The importance of language in law - For Women Scotland v Scottish Ministers

Text of talk by Sally Wainwright to WDI side event at UN CSW 12/03/26

The transgenderist project has been, above all, a war on language. The egregious harms done by feeding unnecessary drugs to children, or removing healthy body parts, and the insult to women’s dignity privacy and safety, are only possible if you’ve already bought into the linguistic gymnastics that deny basic truths.Before any of those things can take place, there has to be some level of acceptance that men can be “women”.

Men can be women, it’s true. But only if you first redefine the meaning of the word “women” to be “adult human females and any men who pretend to be women”. Similarly, men can literally be “lesbians”. So long as you first redefine the word lesbian to mean “women who are same-sex attracted, and any heterosexual men who pretend to be women.”

We see the same linguistic shenanigans in many other aspects of what was once normal speech. I always shudder when I read that an event is “inclusive” because I know that it excludes me and other women who know what a woman is.

Last weekend I went to a lecture by Caroline Criado Perez. What was remarkable about it – but shouldn’t have been - was that she spoke about women, and female bodies, as if it was 15 years ago – no apologies, no explanations about what she meant by the words ‘women’ or ‘female’. She just spoke in normal language and assumed – rightly – that everyone would understand her.  

At the end of the event, the organiser told us that the lecture was in support of a charity which works with PEOPLE with endometriosis. Hmmm. What kind of people could they possibly be? And just for good measure, the lecture was being hosted by Edinburgh MEDICAL school. How have we got to the point where even doctors don’t know the difference between men and women?

This mangling of language would have been grating at any time, but somehow it struck an even worse note following an hour long talk which immediately made sense, without having to translate trans-speak into English.

The FWS case was essentially about statutory interpretation, that is, determining the precise meaning and application of the legislation. This is usually needed where laws are ambiguous or poorly drafted. There are certain rules which are applied, as well as an attempt to align the law with the original parliamentary intent. In this case the question was what is the correct meaning of the words Woman, Man and Sex in the Equality Act 2010? Could women include men who “live as women”, as the Scottish Government initially claimed?Tho I have no idea how to live as a woman – I’ve been told often enough that I’m doing it wrong - so I can’t see how a man can know.

FWS challenged that definition in court and – on appeal – won a ruling that the Scottish Government had attempted to redefine the meaning of the word woman as set out in the Equality Act, which was outside its legislative competence.

This meant that the law in Scotland was again – briefly - aligned with the Equality Act, which defined a woman as a female of any age.

The Scottish Government then made a second attempt to redefine woman, this time claiming that men with a gender recognition certificate constituted women under the Equality Act definition. And it was this that led to the Supreme Court case. 

One of the rules Courts use to determine how legislation should be interpreted is the Literal Rule. This states that words should be given their ordinary and natural meaning. 

The EA states that the protected characteristic of sex refers to a man or a woman. It then defines a woman as a female of any age, and a man as a male of any age. The judges concluded that

The definition of sex in the Equality Act makes clear that the concept of sex is binary, a person is either a woman or a man …… Although the word “biological” does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman. These are assumed to be self-explanatory and to require no further explanation.

The judges referred in their ruling to sex as recorded on a GRC as “certificated sex”. They said that

a certificated sex interpretation would cut across the definition of the protected characteristic of sex in an incoherent way.

They described how this would mean that a woman was a biological female without a GRC or a biological male with a GRC. They added

We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls.. with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.

They were also concerned that a certificated meaning of sex would mean it could only be determined if you knew whether someone had a GRC or not, and that such a certificate is confidential.

Using the certificated meaning of sex also gives us the ridiculous notion of a pregnant man. They’d not be entitled to any benefits specified as being available to women, such as pregnancy or maternity benefits, which are for pregnant women and mothers. Not pregnant people and parents. The Scottish Government accepted that pregnant men wouldn’t be entitled to maternity and pregnancy benefits and rights, but apparently thought this was a price worth paying to allow some fetishistic men access to women’s space.

The judges however, concluded that

Since as a matter of biology, only biological women can become pregnant, the [pregnancy and maternity] protection is necessarily restricted to biological women.

References to a woman who has become pregnant or who is breastfeeding “only make sense if sex has its biological meaning. These plain, unambiguous words can only be interpreted coherently as references to biological sex biological females and biological males.

They also pointed out that if biological women with a GRC were legally male,

they would be excluded from protection when pregnant, notwithstanding a continued capacity to become pregnant.

The Scottish Courts had suggested a way around this problem would be to give sex its biological meaning where necessary. The SC was having none of it – the judgment pointed out that (other than in very exceptional circumstances) a word must have the same meaning throughout a piece of legislation. The judgment said

By its nature a variable definition is neither clear, constant nor predictable. It is the opposite in fact. It is also contradicted by the single definition of sex that fixes its meaning in the EA.

People must be able to read a law and immediately understand what says. Using different meanings for the same word makes this impossible.

And finally, the Supreme Court addressed the question of sexual orientation – specifically the way in which the case affected lesbians. Yet again, the ruling demonstrated just how important the accurate meaning of words is. The EA defines sexual orientation as being an attraction to the opposite sex, the same sex, or either sex. So, the judgment said

a lesbian must be a female who is sexually oriented towards females…… This is coherent and understandable on a biological understanding of sex. On the other hand, if a GRC…. were to alter the meaning of sex, it would mean that a … (biological male) with a GRC (so legally female) who remains sexually oriented to other females would become a same sex attracted female, in other words, a lesbian.

The Court basically echoed what we had argued in the lesbian intervention, saying that such an interpretation would mean that

The concept of sexual orientation towards members of a particular sex…. is rendered meaningless.

Although the For Women Scotland case was about the meaning of woman, man and sex in the Equality Act, much of the discussion in the judgment seems to me to have a much wider application.  I strongly recommend you read it if you’re at all interested. It’s written to be very accessible, and is full of useful arguments.

I’ve only had time to highlight a few issues, but I think they illustrate why language is so important in a legal context, as well as in day to day life. There’s much more in the judgment which relates to the meaning of language. It is impossible to litigate – or even to communicate -  if there is not a common understanding of the meaning of words, and therefore the meaning of laws.

It’s essential that we keep that clarity in everything we say. The power of the transgenderist lobby has come from its ability to distort language. What you hear affects the way you think – if you constantly hear men being referred to by women’s names and pronouns, you come eventually to think of them as women. So we MUST always demand that language is consistent, unambiguous and above all, accurate.