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Wrote the Readers' Editor in her first column in this unique role, back in February 2020. What a load of tosh. Here's my complaint about Sam Fowles' column on THAT Supreme Court decision

Guardianistas, editing tomorrow’s edition

You can torture yourselves by reading this trans activist propaganda thinly disguised as legal opinion here:

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1. My complaint to the Readers’ Editor

Dear Readers' Editor

1) This opinion piece contains several legal inaccuracies and is misleading.

2) The first paragraph says that the Supreme Court judgment in For Women Scotland v The Scottish Ministers (handed down on 16 April 2025) does not rule on “the definition of woman”, but then seems to acknowledge later in the same paragraph and in the third paragraph that that is precisely what it does. It rules on the definition of a woman for the purposes of the Equality Act 2010.

3) The fourth paragraph states that ”the decision leaves the legal rights of cis women untouched”. Assuming that what is meant by “cis women” is “women”, this is demonstrably untrue. The Supreme Court explicitly recognised that the previous understanding of the law represented a threat to the rights of women, including specifically lesbian women, under the Act. This can clearly be seen from the summary in §265 of the judgment. See for example these comments about the law as it was previously understood:

a) §265(xiii): it “would … seriously weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations”

b) §265(xiv): “other provisions whose proper functioning requires a biological interpretation of “sex … include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others”

c) §265(xv): “Similar incoherence and impracticability arise in the operations of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces”.

4) See further §206 of the judgment, in which the Supreme Court explores further the impact on lesbians’ rights:

Alex Drummond, Stonewall Trans Adviser, and proud lesbian (according to Sam Fowles)

Accordingly, a person with same sex orientation as a lesbian must be a female who is sexually oriented towards (or attracted to) females, and lesbians as a group are females who share the characteristic of being sexually oriented to females. This is coherent and understandable on a biological understanding of sex. On the other hand, if a GRC under section 9(1) of the GRA 2004 were to alter the meaning of sex under the EA 2010, it would mean that a trans woman (a biological male) with a GRC (so legally female) who remains sexually oriented to other females would become a same sex attracted female, in other words, a lesbian. The concept of sexual orientation towards members of a particular sex in section 12 is rendered meaningless. It would also affect the composition of the groups who share the same sexual orientation (because a trans woman with a GRC and a sexual orientation towards women would fall to be treated as a lesbian) in a similar way as described above in relation to women and girls.

5) At §207 the Supreme Court describes this situation as causing “inevitable loss of autonomy and dignity for lesbians” and as carrying with it “practical implications for lesbians across several areas of their lives”.

6) Mr Fowles goes on to say “What [the judgment] does do, however, is make the legal equalities landscape significantly more complex. Previously, the Equality Act was interpreted quite simply: people who were born women or had a GRC were women for the purposes of the act”. This is misleading. Under the law as it was previously understood, there were four classes of “woman” in the EqA: (1) women and girls (2) transmen without Gender Recognition Certificates (3) transwomen with GRCs (4) for the purposes of the maternity discrimination provisions, transmen with GRCs. This was far from simple, and indeed was the whole point of this case. For example, it meant that a lesbian for the purposes of the EqA was either a woman without a GRC or a man with a GRC, who is attracted both to women without GRCs and to men with GRCs, but not to women with GRCs or to men who identify as women but do not have GRCs.

7) See also §172 of the Supreme Court judgment:

We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.

8) See further §239 of the Supreme Court judgment:

This is a confusing group to envisage because it cuts across and fragments both biological sex and gender reassignment into heterogenous groupings which may have little in common … Whereas the interests of biological women (or men) can be rationally considered and addressed, and likewise, the interests of trans people (who are vulnerable and often disadvantaged for different reasons), we do not understand how the interests of this heterogenous group can begin to be considered and addressed.

9) In the fifth paragraph of the article, Mr Fowles says this:

The court’s decision means there are now multiple legal classes of “woman” and “man”, each of which invites a different interpretation of the act: cis women, trans women with a GRC, trans women without a GRC, cis men, trans men with a GRC, trans men without a GRC.

10) This is quite extraordinarily wrong. Indeed, it is the opposite of what the Supreme Court decided. As stated above, the prior situation was, in substance, as stated by Mr Fowles (the word “cis” appears nowhere in the law, but his meaning can be deduced). The interpretation applied by the Supreme Court is that there is one single class of women and one single class of men: the two biological sexes. See §171 of the judgment:

Although the word “biological” does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman. These are assumed to be self-explanatory and to require no further explanation. Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group.

11) Mr Fowles states in the sixth paragraph of the article that the practical impact of the case is limited, because there are hardly any transwomen serving on public boards. This is highly disingenuous. The judgment quite obviously has impacts far beyond the composition of public boards. In law, it means (for example) that there is no ambiguity at all about who is entitled to use single-sex services. That is perfectly clear from merely skim-reading the judgment.

12) In the next paragraph Mr Fowles says “there is some suggestion that this might affect women-only groups that wish to exclude trans women. It won’t. The law permitted such exclusions already”. This is untrue. Mr Fowles appears to be confusing the law which allows service providers to exclude trans people from using single-sex services (Sch 3 §28 EqA) with the provisions on associations. The latter do not contain any relevant exceptions.

13) Moreover this is not dealt with in the judgment as some sort of “suggestion”. The Supreme Court deals at length with this pivotal issue in the case, and states categorically that if the law were to be understood as the Scottish Government preferred, women-only groups would not be able to exclude men with GRCs:

206 … if a GRC changes a person’s sex for the purposes of the EA 2010, a women-only club or a club reserved for lesbians would have to admit trans women with a GRC (legal females who are biologically male and attracted to women). Evidence referred to by the second interveners suggests that this is having a chilling effect on lesbians who are no longer using lesbian-only spaces because of the presence of trans women (ie biological men who live in the female gender)

207 It is unprincipled to answer this problem by saying, as the Scottish Ministers do, that associations can restrict membership to less than 25 members so that they are not an “association” for the purposes of Part 7. It is also impractical. The Scottish Ministers also suggested in writing that the fact that the members of the association may not be attracted to a particular woman (a trans woman with a GRC who is therefore legally female) or wish to associate with her, does not diminish the protections which they are entitled to in terms of their own protected characteristic of sexual orientation. Even if this is true (which is doubtful) it does not begin to address the chilling effect a certificated sex interpretation appears to have on the ability of lesbians to associate in lesbian-only spaces. The idea that to do so they should seek instead to restrict membership on the basis of “some shared philosophical belief regarding the immutability of sex” (as Ms Crawford KC suggested in argument) demonstrates the incoherence of the Scottish Ministers’ position.

14) It can be seen from the above excerpt that this point was substantively conceded by the Scottish Government in oral submissions: the only arguments advanced by them were to the effect that lesbians could mitigate the effect of the law by adopting circumventing tactics.

15) In the eighth paragraph of the article Mr Fowles makes various points about the protection for trans people in the EqA under the protected characteristic of gender reassignment. It is not at all clear what he is trying to say here, but it certainly appears to be questionable. At the end of the paragraph he seems to be saying that a breastfeeding transman wouldn’t have to rely on the specific provision in s.17 EqA to bring a complaint of discrimination, because she could instead bring a claim of direct gender reassignment discrimination. This is ridiculous for multiple reasons.

Fowles means these creeps

16) Mr Fowles then complains that no trans people were represented before the Supreme Court, and that Victoria McCloud, a trans identified male, was refused permission to intervene. He does not acknowledge that it is highly unusual for an individual to be granted permission to intervene, nor that transactivists had the advantage of being represented and defended up to Supreme Court level by a national government and its attendant financial and legal resources. Amnesty, a long-established and very influential charity, also intervened on behalf of transactivists. We do not know whether these two parties took instructions from trans people before making their submissions – perhaps Mr Fowles should ask them.

17) In conclusion, this is an embarrassing attempt by a non-specialist junior barrister to present a rapid, on-the-day take-down of an 88 page judgment written over five months by five top judges who are properly described as the country’s most exceptional legal brains. Mr Fowles clearly did not even read the judgment before submitting this article for publication. It ought to be removed from your website. Disinformation in this area of law is absolutely rife, and it is deeply irresponsible to publish material which gives people the impression that their equality rights are being undermined when they are not.

Please confirm receipt of this complaint, and let me know how you intend to remedy it.

Sincerely, Julie Bindel

2. First response by the Readers’ Editor to my complaint

Dear Julie

Thank you for your email. Your complaint is being considered. I went through it carefully yesterday and have today sought responses on some points from the writer and relevant editor.

In the meantime, please could I ask you to clarify your numbered point (15) in which you take issue with the end of paragraph eight. You say: "[Sam Fowles] seems to be saying that a breastfeeding transman wouldn’t have to rely on the specific provision in s.17 EqA to bring a complaint of discrimination, because she could instead bring a claim of direct gender reassignment discrimination. This is ridiculous for multiple reasons."

I note that paragraph refers to a trans woman not being protected by section 17, but suggests discrimination is "probably" prohibited by sections 7 and 13.

Does it change your view that the reference is to a trans woman, and if not can you explain why it is inaccurate or misleading to suggest that sections 7 and 13 could protect a trans woman where protection under section 17 is not available? This will assist me in considering this point in your complaint.

Kind regards

Readers’ Editor

3. My response to Readers’ Editor

The paragraph on bringing a direct gender reassignment claim for a breastfeeding transman is ridiculous for the following reasons:

“Some sections of the act, which refer explicitly to “women”, will now be confined to cis women” – nonsense, “women” means all women, including transmen. That is the key point.

“Section 17 of the act, for example, explicitly refers to “treating a woman unfavourably because she is breastfeeding” as an example of discrimination against women on the basis of sex” – s.17 is about pregnancy and maternity discrimination (including breastfeeding) in non-employment contexts. It’s not an “example” of sex discrimination against women. It’s a separate type of discrimination altogether. It doesn’t require a comparator. It doesn’t require less favourable treatment, just unfavourable treatment.

“The court’s decision suggests that a trans woman is not protected by section 17” – I originally read this as being about trans men. Of course it doesn’t apply to transwomen: they can’t breastfeed because they are male.

“Such discrimination is still, however, probably prohibited by sections 7 and 13 (which prohibit discrimination against trans people)” – a transwoman who wanted to bring a direct gender reassignment discrimination claim in connection with breastfeeding would have to first be breastfeeding, which is not possible because they are male. Even assuming they are breastfeeding, and are then treated badly because of it, the direct discrimination claim would require them to show:

that they have been treated less favourably than a non-trans man who was also breastfeeding. This is an implausible and ridiculous comparator, and showing less favourable treatment than this comparator is similarly highly unlikely; and

that the *reason* for the treatment was that they were trans. Again, it seems quite considerably more likely that the reason for any such treatment would be because they were male.

In any event, s.13 does not provide a comparable level of protection to s.17, because it requires a comparator and less favourable treatment. Furthermore s.17 prohibits unfavourable treatment where the reason for it is the breastfeeding (or other pregnancy or maternity related factor), not some other protected characteristic. Put simply, s.13 is a much lower level of protection than s.17.

In fact, what the judgment does is to give rights to protection from pregnancy and maternity discrimination to *transmen* with GRCs, who quite obviously are more likely to need it than transwomen.

Yours sincerely, Julie

4. Second response by the Readers’ Editor

Dear Julie

I am writing in response to your complaint, received 17 April, regarding an article headlined, The supreme court didn’t rule on the definition of ‘a woman’ – this is what its judgment does mean).

The article was an opinion piece responding to a judgment of the supreme court in which it ruled on the meaning of the terms “sex”, “man” and “woman” in the Equality Act 2010.

As a starting point, I considered the article was clearly distinguished as an opinion piece in its presentation and tone, such that it would be clear to readers that this was the personal view of the writer, Sam Fowles, who is a barrister.

The judgment of the supreme court, while clear and unanimous in deciding that “woman” in the EA means biological sex and not certificated sex, has generated significant debate and argument as to its implications, and the columnist was entitled to express his considered perspective on the significance and likely effect of the judgment, even if others might strongly disagree with it, as long as the article did not lead to a breach of the editorial code.

Turning to your complaint: you raised a number of points relating to accuracy, which I have considered and have addressed below in the order presented in your email. In your complaint, you supported various of the points with quotes from the court’s judgment; although I have not reproduced them here, I did read them all.

You suggested the first paragraph was at fault in saying the Supreme Court judgment did not rule on “the definition of a woman”. I considered it was plain that the writer, who then quoted from the ruling, was making a distinction between defining the word “woman” in general (which the court said it had not done) and defining what “woman” meant in the provisions of the Equality Act (which the court did decide). This was not inaccurate and readers would not reasonably have been misled by the point being made.

You suggested the fourth paragraph was wrong in saying that ”the decision leaves the legal rights of cis women untouched”. You said the supreme court “explicitly recognised that the previous understanding of the law represented a threat to the rights of women, including specifically lesbian women, under the Act. This can clearly be seen from the summary in §265 of the judgment”.

What Mr Fowles meant by his comment is that the judgment does not identify a legal right held by women after the judgment that was not also held before the judgment. While I note your saying “the previous understanding of the law represented a threat to the rights of women”, I consider it would be clear in the context that Mr Fowles was referring to the legal rights provided in the statute as being “untouched”, rather than commenting on the functioning of those provisions.

You suggested the same paragraph was misleading in saying the judgment had made “the equalities landscape significantly more complex” or that previously the Equality Act was “interpreted quite simply”. You said that “as the law was previously understood, there were four classes of ‘woman’: women and girls; transmen without Gender Recognition Certificates; transwomen with GRCs; and for the purposes of the maternity discrimination provisions, transmen with GRCs.” You said this was far from simple: “For example, it meant that a lesbian for the purposes of the EqA was either a woman without a GRC or a man with a GRC, who is attracted both to women without GRCs and to men with GRCs, but not to women with GRCs or to men who identify as women but do not have GRCs.”

A pregnant woman, referred to as a ‘pregnant man’ in woo woo land

You suggested it was wrong where he went on to say in the fifth paragraph that “The court’s decision means there are now multiple legal classes of “woman” and “man”, each of which invites a different interpretation of the act: cis women, trans women with a GRC, trans women without a GRC, cis men, trans men with a GRC, trans men without a GRC.”

You said: “The interpretation applied by the Supreme Court is that there is one single class of women and one single class of men: the two biological sexes. See §171 of the judgment.”

I consider that referring to the situation after the ruling as “significantly more complex” would clearly be understood as the writer’s appraisal and characterisation. In the piece, he gives a basis for the comment, setting out in the article the classes of “woman” and “man” which he says now invite different interpretations of the Act. I asked him further about this in light of your complaint, and he responded that the practical effect of the judgment is that the classes he lists in the piece “must now all be treated differently under the law (at least in form) because different bundles of legal rights apply to each”. Previously, he says, the “legal classes”, as reflected in the EHRC guidance, were "woman" (inclusive of trans women with a GRC) and "man" (inclusive of trans men with a GRC). This was the contrast he was making. He does not agree there were previously more defined categories for legal purposes. As such, I consider that he has expressed his evaluation of a change brought by the ruling and shown the basis for it, and I cannot see that your complaint has demonstrated a correction is required on this point.

You described as “highly disingenuous” Mr Fowles’ argument in paragraph six with regard to the impact on public boards. I note he wrote: “Trans people make up around 0.44% of the over-16 population in Scotland. The chances of a cis woman losing a public board position to an equally qualified trans woman are vanishingly small. The 2018 act will still permit the appointment of a trans woman ahead of an equally qualified biological woman if the appointment can be justified on the basis of their ‘particular characteristics or situation’.” These three sentences comprise a statement of demographics, a comment that would clearly be understood as speculative as to practical impact, followed by his interpretation of the continuing function of the 2018 Act in Scotland. While a reader may disagree with the writer’s assessment of the impact of the ruling in this regard, he was entitled to his view and I did not consider that this paragraph had been shown to contain inaccurate or misleading information..

You took issue with paragraph seven, where the author wrote: “there is some suggestion that this might affect women-only groups that wish to exclude trans women. It won’t. The law permitted such exclusions already”. You said it appeared to confuse the law around service providers with the provisions on associations, which you said do not contain any relevant exceptions.

In referring to permitted exclusions, Mr Fowles was talking about those relating to the provision of services, and the women’s groups that provide them. A link was added to the relevant point in the article on 17 April (before you made your complaint) to give readers further details of the referenced circumstances in which trans people’s access to a service could be prevented or limited. I thought the addition of the link to the EHRC page about permitted exclusions for single-sex services provided clarity for readers who wished to know more. Mr Fowles had not been referring in that sentence to women’s membership associations (+25 members) that wished to exclude transwomen but which did not provide any services.

Although I did not consider this paragraph was significantly inaccurate or misleading such as to require a correction. Mr Fowles was happy to include reference to services for the avoidance of any potential doubt; he also revised for nuance the words that followed in the same paragraph.

With regard to paragraph eight, you described Mr Fowles’ view of the protections potentially available to trans women under sections 7 and 13 of the Equalities Act (absent the protections of section 17) as “ridiculous”, but you did not say why you believed this to be so. I invited you to provide more detail of this aspect of your complaint and received your response this morning just as I was about to send this reply, leaving this particular point as pending. I have read your latest email but as I am out of the office today and will also need to give Mr Fowles an opportunity to respond to me, I am sending this reply now and will reply separately on the point at issue here.

Finally, you complained that Mr Fowles remarked that no trans people were represented before the Supreme Court, “without acknowledging that it is highly unusual for an individual to be granted permission to intervene, nor that transactivists had the advantage of being represented and defended up to Supreme Court level by a national government and its attendant financial and legal resources”. While you are entitled to your rebuttal of this comment, in the context of an opinion piece I consider a writer is entitled to argue what they regard as shortcomings in a process without a requirement to present the counterarguments (which they may or may not regard as persuasive). It would clearly be understood as Mr Fowles’ opinion that the court ought to have heard directly from trans people, and I did not consider the omission of argument for their not being represented rendered the article inaccurate, inaccurate or misleading.

In conclusion, I appreciate you disagree strongly with Mr Fowles’ view of the supreme court’s judgment, but for the reasons set out above I have not found there to be any breach of editorial standards.

I will come back to you regarding paragraph eight.

Kind regards

Readers’ Editor

5. The full and final response from the Readers’ Editor to my complaint

Dear Julie

Thank you for your supplementary email explaining your concerns about paragraph eight of the article. I hope you don't mind my responding on a Saturday evening but you indicated in your last email that you yourself would be emailing further over the weekend, and therefore I thought you might find it useful to have my reply on the pending point sooner than my scheduling the email for Monday.

In your email on Thursday, you described as "nonsense" the sentence in which Mr Fowles wrote, “Some sections of the act, which refer explicitly to “women”, will now be confined to cis women”. You said “women” means all women, including transmen.

The supreme court's judgment on the Equality Act 2010 does mean trans men will be considered as "women" under the Act. However, in my view the context of the queried sentence in paragraph eight cannot be overlooked in considering how Mr Fowles' words are to be understood.

The court ruled on the meaning in the legislation of "man", "woman" and "sex", but the origin of the case was dispute about whether "woman" should be interpreted as inclusive of trans women with a GRC (as the Scottish guidance said), such that trans women had the rights of biological women and would be included in the figures for women's representation on public boards. The supreme court's summary said in concluding that its decision meant that, "Therefore, a person with a GRC in the female gender does not come within the definition of a “woman” under the EA 2010 and the statutory guidance issued by the Scottish Ministers is incorrect." The principal focus of discussion and reporting after the ruling was likewise this clarification that trans women were not included as women under the EA 2010 because "woman" in the Act meant a biological woman. It was also the chief concern of Mr Fowles' article. The sentence in question was not intending to recite, as a news explainer might, who now fell into the class of "woman"; it was referring to the fact that where both biological women and trans women were previously understood by some to be "women" for the purposes of the Act, trans women were now confirmed as falling outside that category. I consider readers would reasonably understand "confined to cis women" in that sense. This was therefore not in my view inaccurate or misleading in the surrounding context. However, Mr Fowles was happy, for the avoidance of any doubt, to parenthetically add reference to trans males, even though this was not quite the point of his sentence.

Mr Fowles referred to a hypothetical case of a trans woman breastfeeding. You said trans women "can't breastfeed because they are male". Mr Fowles provided me with the following link to a peer-reviewed article to support the possibility of the scenario he described: https://pubmed.ncbi.nlm.nih.gov/37138506/ I noted a further academic study here and news reporting of an earlier study here. There was no inaccuracy in the article's reference to a trans woman breastfeeding.

Mr Fowles' article then suggested how a breastfeeding trans woman could be protected from discrimination. The point has not yet been tested in a court of law but Mr Fowles believes he is right that a trans woman could bring such a claim as described in circumstances where they received less favourable treatment than others because of the protected characteristic of gender reassignment.

Your complaint argues that protection would not be available under the Act to a trans woman badly treated while breastfeeding, saying the necessary comparator would be a non-trans man and presenting a scenario that speculates it is "likely that the reason for any such treatment [of the trans woman] would be because they were male". Each case will naturally turn on its particular circumstances, and your different interpretation of the provisions of the law may be an argument suited to a letter, but I do not consider it makes the case for a correction. The free flow of debate must allow for disagreement and contrary interpretations, unless there are statements of fact that are demonstrably inaccurate or misleading. Here, I consider Mr Fowles was clearly expressing his opinion of the impact of the Act's provisions in light of the ruling, and on this point he caveated that discrimination is "still, however, probably prohibited", and that a reasonable reader would understand that others, including other legal minds, may take a different view.

Kind regards

Readers’ Editor

6. My final word

The article is obviously wrong about the law and, in my view, your response, disingenuous. The piece is misleading, and I doubt I am the only person to point this out. I do not accept that this article did not breach editorial standards.

Yours sincerely, Julie Bindel

Oh yes it is!