Woman.

What is in a word.

Next week the UK Supreme Court will hear the For Women Scotland appeal and then decide whether “woman” in the Equality Act includes a man with a full Gender Recognition Certificate, and what this will mean for the Scottish Gender Representation on Public Boards Act. It is the culmination of a long story played out in Scottish Courts. I do not need to rehash it and I do not intend to. It is not even my area of expertise, international law, and I rarely stray from it, though I will insist on giving it its proper place.

Someone told me once (one of those academic friends who all but disappeared when I became too inconveniently vocal about women’s rights) that a renowned legal theory professor in Scotland had said that I was a deep thinker. Maybe I am. I certainly do not like to stop at the surface of things, or to slavishly (unfortunately the beautiful Italian word pedissequamente, literally doing as the pedisequus, the servant who followed his master on foot, has no better translation in English) regurgitate all the case law on this topic. Given how language has been corrupted in the law, how can the cases shed any light?

We need to go back to first principles, to logic, and to human history. The image at the top of the page is of some fundamental Sumerian signs. Sumerian is one of the languages I studied. You will see that between 3000 BC and 2800 BC, roughly, all the sign underwent a 45 degrees turn, but it does not take much to guess what the sign for woman represented, whichever way one looks at it. Writing is a form of second level abstraction (the first one being, arguably, speech). The word woman, in all languages, has a stable meaning easily linked to the material reality of describing a human being of the female sex. Sex itself is etymologically uncertain, possibly connected to the Greek word τεκοs (tèkos), meaning generated, or conceived, from the verb τίκτω (tikto), meaning to conceive, with a shift from the letter T to the letter S; others connect it to the Latin root sec- of the verb secare, to cut or separate, clearly referring to the binary distinction between male and female. One needs to understand how language works (for example the shift between T and S is a know phenomenon in Indo-European languages) and how false etymologies can operate. However it is reasonably clear that either of these etymologies is a reasonable source of meaning for this word, which has been used consistently in all cultures for a very long time (of course every language will use different words with different etymologies, each influenced by the culture that produced them; see all the negative connotation of the word awrat in Arabic, used to denote woman and adopted by many other languages in Asia). I will not waste time trying to provide a linguistic pedigree for the term gender identity, the twentieth century invention of a disgraced sexologist which finds no direct translation in many languages, including Italian. As a matter of first and second level abstraction, the words sex, woman and female are uncontroversial, universally understood and easily intelligible by children and people without an education or with a very rudimental knowledge of the English language (as of any other language: the words for man and woman, boy and girl are some of the very first words one learns when studying a foreign language).

Law is a third level abstraction. In law, words can acquire a special meaning and this meaning needs to be spelled out in the act or treaty (language is a terrain of special contestation in treaties, where the parties may not share a language and when one or more languages will be authoritative). Clearly when a word is defined, the words used in the definition need to be used in their ordinary meaning, otherwise the definition will not be clear and unambiguous.

As an example, in s212 of the Equality Act, the words women and men are defined. These are important words, because one of the protected characteristics in the Act is sex, which is not in itself defined. It might seem unusual that these words are defined (for simplicity and because there is no open legal case on the meaning of the word man, I will consider only the definition of woman) as my argument is that the word woman is used in its ordinary meaning of human female, so to refer to sex and nothing else. The reason why the word woman is defined is because its meaning is extended to cover also minors, so that the word girl is not used but subsumed under the word woman. The fact the definition recites “a female of any age” points to the fact that by woman it is meant an individual of the female sex, not a male with a feminine gender, whatever that means.

The Gender Recognition Act introduced a category error in the law as I said several times. But this is nothing compared to the piling of error upon error by courts and legal scholars who really should know better. The invention of legal abominations such as legal sex and certificated sex should be consigned to the dustbin of bad legal scholarship without any attention wasted on it. To clarify: we all have a legal sex or a certificated sex; it is the sex which is recorded at birth in the register of births and birth certificates and IDs. All of us, including those who will grow up in the delusion that they can change their sex, and have that delusion recognised in law, have our sex registered at birth, and that registration never changes. We all have a “material” sex. As I noted, law is a third level abstraction, in which sex, man and woman are words with specific legal meanings. As I have said before (are you starting to get how tired I am of this insane debate?), it was women who fought for a hundred years and more, to erase the difference the law established between men and women, with men considered full human beings, capable of holding rights and duties, and women the defective lesser humans, sometimes worthy of protection, but never capable of holding full rights and duties in law. All the same, the law preserves some differential treatment when this is necessary to allow for the different female physiology to receive appropriate protection (including safeguarding against male sexual violence) and recognises, through discrimination and equality law, that women can be discriminated against and victimised on the basis of sex. None of this should be controversial.

The GRA introduced in UK law the possibility for men (and women, but as I said, I am focusing on men) to “acquire” a different gender compared to their birth sex. Gender is not defined in the GRA and indeed in UK law. It is defined in the Istanbul Convention of which the UK is a contracting party, and the effect of that definition in UK has not been explored yet. This acquired gender allows the individual male to be treated as if he were a woman in certain circumstances where sex is ascertained via birth certificate, it being the case that a man with a GRC can obtain a birth certificate with a female sex marker. So the GRA does not change the sex of the person, and least of all it transforms him into a female indistinguishable from an actual woman, if nothing else because there are no requirements as to medical or surgical transition in order to obtain a GRC. The law, which is a third level abstraction, created the legal status of woman which is normally accessible upon birth to all females. Some males can obtain a reduced and limited legal status as women (which is NOT a legal sex) in certain circumstances, typically and historically for the purpose of allowing same sex marriage and a different pensionable age than that typical of their sex.

Outwith the system established by the GRA stands the Equality Act. Nothing in the EqA points to the definition of sex and woman to be modified by the GRA, again as I have noted repeatedly. If the drafters of the GRA and the current interpreters of the law had present in mind the rights of women we would not be here debating this insanity. Let’s just hope that the judges on the UK Supreme Court have not taken leave of their senses.