Legal fiction has a long history. It is sometimes used to get around the provisions of constitutions and legal codes that legislators don’t actually want to get rid of or modify on a permanent basis.

There is the example of when a legislature has no legal power to sit beyond midnight on a particular day, but cannot complete the work in the time available. It is not unknown for a resolution to be passed ‘pausing’ the passage of time so that the day comes to an end some hours or even days after what would have been its natural conclusion. Obviously no-one would want time to be disrupted on a daily basis, but sometimes a legal fiction is very convenient.

In Rome in the olden days, where every family needed a male heir, the lack of one was overcome through the legal fiction of adoption by the paterfamilias. What it did not mean, however, was that the wife of the adopter became the adoptee’s mother.

And, in law, a limited company is regarded as being a person, distinct from its shareholders. It can enter into contracts. It can be negligent or act criminally, but the shareholders’ liability is limited to the amount payable for the shares held. It is not, however, regarded as a person for all purposes. It is not deemed to have parents, to be able to have children or need access to the NHS.

The trans debate which has been going on for so many years was based on a legal fiction. The trans community told us that gender recognition was an immutable right created by the Gender Recognition Act 2004, (the GRA). One’s adopted gender was an indisputable fact, although based on a legal fiction, one which set aside biology.

And it was this purported indisputability which is the reason why there has been so much ill-tempered ‘debate’. Although most of us are quite happy to see others dress and act as if of another gender, the difficulty arises when the trans community, or perhaps I should say pressure groups on their behalves take things too far.

Stonewall was a charity set up to campaign for rights for homosexuals. Having achieved success in that aim, it did not fold, but instead looked for another source of revenue so that it could continue in being.

And so it has for a number of years provided consultancy services designed to put pressure on businesses and public bodies to adopt a tendentious (and as we now find, unlawful) view of the rights of the trans community. And those organisations paid Stonewall for their services.

They promoted policies which take a sledge-hammer to the protected characteristics of, particularly, women. They said that men who identify as woman had the right to be regarded for all purposes as women, including entering safe spaces reserved for women.

The Supremes have now said otherwise.

For them the question was not political or sociological, but one of statutory interpretation. What do the statutes actually say? Section 9(1) of the GRA 2004 said that a person with a gender recognition certificate was entitled to be treated in law as having his or her acquired gender ‘for all purposes’ - the basis for the legal fiction.

Reading a little further, however, we see that section 9(3) of the GRA makes the absolute statement, ‘for all purposes’, not quite so watertight.

It is subject to any “provision made by this Act or any  other enactment or any subordinate legislation". And there is more than one statute to look at.

The lower court had decided that the full effect of the legal fiction would only be modified if a subsequent enactment expressly required a modification of the basic section 9(1) rule. The Equality Act 2010, (the EA) did not deal directly with the question and so apparently did not require a departure from the Section 9(1) rule.

The Supreme Court rejected this approach: statutory interpretation needed to provide a coherent approach to the meaning of words. They said that “sex”, “man” and “woman” in the EA 2010 have their biological meaning (and not a certificated sex meaning) because of the protections offered to woman by that Act relating to sex, pregnancy and maternity discrimination. The protections are “predicated on the fact of pregnancy or the fact of having given birth to a child and the taking of leave in consequence. Since as a matter of biology, only biological women can become pregnant, the protection is necessarily restricted to biological women.” And so to read the statues coherently, the words 'man' and 'woman' have to be given their biological meaning.

Which means that the acquired gender was not ‘for all purposes’. It would only be recognised if it did not conflict with other established protections for biological women or men.

So then the Supreme Court concluded that the supposed universal applicability of the recognition of someone’s gender was actually very limited. Many extremists say now that it is confined to administrative matters, such as the gender referred to on someone’s passport or birth certificate. But that is not right either.

The Supremes made it clear in their judgement that trans people have their own rights as a group. The idea of protected characteristics had been introduced under the Sex Discrimination Act 1975. The 1999 Gender Reassignment Regulations then introduced a new protected characteristic - ‘gender reassignment’. This protects ‘those who intend to undergo, are undergoing, or have  undergone a process of gender reassignment’. These regulations did not though alter the definitions  of man or woman in the Sex Discrimination Act. They simply introduced a new group of people entitled to claim that they had a protected characteristic.

And so as the Supreme Court pointed out, the correct interpretation of the EA as referring  to biological sex does not cause disadvantage to  trans people, whether or not they possess a  gender recognition certificate. Trans women (and men) have the rights which attach to the protected characteristic of gender reassignment, but not the protected rights provided for biological women or biological men. In addition, a trans woman can bring a claim alleging sex discrimination arising out of being perceived to be a woman or by her association with women.

And where are we now, a week after the judgement? Well we have some very happy (triumphant) ladies who brought or supported the case and have been vindicated in what one might think was a common sense view of life. In the letters section of the Times, under the heading ‘Court ruling on the definition of a woman’, Jo Phoenix, a Professor of Criminology now at Reading University, wrote:

“… as someone who was constructively dismissed by the Open University for asserting that men cannot be women. It beggars belief that so many organisations bought into the silly and solipsistic logic of Stonewall’s vision of transgender rights — that people who believe they can change sex are discriminated against or harassed if we reject their belief or if we say ‘No’ to allowing them into our single-sex spaces.”

Another, the now famous Kathleen Stock, who for similar views was hounded out of her post as Professor of philosophy at the University of Sussex in 2021, wrote simply: 

Sir, We told you so.

Which all leaves many gullible organisations having very quickly to adjust their policies on spaces exclusively for men or women. If they provide such spaces, then they have to make reasonable similar provision for trans people. The word ‘reasonable’ though is key: bearing in mind the tiny percentage of people who are in fact trans, it is difficult to see that much new building work or repartitioning of existing facilities will be required.

And what about the trans community itself? Well it’s difficult to say, but on Saturday there was a demonstration against the Court’s judgement by a largish group of trans people and their supporters. And the ladies who brought the cases are under vicious attack online by them.

However the government itself, having been tied up in knots for so many years trying to explain their wholly illogical position will, I suspect, accept the Court’s judgement with relief. They are even now saying: “it’s what we always thought’. Despite his earlier remarks about men being able to have a cervix, Sir Keir has today finally said that he welcomes the clarity introduced by the judgement. But then, they are politicians and so twist with the wind.