The Supreme Court ruling on sex proves the peril of self-satisfied moral hubris in Parliament

Telegraph

18-04-2025

Theresa May told the Cabinet 'in breathy vicars-daughter tones' that Penny Mordaunt 'had something very important to tell us.'
Mordaunt, then Equalities Minister, then 'began a long disquisition about gender recognition…I didn't catch all the details, but it seemed fairly harrowing stuff, and at one point I heard Penny claim: 'This is the most important issue of our times'.'
'I mean: I could see that this was an issue of huge importance to some people (though surely not that many?) and I could see that it needed to be handled with tact and sensitivity. But 'the most important issue of our times'? Really?'
The author was Boris Johnson, writing in Unleashed, his memoir – and showing the mix of wryness, common sense, cunning, human sympathy and proportion which, at his best, mark him out.
He was sketching the beginning of an outlandish period in political history, which this week's judgement by the Supreme Court has surely brought to an end.
Its unanimous decision that 'the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex' is nothing less than civilisational – though, at the same time, disconcerting.
This is so not because of the ruling's content, but its context. Why was it necessary for For Women Scotland to go to court at all, claiming that sex-based protections in Scotland should only apply to people that are born female? Surely this matter ought to have been clarified by Government rather than through the exertions of a group of tenacious campaigners?
The answer is that the Labour Government ducked its responsibility for clearing the matter up – by presenting legislation to clarify that sex in the Equality Act means biological sex.
Keir Starmer has thus been, as so often, a lucky general, and Kemi Badenoch an unlucky one. The Supreme Court could simply have referred the matter to Parliament – declaring that the matter was for elected politicians to solve.
Sir Keir, who once said that the 'vast majority' of women 'don't have a penis', would thus have been constrained, while grappling with the issue, by a party which believes that some do.
Meanwhile, Badenoch, who has consistently argued that 'women are women and men are men: you cannot change your biological sex' would have relished a parliamentary struggle. The Court has denied her one.
That's not to say that Labour should take all the blame and the Conservatives all the credit – far from it, as we've seen. Johnson, once Prime Minister, scrapped May's pledge to allow trans people to self-identify their gender.
But this was a Conservative reversal of a Conservative commitment, driven less by conviction than circumstance. Johnson's nose had sniffed out a change in the political wind.
The shift has been significant. The British Social Attitudes survey shows those describing themselves as 'not prejudiced' toward trans people dropped from 82 per cent in 2019 to 64 per cent in 2022 – and, since few people like to admit to prejudice, it is reasonable to ask whether the real figure is lower. Support for changing one's birth certificate has also fallen over the same period – from 53 per cent to 30 per cent, according to the BSA.
Younger people, especially younger women, are more supportive of self-identification. And it is possible to believe that their view will prevail over time. But it is hard to follow the story of the past few years and think that the triumph of the trans campaigners is inevitable – in much the same way that Marxists still believe that communism will create the perfect society.
Ilsa Bryson, Keira Bell, Maya Forstater: all are milestones on the journey to last week's judgement. Bryson, formerly known as Adam Graham, was placed in a female prison after being convicted of raping two women. The incident was instrumental in the stunning fall from grace of Nicola Sturgeon. Bell, who started puberty blockers when 17, launched the successful legal case against the Tavistock clinic that led to the Cass Review.
Forstater, a gender critical feminist, failed to have a work contract renewed after expressing her opinions on gender on social media. She sued. At tribunal, she lost, and the judge said that her beliefs were 'not worthy of respect in a democratic society'. On appeal, she won, with a different judge ruling that her views are protected under the Equality Act.
All of these examples are major incidences along the road to this week's Supreme Court ruling – or, if you prefer, the steady rainfall that has washed away the house that May wanted to build.
Support for trans people in single sex spaces is among the lowest globally. Backing for trans competitors in women's sport has fallen. Above all, only two per cent of the public, according to YouGov, see trans issues as a top priority. If Johnson's account is right, Mordaunt's view was wrong.
Shock-waves will fan out from this week's judgement, like the ripples that spread after a stone is thrown in a pond. Women's refuges, shelters, sports, hospital wards, Government guidance: all will be open to legal action. So Sir Keir is not completely out of the woods. Above all, Parliament has an opportunity to rise to the challenge it ducked when, in passing the Equality Act, it passed the parcel to the courts. Pro-trans campaigners and gender critical feminists are united in calling for reform. There is an opening for Badenoch and for Reform here.
This week's judgement also raises a bigger question. We like to think of history as a march of progress, with rights for ethnic minorities, women and gay people as staging-posts on the journey. And so it is: childhood survival, life expectancy, food supply, income levels – all have risen worldwide since the end of the Second World War.
But the human story sometimes takes the wrong turn – and the latest thing isn't always the right thing. In the 1950s, lobotomy was seen as a breakthrough treatment for mental illness.
During the 1970s, the cause of the Paedophile Information Exchange was fashionable enough for it to be affiliated to the National Council for Civil Liberties. Before World War Two, eugenics commanded a political consensus. The cause withered in the wake of the Nazi extermination camps.
When is the latest thing the wrong thing? We mock the weaknesses of previous generations and probe our idols for feet of clay. But what might future generations damn us for – as we condemn those who came before us for racism, sexism and the rest?
Abortion on disability grounds, maybe? Or the use of ingredients tested on animals for cosmetics? Perhaps opting for the two environmental birds in the bush tomorrow, rather than the growth bird in the hand today? What will future attitudes be to gay rights, as the Muslim population grows?
Who can tell? But the lesson of this week's judgement is that what seems to be the right thing today – as the trans cause did to May – may seem the wrong thing tomorrow. 'The only wisdom we can hope to acquire / Is the wisdom of humility,' wrote Eliot. 'Humility is endless.'