Winds of Change: Defining Woman and Sex

After years of rancour and division, political leaders in the UK and NZ have welcomed developments in both countries that bring clarity to the gender debate.

Professor Kathleen Stock

A storm of headlines erupted on April 16 when the UK Supreme Court ruled that ‘woman’ in the Equality Act means biological female and ‘sex’ refers to biological sex, not gender identity as set out in a gender recognition certificate. It undoubtedly marks a pivotal moment in the wider gender debate.

The decision clarified that single sex spaces in the UK, including refuges and prisons, can exclude trans-women based on biological sex. Lord Patrick Hodge, delivering the judgment on behalf of the Supreme Court, stressed the ruling’s balance in protecting both sex-specific rights and gender reassignment rights.

For many, including the writer J.K. Rowling who helped to fund the legal action, and the Conservative Party leader Kemi Badenoch, the judgment has been welcomed as a beacon of legal clarity, while for others it has been viewed as a setback that potentially limits the rights of trans people.

The day following the judgment, the Daily Telegraph predicted that public bodies were now under pressure to “tear-up pro-trans guidance” relating to a raft of issues including who can access single-sex NHS wards, which police officers can carry out strip searches, and who can join female teams in elite sport. The UK Equality and Human Rights Commission also promised to rewrite its guidance to public bodies in the next few months.

British Prime Minister Sir Keir Starmer welcomed the judgment for giving, “real clarity” despite previously having taken a different position on the issue.

“I think it’s important that we see the judgment for what it is. It’s a welcome step forward. It’s real clarity in an area where we did need clarity. I’m pleased it’s come about. We need to move and make sure that we now ensure that all guidance is in the right place according to that judgment,” Starmer told ITV.

Yet this wasn’t the first sign of changing winds.

Weeks earlier, academic and philosopher Professor Kathleen Stock won a significant victory against her former employer, the University of Sussex, when it was fined £585,000 by the universities regulator for failing to uphold freedom of speech.

Stock is a recognised gender-critical feminist who had opposed self-identification laws when they were introduced in the UK through the Gender Recognition Act in 2004. Opposition from students and colleagues against Stock and her work began to gather momentum in 2018 and reached a crescendo in 2021 when the University and College Union added their voice to those of students and other groups calling for Stock to be sacked. Despite support from the university, academics and the Equality and Human Rights Commission, Stock resigned citing an inability to return to work due to bullying and harassment.

Following a three year investigation, the regulator said the Trans and Non-Binary Equality Policy Statement issued by the University of Sussex was considered in the context of existing legal duties on freedom of speech, as well as the European Convention on Human Rights.

The regulator found that the policy had meant staff feared disciplinary action and that Stock had changed the way she taught her course. As a result, it was “concerned that a chilling effect may have caused many more students and academics at the university to self-censor”.

In its report, the regulator found four elements of the policy to be “concerning”, including a requirement for course materials to, “positively represent trans people and trans lives” and an assertion that “transphobic propaganda… [would] not be tolerated”.

In a statement, the University of Sussex said the regulator had been determined to make an example of its case and, “entrench an extreme libertarian free speech position”, and that the university would be appealing the decision.

As those decisions were reverberating in the UK, similar changes were occurring in New Zealand. In late March, Associate Health Minister Casey Costello issued a directive to Health New Zealand to use “women” instead of “pregnant people” in health communications, citing the need for clarity when discussing conditions such as endometriosis.

The directive was supported by Prime Minister Christopher Luxon.

“The minister is right. We really want clear language and appropriate language, of course we need tailored variations where it’s needed,” Luxon said.

The winds of change reached Parliament on April 22 when New Zealand First proposed a member’s bill that seeks to define “woman” as an “adult human biological female” and “man” as an “adult human biological male” in New Zealand law.

Party leader Winston Peters described the bill as, “a win for common sense”.

“This is not about being anti-anyone or anti-anything. This is about ensuring we as a country focus on the facts of biology and protect the term ‘woman’ in law”, Peters said.

When questioned about the members bill, Luxon said National’s caucus would consider it if it was drawn from the ballot. However, he said he had already made his views clear that, “pregnant people, frankly, are women”.

“Let’s have some common sense about it, and let’s use some common sense language.”

Labour Party leader Chris Hipkins said that it was “unlikely” that Labour would support the bill.

---