Scottish Lesbians at the Supreme Court

Scottish Lesbians, along with The Lesbian Project and LGB Alliance, submitted a written intervention to the For Women Scotland appeal heard at the UK Supreme Court on 26 and 27 November 2024. You can see resources for the case, including links to watch the recorded proceedings online, on the FWS website. Our submission can be found here and we are very grateful to its authors, barristers Karon Monaghan KC and Beth Grossman, as well as our solicitor, Peter Daly. Our legal team worked pro bono on our intervention, enabling the lesbian submission to be made. We’re writing here about our response to one important point made by the Scottish Government’s barrister, Ruth Crawford KC.

On Wednesday, we watched as Ms Crawford, representing the Scottish Ministers, attempted to negate all recognition of same-sex sexual orientation by arguing that heterosexual men become lesbians on acquisition of a Gender Recognition Certificate. Notwithstanding that our own intervention in the case states quite clearly that lesbians are not attracted to certificates, Ms Crawford suggested that such a transition shouldn’t be a problem for lesbians; we can simply refuse to date these men, in the same way that we may reject a woman on the basis of her personality or differing political opinions. She even, in a truly surreal sequence, appeared to be offering reassurance that we would continue to be lesbians despite our lack of attraction to men with certificates.

…a woman whose sex is recorded at birth, who is sexually orientated towards other women, whose sex is recorded as such at birth, becomes no less attracted to persons of the same sex, to women, because some in that class may be persons who have become women in consequence of a GRC.

For lesbian groups like ours, the Scottish Government’s position was laid bare. Should they prevail, we would cease to have our right of association as lesbians (and, indeed, our very sexuality) protected. Instead, we would need to scramble to find a different type of protection if we want to continue as a lesbian association. Ms Crawford proposed a solution using a different protected characteristic: that lesbian groups like ours could continue to operate, not on the basis of our shared sexual orientation, but on the protected philosophical belief of being gender critical. That is to say; we couldn’t be a lesbian association, but we could be a ‘gender critical lesbian association’.

Scottish Lesbians, for example, hold to the philosophical belief that sex is immutable. They would be entitled to exclude on that basis…

Gender critical beliefs are, of course, only recognised as protected beliefs thanks to the tenacity of Maya Forstater of Sex Matters.

From an operational point of view, what would it look like to run a ‘gender critical lesbian association’? Spotting a man in a group of women is easy; detecting someone’s internal belief system less so. In Scottish Lesbians we ensure we get to know lesbians who want to join us, for the safety and security of our group due to our potential to be targeted by men’s rights activists. We reject any thought of such screening for safety and security becoming a normalised part of running a lesbian group. And, of course, becoming a belief-based group hands a very simple road map to a male GRC holder wanting to access lesbian spaces; he needs only to say that he is a gender critical lesbian.

Lord Reed, in summing up this part of the Scottish Government’s case, identified a further problem:

…if I’m following what you’re saying, a transwoman [man, with a GRC] who is attracted to women is to be treated as a lesbian and can’t be excluded from a lesbian association unless they espouse a particular political doctrine. On the other hand, a transwoman [man] who doesn’t have a certificate and is attracted to women is to be treated on your submission as a heterosexual man. So the difference between them is pretty stark. And the only way the association can tell which category a person belongs to is by knowing whether they have a certificate, and that’s something that they can’t ask.

Ms Crawford denied that this catch 22 situation, where we can exclude a man without a GRC but not a man with one, and it’s against the law to ask that man if he has such a certificate, would have a chilling effect on lesbian groups. Apparently we can ask instead for a birth certificate, which those men with a GRC can change to show their birth sex as female. This back door method of ascertaining someone’s GRC status would seem to suggest that Ms Crawford is well aware that those men with GRCs are easily identifiable as men, regardless of what their birth certificate says.

We also object to the idea that only lesbians with a particular set of beliefs deserve to have their lesbian groups protected. What of lesbians who wouldn’t define themselves as gender critical, or aren’t immersed in the politics of the day, but prefer lesbian only spaces? What of the young lesbians whose first experiences of the dating world expose them to men saying they are lesbians, and whose college or workplace LGBT+ associations tell them they’re bigots if they won’t accept those men as partners? How do these women make their first steps towards joining a truly lesbian group, if the requirement is to turn up with a fully fledged set of gender critical beliefs in order to be admitted?

The case put forward by the Scottish Ministers opens up a conversation that we’ve been thinking about for some time. We’ve met and learned from many gender critical and feminist lesbians on our journey so far, but our campaigning has never been aimed at improving things for a select group of lesbians and leaving others to cope with having men in their spaces. Lesbians are same-sex attracted women; it’s the one characteristic that unites us. We won’t settle for anything other than protection on the grounds of our sexual orientation. Lesbians deserve our own spaces, associations, community and culture, whatever our political beliefs and however we choose to express them.