A small response to the nonsense about the UK Supreme Court case

The flood tide of awful reporting is far too much to respond to. However this letter (sent this morning) covers a recent Spinoff article that misrepresents the situation.

Letter to Madeleine Chapman at the Spinoff. Sadly despite the misleading nature of many of the statements in this opinion piece, a complaint to the Media Council would likely not be upheld because the Council lacks the capacity to investigate the claims made in published articles.

Dear Madeleine,

Paul Thistoll’s opinion piece published last week contains a number of errors of fact and an omission. Mr Thistoll is the self-styled head of the campaign group Countering Hate Speech Aotearoa. Readers might expect to understand his affiliation.¹

The article is NZ First wants to copy the UK in defining ‘woman’. It makes no legal or human sense and is published here. https://thespinoff.co.nz/politics/23-04-2025/nz-first-wants-to-copy-the-uk-in-defining-woman-it-makes-no-legal-or-human-sense

I would like to see corrections of the false information described below.

Extracts from the article are in bold.

The implications of this decision are significant: it entrenches biological essentialism into the heart of UK anti-discrimination law.

Incorrect

The UK Equalities law has protected women on the basis of sex since its inception in 2010. Here is Chairman of the Equalities and Human Rights Commission at the time Trevor Phillips explaining that it was never the intention, when introducing human rights protections for gender reassignment that they overwrite the sex-based rights of women.

Perhaps most tellingly, no trans voices were permitted to intervene in the hearing.

Incorrect

Whether there were transgender intervenors is unknown but no transgender organisations offered themselves as intervenors. Akua Reindorf UK Equality and Human Rights Commissioner had clarified this misinformation when it was promulgated in the UK. She wrote in an article in the Times in her official capacity as KC and Commissioner. She wrote:

“Of the many trans advocacy organisations in the UK, none applied to intervene. But their case was made thoroughly by leading practitioners acting for the well-established and reputable charity Amnesty and for the Scottish government. It's very unusual for an individual to get permission to intervene. The Scottish Govt and Amnesty represented the transactivist legal arguments. We don’t know whether trans people were involved in giving instructions to the lawyers who acted for those parties.”

“A proposed intervener must show that they can make a distinctive contribution to the legal argument and assist the court with issues that go wider than their personal interest. Thus an individual is never likely to get permission, and it is advisable instead for applications to be made by representative organisations, such as charities or advocacy groups.”

The judgement (sic) proceeds in a vacuum, disconnected from the people most affected. This absence is not neutral. It helps explain why the Court treated biology as the sole and stable marker of identity. But identity is not reducible to chromosomes.

Incorrect

Women are the most affected when law that affects them (us) has become unclear and there are upwards of 30 million women in the United Kingdom compared with a few tens of thousands of transgender people. Lesbian women are particularly impacted by the decision which recognises their right not to have males defined as lesbians and afforded rights as lesbians As the judgment said “people are not sexually oriented towards those in possession of a certificate.”

Without clarifying that the purpose of sex discrimination is on the basis of sex the people protected as lesbian are a heterogeneous group of women and men who claim they are women as well as women who “become” lesbian if their male sexual partners say they have become women. It’s not a vacuum. It is a requirement of good law that there is clarity of purpose. If the Law Lords and Ladies had come down on the side of deciding that sex was a case of self-definition then both sex and sexual orientation would have lost clarity of meaning. What could be more impactful than losing the meaning of a word that describes you. If that decision had been made whether you are straight, lesbian or gay would become dependent on the possession of a certificate (or not) by one or more parties in a relationship.

Image taken from a post by substack author Void If Removed https://www.voidifremoved.co.uk/p/straight-on-paper

It’s also historically inaccurate to treat gender fluidity as some modern or imported concept. In pre-colonial Māori society, gender was understood as more expansive than Western colonial norms.
These identities were not only accepted, but integrated into social and cultural life.

False

Ms Kerekere wrote in her PhD Thesis that “there is not yet evidence that Māori had diverse gender identities or that takatāpui played specific roles in pre-colonial times; notwithstanding any roles which have developed over the past 150 years. ( See Page 82 of Dr Kerekere’s thesis.)

It doubles down on a model of sex that is neither inclusive nor scientifically accurate.

Incorrect

No explanation is required. The statement is clearly nonsensical.

The judgement’s (sic) essential mistake is to treat biology as the bedrock of human rights. But rights are grounded in how people live, how they are perceived and how they are treated. Gender is what drives discrimination. Gender is what shapes experience. And gender is what must underpin human rights protections.

False

Human Rights law related to sex is not based how people live or how they are perceived. Human Rights law on sex is now based in the inherent and indelible characteristic of sex. To say otherwise is deeply insulting. Men are responsible for most of the violent crime in society irrespective of how they “identify”. Women are not abused or raped based on their identity as women, or their stereotyped behaviour, but on their sex. I hope you would agree that women in Afghanistan are not kept in purdah because of their identities. Does the writer wonder why, if this were the case, they would not all identify as male and avoid their misfortune?

This is in stark contrast to Aotearoa, where sex self-ID is the implemented paradigm (interestingly, it was Tracey Martin of NZ First who initially shepherded those reforms through parliament before handing over to Jan Tinetti).

False

Ms Martin did not shepherd the bill, but deferred it, and it remained deferred until after the election where Ms Martin and NZ First failed to be re-elected. She deferred the bill because of its impacts on women, such as “the concern that if a male that had been remanded in custody to a male prison, could they go online and actually change their gender and would that create another issue. And the answer is, people don't know" and “because it had not been consulted unlike the 4 months of consultation in the UK.

When asked if she believed the original bill would have had implications for women, Ms Martin, "I think we need to make sure that isn't the case".

In the UK, the judgement (sic) is the latest expression of a global backlash against the inclusion of trans people in public life.

Incorrect

The judgment specifically warns against such an assessment. It said

This interpretation of the EA 2010 does not remove protection from trans people, with or without a GRC. Trans people are protected from discrimination on the ground of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex. In the light of case law interpreting the relevant provisions, a trans woman can claim sex discrimination because she is perceived to be a woman. A certificated sex reading is not required to give this protection [248]-[263].

In writing this I am reminded of the Simone de Beauvoir quotation “The oppressor would not be so strong if he did not have accomplices amongst the oppressed.”

I look forward to seeing some corrections.

Regards

Jan Rivers

1. I was wrong on this point. Mr Thistoll’s byline does link to a brief description.