Reflections on For Women Scotland v Scottish Government from the point of view of a successful claimant

I try to be optimistic. I don’t like raining on other people’s parade. Yet, there was something about the For Women Scotland v Scottish Government that got me thinking about our current struggle for workplace rights and justice for women in the 21^st century and left me with a heavy feeling.

So much has already been written about the deliberations in the Supreme Court on 26^th and 27^th November 2024 that I won’t add to the analysis – see Hannah Barnes especially. My reflection here is driven by my experience of sitting in that court listening, not just as an academic or as a lesbian but as one of the early claimants in the employment tribunal for harassment, bullying or constructive dismissal on grounds of GC/sex realist belief discrimination.

‘The Claimants’ crimes

Before I make my reflection though, let’s remember what each of us said or did that prompted our colleagues to harass or discriminate.

1. Forstater referred to a panel of two men and a male who occasionally identifies as a woman as a manel (all male panel).

2. “Maria” asked for evidence of JK Rowling’s supposed transphobia on a Oxfam staff intranet.

3. Bailey strongly objected to her chambers having any formal association with Stonewall, claiming that Stonewall has been “complicit in supporting a campaign of harassment, intimidation and threats made to anyone who questions its trans self-ID ideology”.

4. Fahmy raised concerns about Arts Councils links with Stonewall and Stonewall’s promotion of self-identity, noting attacks against the organisation LGB Alliance and then challenged when a colleague characterised LGB Alliance as an anti-trans group in an open meeting.

5. Ruth tweeted “I do believe that people should be allowed to wear what they want etc., etc… But what blows my mind is the idea that with a heavy five o’clock shadow, a perm and lippy and a bag with gold chains = woman. While us boring biological women get derided if we have one or two faint chin hairs.”

6. Meade made comments on her private facebook page that supported sex-based rights.

7. Esses raised questions about whether gender affirmative medicine and care was appropriate in relation to safeguarding therapy for children with gender dysphoria.

8. Phoenix said that trans women are not women, later that male bodied people do not get pregnant, challenged Stonewall’s ‘no debate policy’ and its impact on universities and set up a gender critical research network.

9. Adams asked questions about how to deal with a service user asking questions about the sex of her support worker.

10. Pitt challenged the idea of a ‘gender-fluid dog’ in an staff LBGTQI network and disagreed with the inclusion of males who identify as women in women’s sports or female-only spaces.

And our lives were derailed for making these statements.

Sitting in the Supreme Court

As I listened to the KCs for For Women Scotland, Sex Matters and EHRC, I thought, well yes. They were saying pretty much the same things we claimants had said (sometimes even almost word for word). They were expressing the same arguments we claimants made.

Yet no Supreme Court judge or member of the gallery stood up, pointed and yelled “TRANSPHOBE! We are unsafe. You are creating a hostile climate for trans and gender non-binary people. Something must be done to stop you saying these bigoted things!” To my knowledge, no grievances were submitted. No shadowy investigation conducted and as far as I am aware, no one from any of the legal teams are about to be disciplined or sacked for doing their jobs last week.

My point?

Yes the Supreme Court was a surreal experience but what happened there does not reflect the everyday realities for many sex realists/gender critical people who are dealing, daily, with the malign impact of a dominant gender identity affirmative workplace culture. For it is in the nature of a gender identity affirmative workplace culture that expressing the idea that sex is different than gender identity is still considered akin to Naziism, transphobia, hostile to trans people or some other crime of high treason in a progressive world.

When O’Neill finished his barnstorming closing comments for For Women Scotland, the woman in front turned around and looked at me. She had tears in her eyes. I know why. O’Neill gave voice in the highest court of the land to what so many of us have been saying for so long: trans rights do not trump women’s rights and women’s rights are human rights.

Yet only hours before I had a text message from a friend who said that she had received her first vexatious complaint at work after she expressed, in a perfectly ordinary way, the idea that sex is one category and gender identity another. The previous day I was texting with a different woman who had just submitted a claim against her employer after she was subjected to a disciplinary process for making comments indicative of supporting campaigns to protect sex-based rights on her private social media account. And yet another woman and I were whatsapping about the progress of her own case.

These texts made me think about the gap that exists between the very important legal proceedings playing out in the Supreme Court and the ongoing injustice women experience in the workplace.

Don’t get me wrong. The FWS v Scottish Government case is extremely important. If we win, the victory will be profound and will have a direct impact on the daily lives of women accessing services and on lesbians who want to have lesbian only space.

But, let’s not get carried away. The mess we are in is not one that will disappear overnight if the judgment goes our way because the mess we are in is far bigger than the law.

We need the culture in our organisations and workplaces to change. We need managers, leaders, politicians to tackle the discrimination and bullying of (mostly) women that has grown and spread like a cancer across almost every employment sector. That this has been done in the name of progress and inclusion is as grotesque as it is a perversion of language.

So yes, like everyone else in the room I felt like scoffing out loud at the absurdity of the Scottish Government’s KC using the Forstater ruling to turn my rights, as a same sex attracted lesbian, from being protected on grounds of sexual orientation to being protected on belief grounds. I was moved to tears by Aiden O’Neill KC’s fabulous lecture about how being a woman means being a person with a legal disability in his opening submissions. He was giving voice to arguments we feminists have been making for many decades. I too was quietly saying ‘yes, yes, yes’ when Ben Cooper addressed head on the question about whether a male with a GRC was a woman and he said no.

It felt like history was being made.

Hopes and Realities

I hope we win. But I fear that there still exists a large contingent of people who see sex realists / gender critical fellow employees as nothing more than jack-booted, racist, trans genocidal maniacs giving voice to a ‘first world’ delusion that sex is binary. After all, from the evidence to date, they give not even one fig about the actual law.

Most of all I hope the FWS judgment will wake up the HR departments up and down the country so that fewer women lose their livelihoods for speaking up for women’s rights.

NB: With thanks to © Marjorie Brunet Plaza for the image used.