1 00:00:00,520 --> 00:00:04,359 Speaker 1: Already and this is the Daily This is the Dahlias. 2 00:00:05,120 --> 00:00:15,800 Speaker 1: Oh now it makes sense. Good morning and welcome to 3 00:00:15,800 --> 00:00:18,239 Speaker 1: the Daily OS. It's Friday, the eighteenth of April. 4 00:00:18,320 --> 00:00:20,520 Speaker 2: I'm Lucy Tassel, I'm Zara Seidler. 5 00:00:20,920 --> 00:00:24,080 Speaker 1: This week the UK Supreme Court handed down a landmark 6 00:00:24,160 --> 00:00:27,800 Speaker 1: decision finding that a woman is defined by biological sex 7 00:00:27,880 --> 00:00:31,560 Speaker 1: under the law. It means transgender women with legal documentation 8 00:00:31,840 --> 00:00:35,080 Speaker 1: reflecting their transition. I'm not entitled to the same sex 9 00:00:35,120 --> 00:00:40,080 Speaker 1: discrimination protections as biological women. Today we'll be breaking down 10 00:00:40,120 --> 00:00:42,559 Speaker 1: the decision, how it came to be and what the 11 00:00:42,600 --> 00:00:43,400 Speaker 1: response has been. 12 00:00:47,080 --> 00:00:51,680 Speaker 3: Lucy, the legal definition of a woman is a fairly 13 00:00:52,240 --> 00:00:56,680 Speaker 3: large concept for the courts to tackle. How does this 14 00:00:56,720 --> 00:00:59,560 Speaker 3: sort of question even come before the UK Supreme Court? 15 00:00:59,560 --> 00:01:01,520 Speaker 2: Can you take back to the beginning of this story. 16 00:01:01,760 --> 00:01:04,160 Speaker 1: Yeah, this has been going on for quite a few 17 00:01:04,240 --> 00:01:07,840 Speaker 1: years now. It started in Scotland in twenty eighteen, and 18 00:01:08,080 --> 00:01:10,800 Speaker 1: the fact that that's where it began is important. Go 19 00:01:10,959 --> 00:01:14,240 Speaker 1: back to that later. But basically, in twenty eighteen, the 20 00:01:14,280 --> 00:01:19,000 Speaker 1: Scottish Parliament pastor law mandating that boards of public organizations 21 00:01:19,120 --> 00:01:23,000 Speaker 1: be fifty percent women fifty percent men, and the law 22 00:01:23,120 --> 00:01:26,240 Speaker 1: defined trans women who had or were planning to have 23 00:01:26,360 --> 00:01:30,240 Speaker 1: gender affirming surgeries as women under this law, meaning they 24 00:01:30,240 --> 00:01:33,880 Speaker 1: could contribute to the fifty percent. Now in the UK, 25 00:01:34,280 --> 00:01:37,160 Speaker 1: since two thousand and four, there's a legal process that 26 00:01:37,200 --> 00:01:40,520 Speaker 1: trans people can follow to be recognized as their This 27 00:01:40,640 --> 00:01:44,199 Speaker 1: is UK government language affirmed gender. It's called a gender 28 00:01:44,240 --> 00:01:48,559 Speaker 1: Recognition Certificate. According to the UK Government, a person must 29 00:01:48,600 --> 00:01:53,360 Speaker 1: meet several requirements. This includes being over eighteen, having lived 30 00:01:53,400 --> 00:01:56,279 Speaker 1: as their affirmed gender for a certain period of time, 31 00:01:56,640 --> 00:01:59,600 Speaker 1: and you have to have approval from two doctors and 32 00:01:59,640 --> 00:02:02,920 Speaker 1: then an expert panel reviews any applications that come through. 33 00:02:03,600 --> 00:02:07,480 Speaker 1: Scotland's parliament said transwomen who have this certificate should count 34 00:02:07,480 --> 00:02:10,160 Speaker 1: towards the public quota that they were instituting. 35 00:02:10,639 --> 00:02:13,799 Speaker 3: Okay, so it's twenty eighteen. The Scottish Parliament has passed 36 00:02:13,800 --> 00:02:17,760 Speaker 3: this law trying to entrench gender quotas for public boards 37 00:02:18,160 --> 00:02:22,520 Speaker 3: that includes transwomen who can form part of that fifty percent. Obviously, 38 00:02:22,560 --> 00:02:25,640 Speaker 3: though that's not where this story ends. What happened in 39 00:02:25,680 --> 00:02:27,480 Speaker 3: response to that law being legislated. 40 00:02:27,960 --> 00:02:33,440 Speaker 1: In response, a group formed called four Women's Scotland hereafter FWS. 41 00:02:33,960 --> 00:02:36,560 Speaker 1: They believe and I'm just quoting from their website here, 42 00:02:36,880 --> 00:02:39,720 Speaker 1: that there are only two sexes, that a person's sex 43 00:02:39,800 --> 00:02:43,600 Speaker 1: is not a choice nor can it be changed. FWS 44 00:02:43,720 --> 00:02:46,640 Speaker 1: on these grounds brought a case against the Scottish government. 45 00:02:46,919 --> 00:02:50,639 Speaker 1: They argued that defining a woman was actually beyond the 46 00:02:50,680 --> 00:02:55,360 Speaker 1: powers of the Scottish government because it's devolved from the UK. 47 00:02:55,600 --> 00:02:56,560 Speaker 1: That's the official word. 48 00:02:57,160 --> 00:02:59,600 Speaker 2: What is that official word actually mean? Devolved? 49 00:03:00,040 --> 00:03:03,400 Speaker 1: So basically Scotland is a country, but it's also part 50 00:03:03,480 --> 00:03:08,360 Speaker 1: of the UK, so England, Scotland, Wales, Northern Ireland. As 51 00:03:08,440 --> 00:03:12,360 Speaker 1: a result, Scotland has two governments. It has the Scottish Government. 52 00:03:12,520 --> 00:03:17,080 Speaker 1: It has responsibilities like law and order, education, healthcare and 53 00:03:17,120 --> 00:03:20,240 Speaker 1: social services. The leader of the Scottish Government is called 54 00:03:20,240 --> 00:03:23,880 Speaker 1: the First Minister. Then the UK Government, which is over 55 00:03:23,919 --> 00:03:29,560 Speaker 1: the top. Its responsibilities include immigration, energy, employment, in human rights, 56 00:03:29,600 --> 00:03:32,799 Speaker 1: which is important to this. The Scottish Government is below 57 00:03:32,880 --> 00:03:36,600 Speaker 1: the UK government, so its decisions can be superseded, which 58 00:03:36,600 --> 00:03:39,320 Speaker 1: has happened. Actually TDA has covered this a couple of 59 00:03:39,400 --> 00:03:42,080 Speaker 1: times in the last couple of years. So the UK 60 00:03:42,360 --> 00:03:46,480 Speaker 1: overruled a previous attempt by Scotland to make it easier 61 00:03:46,640 --> 00:03:49,640 Speaker 1: for people to apply for that gender recognition certificate that 62 00:03:49,680 --> 00:03:52,760 Speaker 1: I mentioned earlier. That's actually it's related, but it is 63 00:03:53,000 --> 00:03:58,000 Speaker 1: entirely separate. So the UK overruled that decision. Another important 64 00:03:58,120 --> 00:04:01,960 Speaker 1: decision was in twenty forty Scotland held a referendum on 65 00:04:02,080 --> 00:04:06,280 Speaker 1: becoming independent from the UK. It failed, and then in 66 00:04:06,320 --> 00:04:09,920 Speaker 1: twenty twenty two a UK court found Scotland's government needs 67 00:04:09,960 --> 00:04:13,640 Speaker 1: to ask for UK parliament permission if it ever wants 68 00:04:13,720 --> 00:04:15,280 Speaker 1: to hold another referendum. 69 00:04:15,880 --> 00:04:19,440 Speaker 3: So there are some examples there of that relationship between 70 00:04:19,520 --> 00:04:24,240 Speaker 3: Scotland and the UK and the separate governance there. And 71 00:04:24,320 --> 00:04:27,240 Speaker 3: so going back to the case about the public boards, 72 00:04:27,360 --> 00:04:30,080 Speaker 3: you're saying that this group sues on the ground that 73 00:04:30,160 --> 00:04:33,320 Speaker 3: Scotland isn't allowed to do what it's done there in 74 00:04:33,480 --> 00:04:36,920 Speaker 3: legislating those quotas and including trans women in them. 75 00:04:37,080 --> 00:04:41,520 Speaker 1: Yes, they basically were arguing you can't take steps to 76 00:04:41,640 --> 00:04:44,320 Speaker 1: define a woman in this way. You don't have the 77 00:04:44,360 --> 00:04:45,359 Speaker 1: power to do that. 78 00:04:45,360 --> 00:04:46,280 Speaker 2: That's with the UK. 79 00:04:46,600 --> 00:04:50,200 Speaker 1: Yeah, that's with the UK. So in twenty twenty FWS 80 00:04:50,240 --> 00:04:53,800 Speaker 1: actually won a court challenge on those grounds. In response, 81 00:04:53,960 --> 00:04:58,040 Speaker 1: the Scottish government issued a new set of rules. It's said, basically, 82 00:04:58,240 --> 00:05:02,400 Speaker 1: our law is aligned with a UK wide Equality Act 83 00:05:02,680 --> 00:05:06,120 Speaker 1: which came into effect in twenty ten. They basically said, no, 84 00:05:06,320 --> 00:05:08,279 Speaker 1: we do have the power to do this, and here's 85 00:05:08,440 --> 00:05:12,039 Speaker 1: the overall law that applies to the whole United Kingdom 86 00:05:12,080 --> 00:05:14,840 Speaker 1: that proves that we were correct in doing so. It 87 00:05:14,960 --> 00:05:17,960 Speaker 1: said the Equality Act defined a woman as quote a 88 00:05:18,000 --> 00:05:20,800 Speaker 1: female of any age, and that a person with a 89 00:05:20,880 --> 00:05:25,560 Speaker 1: GRC saying that they are female is counted under this definition. 90 00:05:25,680 --> 00:05:29,440 Speaker 1: That was their rationale. Then, in response to that guidance, 91 00:05:29,600 --> 00:05:32,720 Speaker 1: FWS launched another legal challenge, which as the one we're 92 00:05:32,760 --> 00:05:36,400 Speaker 1: talking about today. It argued the Act actually defines women 93 00:05:36,480 --> 00:05:40,240 Speaker 1: by quote biological sex. That's their rationale and that's the 94 00:05:40,279 --> 00:05:41,400 Speaker 1: case we're talking about today. 95 00:05:41,760 --> 00:05:45,120 Speaker 3: Okay, So the case escalates to the UK's highest court, 96 00:05:45,120 --> 00:05:45,960 Speaker 3: the Supreme Court. 97 00:05:46,160 --> 00:05:47,360 Speaker 2: What do we know about the trial? 98 00:05:47,720 --> 00:05:50,920 Speaker 1: What's interesting to me about the trial is that this 99 00:05:51,000 --> 00:05:56,080 Speaker 1: is being argued between FWS and the Scottish government about 100 00:05:56,480 --> 00:06:00,280 Speaker 1: the place of trans women under the law. So trans women, 101 00:06:00,320 --> 00:06:03,240 Speaker 1: despite being the subject of this case, are not like 102 00:06:03,320 --> 00:06:07,159 Speaker 1: a represented party, if that makes sense. So a UK 103 00:06:07,320 --> 00:06:11,279 Speaker 1: legal ngo called the Good Law Project analyzed the trial. 104 00:06:11,360 --> 00:06:15,600 Speaker 1: They said no trans people gave evidence. Victoria MacLeod is 105 00:06:15,640 --> 00:06:19,120 Speaker 1: the UK's first trans female judge, and she often comments 106 00:06:19,160 --> 00:06:22,680 Speaker 1: on legal matters. She told The Guardian she tried to 107 00:06:22,720 --> 00:06:26,000 Speaker 1: intervene in the case but was denied, and she actually 108 00:06:26,040 --> 00:06:28,880 Speaker 1: says she's left the UK because she doesn't believe it's 109 00:06:28,920 --> 00:06:32,080 Speaker 1: safe for her to live there anymore. Ultimately, the case 110 00:06:32,200 --> 00:06:35,600 Speaker 1: was decided by a panel of five Supreme Court justices 111 00:06:35,920 --> 00:06:40,960 Speaker 1: and they unanimously agreed in fws's case earlier this week. 112 00:06:41,440 --> 00:06:44,799 Speaker 3: Okay, so ultimately they found that a woman is defined 113 00:06:44,880 --> 00:06:47,239 Speaker 3: by biological sex under the law under. 114 00:06:47,040 --> 00:06:48,240 Speaker 2: The Equalities Act. 115 00:06:48,440 --> 00:06:50,240 Speaker 3: Can you talk to me about the reasoning that these 116 00:06:50,320 --> 00:06:52,719 Speaker 3: judges put behind their judgment. 117 00:06:53,240 --> 00:06:55,559 Speaker 1: A core part of their judgment was that they said 118 00:06:55,680 --> 00:06:58,160 Speaker 1: the twenty ten Act that this was centering on the 119 00:06:58,160 --> 00:07:01,040 Speaker 1: interpretation of this Act. They said, this Act is actually 120 00:07:01,040 --> 00:07:05,000 Speaker 1: based on a previous act, the nineteen seventy five Sex 121 00:07:05,040 --> 00:07:09,200 Speaker 1: Discrimination Act, and they said, quote there is no doubt 122 00:07:09,279 --> 00:07:12,440 Speaker 1: that Parliament intended the words man and woman to refer 123 00:07:12,520 --> 00:07:15,800 Speaker 1: to biological sex at that time when that original Act 124 00:07:15,840 --> 00:07:18,520 Speaker 1: was written in nineteen seventy five. And they said, this 125 00:07:18,640 --> 00:07:20,800 Speaker 1: new Act is based on the old Act. It's all 126 00:07:20,840 --> 00:07:24,480 Speaker 1: of a piece. They also found that extending these sex 127 00:07:24,520 --> 00:07:28,200 Speaker 1: discrimination protections to people with GRCs would lead. 128 00:07:28,080 --> 00:07:32,160 Speaker 2: To confusion GRCs. There is that certificate, the certificate. 129 00:07:32,400 --> 00:07:36,480 Speaker 1: And they raised concerns around single sex spaces which quote 130 00:07:36,720 --> 00:07:41,360 Speaker 1: require a biological interpretation of sex in order to function coherently. 131 00:07:41,640 --> 00:07:45,840 Speaker 1: So that's things like single sex bathrooms, changing rooms, sport 132 00:07:46,560 --> 00:07:50,720 Speaker 1: armed forces. The judges did note that trans people are 133 00:07:50,840 --> 00:07:55,080 Speaker 1: still protected from discrimination under the Equality Act on the 134 00:07:55,080 --> 00:07:59,440 Speaker 1: ground of gender reassignment and indirect discrimination on the basis 135 00:07:59,440 --> 00:08:03,320 Speaker 1: of sex. They said, quote, a trans woman can claim 136 00:08:03,360 --> 00:08:06,880 Speaker 1: sex discrimination because she is perceived to be a woman. 137 00:08:07,000 --> 00:08:11,080 Speaker 1: Talking there about indirect discrimination. I will be very interested 138 00:08:11,120 --> 00:08:14,160 Speaker 1: to see any future tests of that precedent. 139 00:08:14,600 --> 00:08:18,679 Speaker 3: Okay, So this is a fairly landmark decision, this sort 140 00:08:18,720 --> 00:08:22,720 Speaker 3: of definition so fraud. It's been spoken about in the 141 00:08:22,760 --> 00:08:25,520 Speaker 3: media and political circles for so long and here we 142 00:08:25,640 --> 00:08:28,880 Speaker 3: have this judgment. What has the response to the verdict 143 00:08:29,000 --> 00:08:29,560 Speaker 3: actually been. 144 00:08:30,120 --> 00:08:33,920 Speaker 1: So FWS was obviously very excited. There's a number of 145 00:08:33,920 --> 00:08:37,760 Speaker 1: other groups like them in the UK. FWS said that 146 00:08:37,800 --> 00:08:41,480 Speaker 1: they were quote absolutely jubilant, and certainly the response from 147 00:08:41,520 --> 00:08:45,160 Speaker 1: those other groups has also been very positive. There's a 148 00:08:45,200 --> 00:08:50,079 Speaker 1: major supporter of FWS, both publicly and literally financially. In 149 00:08:50,480 --> 00:08:54,000 Speaker 1: Harry Potter, author JK Rowling, who made a series of 150 00:08:54,000 --> 00:08:56,120 Speaker 1: posts on x celebrating the outcome. 151 00:08:56,520 --> 00:08:58,800 Speaker 2: So she was financially backing the group. 152 00:08:59,120 --> 00:09:02,160 Speaker 1: She contributed money towards their legal fees a couple of 153 00:09:02,280 --> 00:09:05,360 Speaker 1: years ago, and she has been very openly in favor 154 00:09:05,440 --> 00:09:09,560 Speaker 1: of this stance and in favor of this group, she said, quote. 155 00:09:09,679 --> 00:09:13,040 Speaker 1: The fact that so many UK trans activists are shrieking 156 00:09:13,080 --> 00:09:16,240 Speaker 1: about injustice says it all. You never had the rights 157 00:09:16,360 --> 00:09:20,640 Speaker 1: you claim you've lost. You had demands, so fairly strong 158 00:09:20,640 --> 00:09:24,120 Speaker 1: words from her there. The Scottish government said they accepted 159 00:09:24,120 --> 00:09:27,640 Speaker 1: the ruling and would engage on its implications, basically figuring 160 00:09:27,640 --> 00:09:29,120 Speaker 1: out what that means for that vitation. 161 00:09:29,360 --> 00:09:29,560 Speaker 3: Yeah. 162 00:09:29,720 --> 00:09:33,720 Speaker 1: Yeah. Trans advocacy groups have spoken out against the ruling, 163 00:09:33,800 --> 00:09:38,200 Speaker 1: as you would expect. One group, Transactual said quote, the 164 00:09:38,240 --> 00:09:42,960 Speaker 1: intent seems clear to exclude trans people wholesale from participating 165 00:09:43,000 --> 00:09:47,480 Speaker 1: in UK society. Today we are feeling very excluded and 166 00:09:47,720 --> 00:09:52,480 Speaker 1: a local organization, Scottish Trans, told people not to panic 167 00:09:52,880 --> 00:09:55,800 Speaker 1: and that it would carefully read the judgment to understand 168 00:09:55,880 --> 00:09:57,680 Speaker 1: what its impact will be day to day. 169 00:09:58,240 --> 00:10:01,439 Speaker 3: LiTi, just to end with, I do want to understand 170 00:10:01,520 --> 00:10:05,720 Speaker 3: whether a judgment like this could have any implications domestically 171 00:10:05,800 --> 00:10:09,360 Speaker 3: here in Australia. Obviously very separate jurisdictions, but Australia is 172 00:10:09,400 --> 00:10:13,480 Speaker 3: often both culturally and legally influenced by decisions in the UK. 173 00:10:14,080 --> 00:10:16,040 Speaker 2: Do you think we could see a similar move here. 174 00:10:16,520 --> 00:10:20,880 Speaker 1: It's entirely possible. I won't say it's not possible. However, 175 00:10:20,960 --> 00:10:24,240 Speaker 1: I will say certainly, at the risk of seeming shortsighted, 176 00:10:24,480 --> 00:10:28,600 Speaker 1: I think it is currently unlikely. There's a few reasons why. 177 00:10:29,040 --> 00:10:32,440 Speaker 1: According to a global survey by IPSOS in twenty twenty three, 178 00:10:32,679 --> 00:10:36,400 Speaker 1: more than half of Australians believe trans people should use 179 00:10:36,440 --> 00:10:40,640 Speaker 1: single sex facilities that correspond to their lived gender, and 180 00:10:41,000 --> 00:10:45,319 Speaker 1: four in five believe trans people should be protected from discrimination, 181 00:10:45,640 --> 00:10:49,320 Speaker 1: which is actually above the global average, so Australia is 182 00:10:49,640 --> 00:10:53,880 Speaker 1: perhaps more accepting on this one framework. According to this survey, 183 00:10:54,480 --> 00:10:59,640 Speaker 1: there have been demonstrations from groups like FWS in Australia 184 00:11:00,200 --> 00:11:03,000 Speaker 1: is a presence. There was one in Melbourne a couple 185 00:11:03,000 --> 00:11:07,280 Speaker 1: of years ago. In terms of the literal legal precedent 186 00:11:07,640 --> 00:11:11,600 Speaker 1: around transwomen and sex discrimination, there is a past case 187 00:11:11,640 --> 00:11:15,440 Speaker 1: that can illustrate this. Last year, the Federal Court found 188 00:11:15,559 --> 00:11:18,680 Speaker 1: in favor of a transwoman. Her name is Roxanne Tickle. 189 00:11:19,080 --> 00:11:22,160 Speaker 1: She argued she had been discriminated against when she was 190 00:11:22,280 --> 00:11:25,680 Speaker 1: kicked off a women only app by the app's founder, 191 00:11:25,960 --> 00:11:31,600 Speaker 1: who has repeatedly and publicly denied Tickle is a woman. Ultimately, also, 192 00:11:31,679 --> 00:11:34,400 Speaker 1: in terms of the actual fundamentals of where this case 193 00:11:34,440 --> 00:11:37,240 Speaker 1: started from, which in twenty eighteen we're talking about the 194 00:11:37,320 --> 00:11:41,920 Speaker 1: gender balanced boards issue, Australia has targets already in place 195 00:11:42,000 --> 00:11:45,560 Speaker 1: for government boards and overall were actually beating them. In 196 00:11:45,600 --> 00:11:48,439 Speaker 1: twenty twenty three, women held more than half of total 197 00:11:48,480 --> 00:11:52,520 Speaker 1: positions on Australian government boards. So even the impetus for 198 00:11:52,600 --> 00:11:55,400 Speaker 1: this specific case, there's not necessarily a need for that 199 00:11:55,600 --> 00:11:59,800 Speaker 1: in Australia because we're already achieving those goals. So possible, 200 00:12:00,000 --> 00:12:01,920 Speaker 1: not probable, is my feeling. 201 00:12:02,280 --> 00:12:04,800 Speaker 2: Well, Lucy, thank you for breaking down that story. 202 00:12:04,840 --> 00:12:07,640 Speaker 3: It's certainly a really big one and so many moving 203 00:12:07,720 --> 00:12:11,120 Speaker 3: parts there that will affect so many people. So appreciate 204 00:12:11,200 --> 00:12:14,120 Speaker 3: you explaining all of that, and thank you for joining 205 00:12:14,200 --> 00:12:16,920 Speaker 3: us for another week of the Daily OS. We hope 206 00:12:16,920 --> 00:12:19,400 Speaker 3: you enjoy your long weekend. We will be back on 207 00:12:19,520 --> 00:12:22,280 Speaker 3: Monday morning to accompany you on that public holiday with 208 00:12:22,320 --> 00:12:25,000 Speaker 3: a bit of news, but until then, have a great 209 00:12:25,000 --> 00:12:26,199 Speaker 3: weekend with your families. 210 00:12:30,400 --> 00:12:32,680 Speaker 1: My name is Lily Madden and I'm a proud Arunda 211 00:12:32,920 --> 00:12:37,720 Speaker 1: Bunjelung Kalkotin woman from Gadighl country. The Daily oz acknowledges 212 00:12:37,800 --> 00:12:39,959 Speaker 1: that this podcast is recorded on the lands of the 213 00:12:40,000 --> 00:12:43,520 Speaker 1: Gadighl people and pays respect to all Aboriginal and Torres 214 00:12:43,559 --> 00:12:46,480 Speaker 1: Strait Island and nations. We pay our respects to the 215 00:12:46,480 --> 00:12:49,280 Speaker 1: first peoples of these countries, both past and present.