claim. One of the nurses, Karen Danson, recently gave a heart-breaking account to the Daily Mail of why she found Rose’s presence (and behaviour) in the women’s changing room particularly traumatic.

Norrie’s images of April Ashley and Stephen Whittle prepare the ground for what I take to be the heart of his objection to the judgment:

Underlying the decision of the Supreme Court is how the Justices conceive trans people. Throughout, they make the assumption (made explicit, for example, at para.221) that a trans woman with a GRC is a “male person living in the female gender” and a trans man is a “woman living in the male gender”… So a trans man (for example) is nothing more than a woman who pretends to be a man.

In other words, the Court has rejected the gender-identity creed: it has refused to intone “Trans women are women, trans men are men, and non binary people are valid”, preferring instead to proceed on the basis of material reality. Norrie continues: “This is a complete rejection of how most trans people conceive transgenderism: that the true definition of sex lies beyond the merely physical…”

The obvious retort to this is: “Where exactly does the true definition of sex lie, then? And what is it?” Not everything that matters is physical or material, for sure (money is one case in point; love is another). But if you are going to ask the law to attach consequences to something, you have to be able to define it. Airily asserting that it is “beyond the merely physical” won’t cut it. Is it about your inner essence? Or how you dress? How much you smile and giggle and tilt your head? Whether you wear make-up?

Norrie’s next internet trope is the comparison with gender-neutral toilets in private homes, and on trains and aeroplanes. As has been pointed out countless times, most people do not open their toilets at home to the general public; and single-occupancy self-contained cubicles are suitable for unisex use precisely because they are single-occupancy. A cubicle opening onto a cul-de-sac shared space (especially, but not only, in a noisy venue) is potentially dangerous for women in ways it should not be necessary to explain.

Then Norrie says this:

I accept that XX people are entitled to their dignity and I can just about understand how they might consider that dignity compromised by being in a changing room with a person with an XY karyotype in their cell structure. But remembering that they have a 1 in 10,000 chance of that actually happening, that indignity is pretty marginal, and entirely self-imagined.

It is hard to know where to begin with this. The grudging flavour of the admission that women are entitled to their dignity? The contemptuous reference to women as “XX people”? The strenuous misunderstanding of women’s well-founded disinclination to undress in the presence of random men as finding their dignity compromised by “being in a changing room with a person with an XY karyotype”? The bizarre reference to a 1 in 10,000 chance?

Doing the best I can with the last, it seems to be Norrie’s estimate of the proportion of the population who hold a GRC; and that proportion seems, in his mind, to mean that the rest of the population have only a 1 in 10,000 chance of meeting a person with a GRC. Even passing over the innumeracy of that, its relevance remains obscure. Norrie must be aware that, in practice, vanishingly few if any purportedly single-sex spaces are operated on the basis that men are excluded unless they have a GRC. The reality, brought about by the chilling effect of the possibility that any given trans-identifying man may have a GRC, is that such spaces have until recently been (and no doubt still overwhelmingly are) operated on the basis of self-ID. Few women will have been spared the unwelcome presence of a man in what should have been a single-sex space. I met this man and a male friend of his in the ladies’ toilets at the Scottish parliament.

Norrie’s list of the indignities he thinks trans people suffer daily includes stares, looks of contempt, whispers, pointing and occasionally overt expressions of hostility. He says: “These are hurts to the dignity of the individual that are overwhelmingly more real and genuinely more harmful to emotional wellbeing than anything suffered by cisgender women worried about the 1 in 10,000 chance that there might be a legally but not biologically defined woman peeing in the next cubicle.” His plea for empathy for trans-identifying men who suffer the trauma of puzzled looks sits ill with his contemptuous reference to women “worrying that there might be a legally but not biologically defined woman peeing in the next cubicle”, and his determined failure to understand either the reasons why we have single-sex spaces in the first place or the impact on women of admitting men to women’s spaces.

Focusing on safety for a moment, single-sex spaces are needed for safety, not because all men are a danger to women, but because women have no way of telling at a glance which men are a danger to them.

I will make this concrete, and no doubt Professor Norrie will think it unkind of me to do so. But there is a range of possible reasons why a man dressed in women’s clothes may be in the ladies’. He may be a man who genuinely believes himself to be a woman in his inner essence, and wants to pee, and feels uncomfortable using the gents’, and means no harm to anyone. That’s the least bad possibility, but even so he is betraying a disquieting contempt for women’s boundaries, and a willingness to prioritise his own comfort over the comfort and privacy of the female users of the space. But there are other possibilities. He may be a fetishist. He may be a rapist in search of a victim. He may be there to place hidden cameras to spy on women in a state of undress. He may be there to enjoy a sense of power that violating women’s boundaries gives him.

The point is that we can’t tell at a glance which of these things he is: what we see is a man.

Finally, Norrie claims that Court’s decision exacerbates bad relations between the trans community and those who insist that gender and sex are biological matters. Bearing in mind that this is chiefly a conflict between men and women — on the one hand, men who want access to women’s spaces, to bully or shame women into accepting opposite-sex intimate care, to elbow women aside in their own sports categories; and on the other, the women who say “no” to those men — the complaint that restoring women’s rights to them exacerbates bad relations is dismaying. If women would only be good and obedient, men wouldn’t have to get angry with them.

Of course the shorter answer to Norrie’s point about s.149 is that the public sector equality duty doesn’t apply to the exercise of judicial functions: see ¶3 of schedule 18 to the Act.

Conclusion 

The legal reasoning in Norrie’s blog post is surprisingly weak. In fairness to Professor Norrie, it should be remembered that this is in the nature of a “first pass” at a substantial Supreme Court judgment in an area of law in which he is not a specialist. What is more disquieting is his approach to a conflict between men’s wishes and women’s privacy, dignity, autonomy and safety which displays a tender empathy for men who want to be women while stereotyping women’s meticulously evidenced objections as feigned or hysterical. Norrie’s call for kindness is in truth a thinly disguised demand for submission.