The Supreme Court Ruling is Philosophically Illiterate and Impractical

The Supreme Court ruling that by ‘woman’, the Equalities Act means a biological woman has been condemned by the BMA and others as scientifically illiterate. I want to add that it is also philosophically illiterate, as well as impractical. There is no accepted sense of ‘biological woman’ that can be practically applied.

There are usually three thoughts people have in mind when they think there is such a thing as a ‘biological’ woman. Let us look at these in turn.

Some people think that being a ‘biological’ woman consists in having XX chromosomes, whereas men have XY chromosomes. As is well-established, there are many people who have variations outside the binary of XX and XY. However, a bigger problem with this is that hardly anyone knows what chromosomes they have. Very few people are ever tested. And if they were tested, they might not get the outcome they expect. This means that, by these lights, almost no one can prove that they are a ‘real’, ‘biological’ woman – in a bathroom setting, for instance – since they have never been tested and have no proof available. I suspect not even leading transphobes can prove their sex, on these grounds. Not even Bridget Phillipson, current Women’s and Equalities Minister can prove she is a really woman, by this criterion. Not even Kemi Badenoch. A student pointed out to me that also, by this account, we cannot know the sex of any historical figures, since they were not sex-tested in this way. We cannot know that Margaret Thatcher was a woman, or Queen Victoria, or Boudica, or Joan of Arc. We cannot know that Winston Churchill was a man. To anyone who believes that your sex consists in facts about chromosomes, we should refuse to gender anyone from the past; and anyone who has remained untested.

Something else people have in mind might seem even simpler and ‘common sense’. A man has a penis and a woman has a vagina. Again, this ignores the fact that many people do not fit a simple binary, such as people who are intersex. But let us pretend that is not an issue. It is, however, worth noting that this account is inconsistent with the above, chromosome account, so you cannot abide by both theories at the same time. There is an XX Male Syndrome, meaning that some people are XX but also have a penis. So let us consider this second, genitals-based account of being a ‘biological’ woman on its own. If this is what being a woman or man consists in, we are left again with the problem that no one is practically in a position to prove what they are. If someone asks you to prove that you have a vagina or penis, in most contexts this would constitute sexual harassment, and if we were legally mandated to show our genitals, this would almost certainly constitute a Human Rights violation. Furthermore, if someone were to voluntarily show you their vagina or penis, such as in a bathroom setting, this would almost certainly constitute a sexual offence and put them on the sex-offenders register. Again, by this account of what a ‘biological’ woman is, no one is in a practical position to prove that they are one.

A third account is that a ‘biological’ woman is someone who can give birth. By this account, there might be some people who can prove they are a ‘biological’ woman, by giving birth. What is less clear is whether you are a ‘biological’ woman by having given birth in the past since it is not easy to prove having done so. In most cases, I’d just have to take someone’s word that they had birthed a child. But an even bigger issue is that many women have not yet given birth, cannot give birth or choose not to do so. So this remains a problematic account, although it wouldn’t surprise me if many far-right transphobes would indeed agree that you are not a ‘real’ woman unless you have given birth.

What these problems show is that the Supreme Court’s attempt to define a woman is philosophically illiterate. The Supreme Court can no more define what a woman is than it can determine that knowledge is justified true belief or that the good is that which procures the greatest happiness of the greatest number. These are philosophical questions and the discussion cannot be closed by a legal ruling. Of course, the Supreme Court may have a political power to decide a legal definition, but let us be clear that in doing so they are only asserting a legal and political power, and that does nothing to settle a philosophical question. It is also philosophically muddled to take ‘What is a woman?’ as a question to be determined solely by science or biology. What the discussion is really about is our values and choices. That someone is or is not a woman is determined by our moral preferences rather than any objective fact. British politics may now be in a period of excluding many people from being women who identify as such and, in my view, this only reflects badly on the moral compass of contemporary Britain. ‘What is a woman?’ is a moral rather than factual question and the Supreme Court ruling is imposing a moral view under the guise of a factual matter.