In praise of the lesbian interveners

How the LGB Alliance, Scottish Lesbians and the Lesbian Project defended gay rights in the Supreme Court

There’s something of a dubious historical legend that the 1885 Criminal Law amendment Act only criminalised gross indecency between men and not women because Queen Victoria flat out refused to believe lesbians even existed. Whether that old story is true or not, the lesbians interveners at the Supreme Court in For Women Scotland v The Scottish Ministers could be forgiven for already feeling similarly forgotten and erased as various powerful bodies, from blue chip banks on the right to trade unions on the left fall over themselves to express concern over the ruling and express solidarity with the opponents of the lesbian interveners. This will come as no surprise at all to anyone suffering the slings and arrows of the gender wars and particularly lesbians who have so often borne the brunt of an all out assault on homosexual rights. From the “cotton ceiling” to Nancy Kelley describing them as “sexual racists” to incursions by men to their speed dating events, lesbians have been the canary in the coal mine for gay rights and so it is perhaps elegant that it was the lesbian interveners in the Supreme Court who struck such a decisive defensive blow.

A “meaningless” end for the same sex orientation protected characteristic

Allow me to explain what gay rights would have looked like had For Women Scotland lost their appeal. In the first place, the protected characteristic of same sex orientation would no longer exist as we understand it. Instead of simply meaning homosexual orientation, homosexuality would be downgraded as simply one form of the Same Sex Orientation Protected Characteristic and it would sit alongside a theoretical class of people who the Scottish Government believe are attracted to confidential government issues certificates. That is how high the stakes were in this appeal. The prospectus of the Scottish Government was nothing less than the annihilation of same sex orientation in law. As the eminent Dr Michael Foran has previously commented on this matter, this would transform gay and lesbian anti discrimination cases. It would mean the body of case law that said that lesbians and gay men are attracted to the same biological sex was wrong and cases of direct discrimination would become indirect discrimination.

I pause at this point to say something about the audacity and cruelty of the Scottish Government. They sought to fundamentally redraw a Protected Characteristic against the wishes of the people with that Protected Characteristic. I can think of no other minority where this would be regarded as acceptable, and I can think of no better expression of modern visceral homophobia that they were allowed to do so, and even cheered on in their efforts. To legally annihilate homosexuality is one thing. To do so posing as enlightened and daubing yourself in our modern corrupted rainbow seems to me a mix of madness and imperialism. The position of the Scottish Government was that they were content to redefine homosexuality like colonial masters telling their inferiors their new ways in their new complex language. On that subject of complexity, the Scottish Government’s approach to sexuality was so complex it needed a flow chart, such is the madness of defining human attractions as love by certificate:

(Flowchart by the brilliant Sex Matters)

Mercifully, the Supreme Court dispatched this homophobic charter for legal chaos in pretty short order finding that the approach of the Scottish Government would render the Same Sex Orientation Protected Characteristic “meaningless” at paragraph 206:

[206] Accordingly, a person with same sex orientation as a lesbian must be a female who is sexually oriented towards (or attracted to) females, and lesbians as a group are females who share the characteristic of being sexually oriented to females. This is coherent and understandable on a biological understanding of sex. On the other hand, if a GRC under section 9(1) of the GRA 2004 were to alter the meaning of sex under the EA 2010, it would mean that a trans woman (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 concept of sexual orientation towards members of a particular sex in section 12 is rendered meaningless.

Make no mistake about all this. Had the Scottish Government won, the very protected characteristic that is the cornerstone of gay rights would have been rendered “meaningless”. It is only thanks to For Women Scotland, Scottish Lesbians, The Lesbian Project and LGB Alliance and Sex Matters that it was not.

Single sex associations in a gay rights context

Where Gender Identity becomes embedded in law, soon it becomes unlawful for homosexuals to have single sex association rights. This is precisely what happened in Australia as a direct result of an amendment to the 1984 Federal Sex Discrimination Act replacing sex with gender identity (as anyone following the Lesbian Action Group litigation will know). It nearly happened here and it nearly happened at the behest of the Scottish Government. Allow to me explain why.

Part 7 of the 2010 Equality Act regulates associations. In summary, it says that where an association has more than 25 members it can regulate membership according to persons sharing a protected characteristic. So what happens if the protected characteristic changes and sub divides into women and men with confidential government issued certificates that say they are women? Well, what happens is what happened in Australia. A complete end to the gay right to form a single sex association and civil liability for any organisation that does not comply. This civil liability can be a serious matter. It could result in injunctions, it could result in long, exhausting court cases, it could result in serious damages and costs awarded.

The net effect would be to expose any homosexual single sex association to the meat grinder of litigation, and a chilling effect dissuading any sensible lesbian or gay man from ever setting up anything just for us ranging from a book club, hiking association all the way through to a trauma informed theraputic group or political activist group. The gay right of association, the lynchpin of social bonds, shared experiences and shared struggles among people who are just like you would have vanished.

The case for woman only spaces is often put on the basis that women have a right to privacy, dignity and security. The case for homosexual single sex spaces can perhaps be put in even starker terms. Our lives are defined somewhat by our same sex attractions. Our path to happiness is in our same sex orientation. Our gatherings and associations are not just easy social happenings, they are rare opportunities to be with people just like us. Just about every lesbian or gay man remembers their first time in a gay bar. The decompression. The absence of loneliness. The exhalation and realisation “there are people just like me”. The shared experiences and conversations. The absence of guarding your language by saying partner when you mean same sex girlfriend or boyfriend.

Our association rights matter profoundly. It is a tragedy and a white knuckle ride I never wish to repeat to have come to close to losing them in law at the hands of a Scottish Government that pretends kindness and “inclusion”. That kindness and inclusion does not extend to homosexuals or our fundamental rights. That they were even up for debate shows the real structural and cultural weakness of what passes for the modern gay rights movement.

A fair judgment on associations that protects everyone

It is worth pointing out that people are perfectly free to operate associations including men and women. This is their right. If a gay rights group wants to admit membership to persons of the opposite sex with or without a GRC this is perfectly lawful. No one loses rights with this judgment. All we have lost is the threat that mostly lesbian associations would face litigation for taking another course on membership, one they are now thankfully lawfully permitted to take. This is of a piece with the fact this judgment has done nothing to weaken or roll back the gender reassignment protected characteristic. It has done no such thing, nor could it.

While it is politically expedient for some to whip up fear and speak in hyperbolic terms as to the effect of this judgment, they ultimately only fail the constituencies they claim to serve with comments that are less than truthful about where we are legally. The addiction of gender ideologues to keeping their foot soldiers in fear is an unedifying characteristic of a movement not used to hearing “no”. I urge them to desist. No one is served by inflated silly statistics about exorcisms, bogus hate crime figures or outright misrepresentations of the law. It is not fair to keep people in fear and it is not right to deliberately sow discord when the effect of this judgment is to offer such profound protection for gay rights.

In praise of the lesbian interveners

I end by paying particular tribute to the lesbian interveners in this case and to their legal team (who worked for free), solicitor Peter Daly and eminent King’s Counsel Karon Monaghan KC leading the brilliant junior Beth Grossman. The voices of homosexuals, and lesbians in particular, are too often discounted and forgotten in the utopian march for “progress”. I regret that Unions and Banks offer them no solidarity. I regret that MPs don’t seem to think that gay rights matter very much. They probably don’t to them.

But they matter to me as a gay man and, not for the first time, I look to the hardworking, tough as nails grit and determination of the lesbians interveners and I say thank you. Thank you for defending fundamental gay rights. Thank you for safeguarding our protected characteristic and our association rights.

Post script

I add only this, I am indebted to Dr Foran’s forensic and scholarly analysis of the judgment which I very much recommend.