Summary
When the law is an ass - how not to exclude trans women from women’s conferences and posts.
When the law is an ass – how not to exclude trans women from women’s conferences and posts.
When the law is an ass … good lawyers think laterally.
The For Women Scotland judgment of April 2025 is a legal absurdity that ignored Parliament’s will in enacting both the Gender Recognition Act 2004 and the Equality Act 2010.
It misstates legal principle, is internally inconsistent and puts the UK in breach of its international obligations. It has resulted in absurdities such as trans women being excluded from the Women’s Institute, trans girls from Girlguiding, ridiculous situations about toilet use in service delivery locations and workplaces, and (the subject of this article) long-standing political trans women being excluded from women’s posts and conferences.
Labour could put the situation right in a trice, but they don’t have the courage to do so and have relinquished their position as the party of social justice to the Greens. The current UK interpretation will not survive a trip to the European Court of Human Rights in Strasbourg, but that will take time.
When the law is an ass – what can be done in the meanwhile?
We have had silly and unworkable laws before. I am old enough to remember Sunday trading in the UK before the Sunday Trading Act 1994, when the previous 1950 Shops Act held sway. On a Sunday it was lawful to sell a pornographic magazine but not a bible. The unlawfulness of selling furniture on a Sunday – just when working folk might have time to view it in those far-off pre-internet days- resulted in ‘creative retailing such as selling a carrot for £100 and giving a sofa away free with it. Eventually retailers took to ignoring the Sunday trading restrictions and courts refused to enforce them. The 1994 Act preserved the right of workers not to work on a Sunday and swept away the nonsense,
Much the same ‘creative thinking’ is now coming to service providers and workplaces. Gender neutral toilets are fast replacing split facilities as the law, misinterpreted by the UK Supreme Court, bites, and building controllers find ways not to be sued by trans people or those who work to humiliate and exclude them.
What then can be done about the growing exclusion of trans women from women’s conferences and posts reserved for women?
When the law is an ass – the answer is actually straightforward, if a little surprising.
The legal difficulty is in restricting access only to ‘women’ as defined by the Supreme Court, and so having to exclude trans women. The answer is to open such posts and access to all, including all men.
Before you spit out your tea at that proposition, a condition can be applied that candidates or delegates are knowledgeable and experienced in women’s affairs. There may be a rare few cis men who would meet such a condition. I can think of one cis man known to me who has many years of service to the women’s sector following the loss of his daughter in tragic circumstances many years ago. Many trans women would also qualify.
One might argue that such a condition could indirectly discriminate against any men so excluded. It would, however, be easily justified (and so rendered lawful) as a means of meeting the purposes for which the relevant post or conference is intended to consider. So there it is: an out-of-the-box solution. Discrimination is always fact-specific, and organisations wishing to be trans-inclusive will need to take their own advice to ensure this solution works for them, but it is likely a viable option.
Just make sure you consult lawyers who can think creatively.
How simple it would be if we had politicians with integrity and courage.
Hee-haw!
Robin Moira White
13 September 2026
