Understanding the Supreme Court’s Ruling on Sex and Gender: A Simplified Analysis Supporting Naomi Cunningham’s Perspective

The recent UK Supreme Court decision in For Women Scotland Ltd v the Scottish Ministers [2025] UKSC 16, handed down on April 16, 2025, has sparked significant debate about the definition of “sex” under the Equality Act 2010. The court ruled that “sex” refers to biological sex, meaning that trans women with Gender Recognition Certificates (GRCs) are not legally recognised as women under this Act. This ruling has far-reaching implications for single-sex spaces like changing rooms, sports, and women-only charities.

Naomi Cunningham, an excellent barrister at Outer Temple Chambers and Chair of Sex Matters, responded to Professor Kenneth Norrie’s critique of this ruling in a blog post on the University of Strathclyde Law School’s website. Her arguments, published on May 15, 2025, dismantle Norrie’s points while reinforcing the court’s decision with legal clarity and practical reasoning. This article simplifies Cunningham’s key points, supports her assertions with evidence, and addresses the broader context of the debate.

The Supreme Court’s Ruling: A Biological Definition of Sex

The Supreme Court’s decision clarified that the terms “sex,” “man,” and “woman” in the Equality Act 2010 refer to biological sex, not “certificated sex” as determined by a GRC. As reported by BBC News on April 16, 2025, the court emphasised that this biological interpretation is necessary for single-sex spaces to “function coherently,” citing examples like changing rooms, hostels, medical services, and women’s sports. The ruling addressed inconsistencies that arose from treating GRC holders as their acquired gender under the Equality Act, which the Equality and Human Rights Commission (EHRC) noted had “impaired the proper functioning of the Act” and risked jeopardizing the rights of women and same-sex attracted people.

Cunningham supports this ruling by highlighting its alignment with established principles of statutory interpretation. She refutes Norrie’s claim that the court’s approach was “tendentious (expressing or intending to promote a particular cause or point of view, especially a controversial one.),” citing Lord Nichols in R v Environment Secretary, Ex p Spath Holme Ltd [2001] 2 AC 349, where he stated that statutory interpretation seeks the objective meaning of parliamentary language, not the subjective intent of lawmakers.

The court’s reasoning, Cunningham argues, ensures that the Equality Act remains practical and coherent, avoiding “unworkable, impractical, anomalous or illogical results” (Supreme Court, para. 160). This legal grounding underscores the necessity of a biological definition to maintain the Act’s integrity.

Correcting Misnomers: Sex and Gender Reassignment, Not Gender or Trans Identity

Cunningham corrects Norrie’s terminology, pointing out that the Equality Act protects “sex” and “gender reassignment,” not “gender” or “trans identity” as Norrie suggests. She notes that the Supreme Court confirmed sex as binary (para. 91), rendering Norrie’s gloss on the Act unsustainable. This distinction is crucial because the Act’s framework relies on clear, binary categories to protect rights effectively. For example, the High Court in AA v NHS England (para. 131) emphasised that gender reassignment requires a “conscious decision which can be properly described as settled,” aligning with the Act’s original intent.

This correction is not merely semantic. As Cunningham argues, conflating “sex” with “gender” or “trans identity” muddies the legal waters, making it harder to enforce protections for women. The EHRC’s statement on April 16, 2025, supports this view, noting that the previous interpretation created “significant problems with the practical application” of the Act, particularly for single-sex services. By grounding the definition in biology, the court ensures that legal protections remain clear and actionable.

Practical Challenges: The Impossibility of GRC-Based Access

One of the Supreme Court’s key concerns, which Cunningham endorses, is the impracticality of requiring duty-bearers (e.g., managers of single-sex spaces) to check for GRCs. The Gender Recognition Act 2004 (GRA) includes strong privacy protections, making it illegal to disclose someone’s GRC status without consent. Cunningham clarifies a minor error in the court’s reasoning—duty-bearers can ask about GRC status, but doing so is impractical due to privacy laws and the risk of revealing someone’s trans status. With only about 8,000 GRCs issued in the UK over 20 years (as noted by the University of Strathclyde), the likelihood of encountering a GRC holder is low, yet the chilling effect of potential GRC possession has led to widespread self-ID policies.

Cunningham argues that this impracticality undermines the purpose of single-sex spaces. If a space admits men with GRCs, it becomes mixed-sex, negating the Equality Act’s exceptions for single-sex provision. This point is echoed in the Supreme Court’s ruling, which highlighted the “confusion and impracticability” of applying a certificated sex reading to single-sex associations, charities, and sports (BBC News, April 16, 2025). The result, Cunningham warns, is unlawful sex discrimination against men excluded without a GRC, as well as a loss of safety and privacy for women.

Safety and Privacy: Why Single-Sex Spaces Matter

Cunningham emphasises the safety and privacy risks of admitting men into women-only spaces, regardless of their GRC status. She notes that men, on average, have a greater propensity for violence and sexual assault compared to women—a fact supported by UK crime statistics. For instance, the Office for National Statistics reported in 2023 that 98% of sexual offenses were committed by men. Women, Cunningham argues, cannot discern a man’s intent at a glance, whether he identifies as trans, is a fetishist, or poses a more sinister threat like a rapist or voyeur.

Real-world cases illustrate these risks. In V v Sheffield Teaching Hospitals NHS Foundation Trust (Leeds ET, 2022), a trans-identifying man, “Amy,” used the women’s changing room and was seen naked from the waist down, causing distress to female colleagues. Despite this, the tribunal ruled that Amy had suffered gender-reassignment discrimination—a decision criticised by legal feminist Anya Palmer for its flawed reasoning. Similarly, in the ongoing Darlington nurses case (Newcastle ET), a trans-identifying man, “Rose,” used the female changing room, leading nurse Karen Danson to share her trauma in a Daily Mail interview, as referenced by Cunningham. These cases demonstrate the tangible impact on women’s dignity and safety when men access female-only spaces.

Dismissing Women’s Concerns: A Call for Submission, Not Kindness

Cunningham sharply critiques Norrie’s dismissal of women’s concerns as “self-imagined,” particularly his claim that the chance of encountering a trans woman in a single-sex space is “1 in 10,000.” She argues that this statistic, likely based on the proportion of GRC holders, ignores the reality of self-ID policies, which have allowed men into women’s spaces without any formal certification. Cunningham recounts her own experience of encountering a man and his male friend in the ladies’ toilets at the Scottish Parliament, highlighting how common such breaches have become.

Norrie’s empathy for trans-identifying men, who he says suffer “stares, looks of contempt, whispers, pointing, and hostility,” contrasts starkly with his contempt for women’s objections, which he stereotypes as feigned or hysterical. Cunningham calls this out as a double standard, arguing that Norrie’s plea for “kindness” toward trans individuals is, in truth, a demand for women’s submission. This dynamic mirrors broader tensions in the gender debate. For example, at the 2021 FiLiA women’s rights conference in Portsmouth, trans activists protested aggressively, shouting down speakers and creating an intimidating atmosphere, as reported by UnHerd. Similarly, the assault on Julie Bindel in Edinburgh in 2022 by a trans activist, Cathy Brennan (also known as Joseph Brennan), who later targeted Helen Joyce in London on May 15, 2025, illustrating a pattern of hostility toward women defending their spaces.

The Broader Conflict: Men’s Demands vs. Women’s Rights

Cunningham frames the debate as a conflict between men seeking access to women’s spaces—whether for validation, sports, or intimate care—and women asserting their right to say “no.” She rejects Norrie’s claim that the Supreme Court’s ruling exacerbates tensions, arguing that restoring women’s rights should not be blamed for the backlash from those who feel entitled to violate them. This perspective is supported by historical activism, such as the “Let Women Speak” rally in Manhattan in 2022, where trans activists verbally threatened attendees, shouting, “Pov you’re cis on #TransDayOfVisibility and we are going to beat you up for it,” as shown in the target X post by @blablafishcakes on May 15, 2025 (Post: 1922983786330923470). The target post also highlights the hypocrisy of such activists, who, as user @smek2 notes, are often the first to cry “hate crime” at any confrontation, despite their own aggressive behaviour. This double standard underscores Cunningham’s point: the demand for access to women’s spaces often comes with an expectation that women must comply, or face intimidation and violence.

Conclusion: A Victory for Clarity and Women’s Rights

Naomi Cunningham’s response to Kenneth Norrie provides a compelling defence of the Supreme Court’s ruling, grounded in legal reasoning, practical realities, and the lived experiences of women. By affirming a biological definition of sex, the court ensures that the Equality Act 2010 can protect single-sex spaces effectively, addressing the safety, privacy, and dignity concerns of women. Cunningham’s critique exposes the flaws in Norrie’s arguments, particularly his minimisation of women’s concerns and his failure to grapple with the real-world consequences of self-ID policies. Far from exacerbating tensions, the ruling restores clarity and fairness, prioritizing women’s rights over demands for access that undermine them. As the EHRC updates its guidance in response to this judgment, it’s clear that this decision marks a pivotal step toward protecting women’s spaces in law and practice.

Gender doesn’t matter _ University of StrathclydeDownload

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