Last year, at the Battle of Ideas in London, I had the immense pleasure of meeting (and drinking with, several nights in a row) Marian Calder, pictured centre above. Marian is the co-founder of For Women Scotland, victors yesterday in a UK Supreme Court case which has finally clarified that law over what a woman is: Now, and henceforth, a woman is an adult human biological female. The verdict was 5-0, with no judges in dissent. A momentous outcome.
Anyway, back to Marian: She will forgive me I hope if I share some hopefully pertinent and non-patronising observations.
First, that she and her dozens of colleagues in For Women Scotland are amongst the bravest women you could hope to encounter. Irish people cannot fathom, I think, the sheer entrenched power of the SNP Government in Scotland at the time when Marion and her colleagues began their fight to have women recognised as, well, women. They have not just won a court case – they have taken on the entire Scottish, and then the entire British, establishment, and won. And in so doing they have shifted public opinion on the transgender issue almost one hundred and eighty degrees. They did so at considerable peril to their own reputations, careers, and even relationships with friends.
Yesterday, they won.
Second, that to this day, comparatively few people I think truly understand the scale of the radicalism against which they were fighting. Then First Minister of Scotland Nicola Sturgeon had her Government argue – and it continued to argue in court until very recently – that Scotland’s Gender Recognition Law (based on its Irish equivalent) meant that a person with a Gender Recognition Certificate could “change their gender for all purposes”. That meant, in law, that anyone who said they were a woman was a woman. This is the law in Ireland as I speak: Tomorrow, I might legally transmute my sex with a piece of paper and do nothing else, and I will be a woman in law. I could change nothing about myself and be counted a woman for the purpose of political quotas. I would be entitled to demand equal access to women-only spaces. I would have a legal right to be considered a woman for the purpose of accessing the local changing rooms in my gym (if I were the gym-going type, that is).
According to the Scottish law, and the Irish, the words “man and woman” have no meaning at all, beyond being a label that we choose to apply to ourselves. Say you are a man, and you are one. Say that you are a woman, and you are one.
Third, that the demands of For Women Scotland – and indeed a great many other campaigners in this area – are not remotely extreme. They do not seek to wish transgender people out of existence or deny somebody the right to choose their own name or wear the clothing they desire. In that sense these are women of the mainstream: Have the freedom to live your own life as you desire, they say, but don’t take the piss.
Thanks to yesterday’s Court ruling, “live life as you wish but don’t take the piss” is now the law of the land in Britain. People who are trans are still entitled to ask others to maintain the polite fiction that they have changed their sex. The vast majority of people, I suspect, will be happy to maintain that polite fiction – probably even more so now that the court has ruled as it has and maintaining that fiction is no longer a direct threat to women’s rights.
All that Marian Calder and her colleagues wanted – ever – was a recognition in law that women are born, not made, and that they are biologically distinct from men. That is a recognition that they now have. They have fought a good fight, and won.
But what about Irish law? In Ireland, that fight remains unwon, though there are some – like the Countess – fighting it still. The good news is that while UK laws do not apply in Ireland, we maintain a common law jurisdiction which means that Judgments of the UK Supreme Court, while not Irish legal precedent, will and must be given due consideration as important and notable cases by the Irish courts. Should a similar case end up before the Irish courts, yesterday’s judgment will carry weight in the deliberations of the judges.
But as yet, nobody has brought this to a head in Ireland, where we have already had at least one case of a very violent and misogynistic man being accommodated in a women’s prison because he claims to be a woman and the law says his claim is enough to make him one. Our politicians – those in office – are substantially the same politicians who brought this situation about. They are unlikely to reverse it in the short term.
We need a Marion Calder of our own, in short. And no, that person is not Enoch Burke.
I will leave you with this thought: For Women Scotland pursued their case through the courts, hired good lawyers, and won. They fought strategically, and relentlessly, and at great risk to their own reputations. And not once in that fight did they find it necessary to breach a court order, or shout at a Judge. There’s a lesson there.