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“Court riseGRCFWSGRC GRCKCFWSFWS Your browser does not support the element..” A hush falls in the Supreme Court. Five judges—three lords, two ladies, roughly two centuries of accumulated professional experience—walk in. The question that the country’s highest court and finest legal minds have come to consider, in a two-day hearing that took place on November 26th and 27th, is: what is a woman? Finally, an answer looms for those who wonder what those 34m people in Britain who are not men might be.Inside the Supreme Court, with its supremely institutional grandeur (portraits, panelled walls, truly tasteless carpets), there is talk of cervixes and men who are women and women who are men. There is talk of “women” who have penises and of pregnant “men”. The word “prostate” is used. It is strong stuff for a Tuesday. Britain’s finest legal minds sound a little confused. This, says one, is “quite difficult”.Sex in Britain was once quite simple. The Oxford English Dictionary stated, with Hemingwayesque brevity, that a woman is an “adult human female”—and more or less all Britons agreed. Then came the rise of trans rights and the mantra that “trans women are women”. This case came about because the Scottish authorities have stated that when the Equality Act 2010 says “woman” this means not just “woman” but also any man with a full gender recognition certificate (). A group called For Women Scotland () cried “bunkum” and went to court. That it has reached the Supreme Court makes this, says Michael Foran, a lecturer in law at Glasgow University, a “monumental case”.Britain’s legal system has tackled the question of what a woman might be before. Not always to its credit: in a 1914 case it concluded that a woman is not a “person”. It has also considered how someone might become a woman. In a 1970 case a British judge ruled that four factors (chromosomes, gonads, genitals and “psychological factors”) make someone a woman—but that a “sex-change” operation did not. Many who underwent one signed a document stating that they understood that it would “not alter my male sex”.In 2004 the was introduced in Britain. This government document can be acquired by obtaining a diagnosis of gender dysphoria, jumping through some legal hoops and paying £5 ($6.30). It changes a person’s legal sex for such things as birth, death and marriage certificates. It made it possible for a man, with full male genitalia, legally to become a woman, and vice versa.Such transubstantiation sounds odd but is not unprecedented. The law allows for “legal fictions”. It calls a company a “person” (when clearly it is not) and states that “the King never dies” (when kingly corpses in Westminster Abbey amply prove otherwise). But these should be understood as a judicial sleight of hand (which the law is good at) and not as metaphysical mastery (which it is not).Supporters of the say that it helps alleviate the undoubted pain of gender dysphoria. Critics say that it spreads confusion, and sometimes worse; in one case a trans woman (a biological male) was made the head of a rape-crisis centre. No one, tellingly, is that interested in the question of “what is a man?”. Since women are underrepresented among murderers (7%), assaulters (a fifth) and sexual assaulters (2%), women who transition are rarely considered a threat.To have a certificate that transforms a man into a woman is, says Naomi Cunningham, the chair of Sex Matters, a human-rights charity, “as stupid as…[giving someone] a certificate to say that they are dead when they are alive or that they are alive when they are dead”. Unshackle the meaning of words such as “man” and “woman” from biology, said Aidan O’Neill , acting for , and it results in “absurd” and “nonsensical outcomes”.There was a bit of this absurdity in the Supreme Court. Is there, asked one judge, a “third gender”? The court tittered. The barrister speaking demurred: there is not a third gender. And, as argues, there are also just two sexes: male and female. The lords and ladies of the Supreme Court will give their ruling in a few months’ time. And it will matter.
