Schrödinger’s Sex

Someone can be simultaneously man and woman according to UK Gov

Schrödinger’s cat was famously both dead and alive.

Since 2004, we have had a situation where some people are recognised by the government as both male and female. Simultaneously. Schrödinger would have had a field day.

Approximately 8,500 people in the UK possess a gender recognition certificate (GRC), issued in line with the Gender Recognition Act. This grants them a certificated sex which is the opposite to their biological sex. This allows a male with a GRC to do many things as a “woman” (and vice versa). But the Gender Recognition Act itself contains exceptions for certain purposes. A woman with a GRC is still to be treated as female when it comes to succession and hereditary peerages. (Of course! We can’t have women sex-changing their way into inheriting their younger brothers’ entitlement). Possession of a GRC does not change a male’s status as “father” of his children; does not prevent him from being identified as the perpetrator of a sex-specific crime such as rape; and does not make him a “woman” for gender-affected sports.

So even within the terms of a GRC, the holder is treated as both sexes at once. A male is a “woman” when he gets married, but remains the father of his children. He is a “woman” when he is buried, but a man if his deceased father has a hereditary peerage to hand down.

Men with a GRC have also insisted they are “women” when it comes to matters of discrimination, and women’s rights to single-sex services. They have demanded entry to women’s hospital wards, rape crisis centres, changing rooms and hostel accommodation. And of course, toilets. On the back of those demands, men who do not hold a GRC but who claim any manner of “trans” identities have also demanded entry into women’s services and spaces.

The recent Supreme Court ruling in the For Women Scotland case on the meaning of sex in the Equality Act 2010 (EA) brings a welcome return of clarity, common sense and scientific reality to this state of affairs. The ruling unequivocally states that the words “man”, “woman” and “sex” in the EA refer to biological sex, in all circumstances, without exception.

The judgment protects women’s and lesbians’ spaces and services from intrusion by males.

Importantly, it also leaves intact all three of the protections for trans-identifying people, whether or not they possess a GRC. They are protected – and may not be discriminated against – on the basis of their biological sex, their sexual orientation, and their gender reassignment status. The rest of us mere mortals, who do not claim a different gender-identity, have only the first two protections.

The clear legal definition in the FWS ruling is immensely important. Women are always, and only, biological women. And men are biological men, and no amount of magical thinking can make the opposite true.

Or can it?

Unfortunately, the FWS ruling is not the end of the story. It only considered how people who have acquired a GRC are affected by the Equality Act. But it does not address other legal situations where the falsification of someone’s sex might have an impact. One particular cause for concern relates to the searching of a detainee who claims to be “transgender”. Female police and prison officers have been forced to strip search men who claimed to be "women" on the grounds that this protects the prisoner’s dignity. This has not been restricted to men with a GRC, but require only that the detainee claims to be “trans”. No thought was given to the dignity of the hapless women officers, some of whom have been extremely distressed or traumatised.

For some years, and despite the absence of any legislative authorisation, people have been allowed to falsify the sex marker on their driving licence, NHS record, bank account or passport, even if they do not have a GRC. Yes, you read that correctly – a man can be male as a matter of biology, certificate (or rather the lack of one) and law, yet nevertheless have a range of ID documents declaring him to be a “female”. Such instances of sex falsification create a massive safeguarding risk – how do you protect women from a male sex offender if all his documents now show him to be a woman named Isla? Even though the FWS ruling clarified that we have the right to lesbian- and women-only spaces and services, there will be instances where it is extremely difficult in practice to exclude men who present documents saying they are “female”.

Sex-falsified documents also have implications for law enforcement. How do you identify a male fraudster if he has documents stating he is a woman? Sex falsification can also be life-threatening for the person concerned, if the doctors treating him don’t know her or his biological sex. Many symptoms and drug doses are different for men and for women. At least one baby has died because medics treating his mother for unexplained abdominal pains believed she was a man, so didn’t run any of the checks related to pregnancy until it was too late.

There has never been any legal right to self-ID as a different sex in the UK. That was clarified in an earlier FWS case in 2022. And this year, the Supreme Court ruling shone a light on the ridiculous concept that it is possible to “change sex”, even on paper. Although it only considered the EA, its logic reinforces the case for an end to sex-falsification across the board. Yet there is not a single type of documentation that has not been corrupted by allowing anyone who wishes to obtain documents which falsely record their sex. The UK and Scottish governments must urgently take action to withdraw all such documents, and reissue the holders with ones that accurately record their sex.

Until that is done, those falsified documents will provide cover for the many organisations who are refusing to implement the law, or only doing so reluctantly. 'We asked', they will no doubt cry, 'but Freddie had a driving licence showing he was a woman. How could we possibly have known otherwise?' And even organisations genuinely wanting to provide single-sex facilities will be faced with a situation where it is all but impossible to implement. Thus we will end up not only with Schrödinger's sex, but also with Schrödinger's rights - in a situation where we have an unequivocal right to single-sex and lesbian spaces and services. And at the same time we are denied them.