THE Supreme Court’s ruling on the definition of a woman has “been misinterpreted”, Lady Hale has said.
The former president of the Supreme Court, who was the first woman to hold the role from 2017 until her retirement in 2020, said she did not want to “undermine the court and its authority by being critical of its decisions”.
However, she questioned the implications of the ruling during an appearance at the Charleston literary festival in East Sussex, the Guardian reports.
In April, the Supreme Court ruled that under the Equality Act 2010 a woman is defined by “biological sex” and does not include a transgender woman with a Gender Recognition Certificate (GRC).
This decision went against how the law had been interpreted across public and private bodies in the UK for the past 20 years.
In the weeks following the judgment, the Equality and Human Rights Commission (EHRC) issued interim guidance that banned trans men and women from toilets aligning with their acquired gender, and other single sex spaces.
It was a move described as “cruel”, “authoritarian” and “segregation”.
Trans women were subsequently banned from playing women’s football and cricket.
And now, Lady Hale has told a literary festival that while she didn’t want to “undermine” the court, now that she had retired she could be “much more critical of the way it’s been received”.
She applauded the festival’s organisers for going ahead with that decision “despite the fact that there are people saying that you can’t do that”.
Hale, a member of the House of Lords, added that the judgment “says nothing about that”, adding: “It’s for other people to work out the other parts of the Equality Act, which permit but do not require services to be provided differently for people according to sex.”
She also questioned the meaning of “biological sex”.
Hale added: “I was with some doctors last week who said there is no such thing as biological sex.”
She said there are “plenty of things to quarrel with” about the judgment, but her main concern was the “very binary reaction” to it, adding that the answer to the question was “somewhere in the middle”.
“So that’s what I very much hope we will come out with when people have calmed down and start being sensible about things,” Hale added.
Julia Hoggett, Hale’s daughter and fellow panellist who is the CEO of the London Stock exchange, said it was the “duty of society to foster that conversation now”.
Hale added: “Yes, it’s on all of us to foster it.”
Hoggett was the first gay person to be employed in her role and has previously been outspoken about the importance of LGBT+ representation in the workplace.
Asked by an audience member whether trans women should count towards gender quotas on company boards, she said: “The idea that the trigger for all of this case was whether trans women should represent women in the representation of women on boards, I find heartbreaking.”
The case in the Supreme Court was initially heard in the Scottish Courts, after For Women Scotland (FWS) challenged Scottish Government guidance that included trans women with a GRC on gender quotas on public boards. FWS repeatedly lost their case in the Scottish Courts, before taking their challenge to the Supreme Court.
Hoggett added that she would love to have “a talented trans woman sitting on a board of mine”.
In 2019, Hale delivered the Supreme Court judgement that ruled Boris Johnson’s advice to the queen that the UK Parliament should be prorogued at the height of the Brexit crisis for five weeks was unlawful.
“The spider brooch was a mistake,” she said, adding that if she had known the attention it would attract she “would have worn a frog”.
Hale said she was not aware of the song.
“The object of the exercise was to uphold constitutional principle and the rule of law, and to say to the government there are things you cannot do,” she said.
“It’s a simple message. There are a few things, not very many, but there are a few things you cannot do, and it’s our job to tell you that.”
