–Arifur Rahman, Postgraduate of NYU School of Law and the University of Dhaka, & Sarthak Gupta, Judicial Law Clerk-cum-Research Associate at the Supreme Court of India; Lawyer and Researcher based in New Delhi.
On 16th April, 2025, the Supreme Court of the United Kingdom delivered its decision in For Women Scotland Ltd v. The Scottish Ministers, whereby the Court held that under the UK’s Equality Act, 2010 (hereinafter ‘Equality Act’), the meaning of ‘women’ is limited to biological women and does not include trans individuals who possess a Gender Recognition Certificate. The decision has been criticised for misinterpretation of the UK Parliament’s intention in the Gender Recognition Act 2004 by limiting the scope of legal recognition for trans individuals and jeopardising the UK’s compliance with ECHR, along with several practical (and harmful) implications affecting trans individuals around the UK. (see here and here). In this post, we argue that the UK Supreme Court’s decision serves as yet another illustration of why we need to remain skeptical towards law’s purported emancipatory role in advancing queer freedom. In understanding queer freedom, we share the view that queer freedom entails a multidimensional freedom that is transgressive and non-normative in nature. At its heart remains the idea of anti-essentialism: to be queer is to disrupt structure and system that essentialize identity, desire and pleasure into fixed categories (see generally here and here). In the For Women Scotland Ltd case, we observe the opposite.
The UK Supreme Court not only essentialises what it means to be a woman but also reifies the binary understanding of sex. To clarify the meaning of sex/women/man in the Equality Act, the Court asserts that these terms refer only to ‘biological sex’. The Court apparently finds ‘no good reason’ why the drafters of the Act would have intended to extend the sex-based protections to a (queer) group that is ‘heterogeneous’ and ‘complex’ [p 172]. It dismisses the idea that challenging sex stereotypes might be the very reason for such protections. The Court’s approach markedly underscores how, for queer people, the law does not necessarily present a veneer of objectivity as it favours cis-gender binary premised on a ‘biology-logic’ as the only legitimate meaning of sex. What becomes obvious here is that the law has the power not only to create and categorize its subjects but also to discipline them and that such power does not always advance queer interests. By bringing biological essentialism to the legal recognition of sex/gender, the Court helps sustain the very heteronormativity that constrains non-conventional sexual and gender freedom, instead of subverting it. Ultimately, the pendulum swings toward the mode of legal recognition (or clarification) requiring conformity to predetermined categories that inevitably fails to capture the fluidity and complexity of queer lived experience.
According to the UK Supreme Court, a definite and fixed understanding of the men-women category is required because ‘a variable definition is neither clear, constant nor predictable’ [p 191]. For further settlement of this matter, the Court reasons that provisions related to pregnancy and maternity, for example, make complete sense when we think of ‘women’ in terms of biological sex [ p 195]. Of course, a man with chest hair claiming to be pregnant and later identifying as a mother impairs our coherent vision of so-called biological reality. Yet, the ‘dissonance’ that the Court perceives lies not in those bodies but concerns ‘the gazers’, those who systematically interpret those bodies through a fixed male/female binary. The Court may choose to justify its stance in the name of ‘legal certainty’, but its reasoning reveals how the law and the legal system in our liberal democracies continue to fail to accommodate sexual and gender diversity in a meaningful way. When queer persons turn to the law to seek protection, they do not expect the law to uphold heterosexist notions but to allow their own identities to be recognized. Doing otherwise only strengthens a heterosexist grip on society, limiting law’s transformative potential to advance queer freedom. This is not to suggest that we should abandon legal strategy entirely, but rather that we maintain a critical inquiry into both the potential and limitation of the law in enabling queer flourishing.
The UK Supreme Court decision crystallises a fundamental paradox at the cornerstone of contemporary queer politics i.e., the simultaneous necessity and impossibility of legal recognition. While trans individuals need legal protections to navigate everyday life, these protections reproduce and reify the very categories that marginalise and subordinate them. The Court’s reading into biological essentialism demonstrates how liberal legal frameworks, despite their egalitarian rhetoric or cruel queer optimism, remain structurally committed to maintaining hierarchical binaries that exclude queer possibility, creating a ‘temporal drag’ where the legal process reinforces the normative past it claims to transcend. Given the current legal status of trans people in the UK, we are tempted to ask: if the law cannot accommodate queer freedom in ways that unsettle the status quo, should we instead look to alternative forms of solidarity, resistance, and normative pursuits that might better serve queers beyond the confines of legal recognition?
Suggested citation: Arifur Rahman & Sarthak Gupta, Queer Freedom and the Limits of Law: Lessons from For Women Scotland Ltd v. The Scottish Ministers, Int’l J. Const. L. Blog, June 18, 2025, at: http://www.iconnectblog.com/queer-freedom-and-the-limits-of-law-lessons-from-for-women-scotland-ltd-v-the-scottish-ministers/
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