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The supreme court’s ruling that the legal definition of a woman is based on biological sex “has been misinterpreted”, Brenda Hale has said.
Speaking at the Charleston literary festival in East Sussex, the first female president of the supreme court said the last thing she wanted now that she had retired was to “undermine the court and its authority by being critical of its decisions”.
Lady Hale said: “But I can be much more critical of the way it’s been received. Because there’s nothing in that judgment that says that you can’t have gender neutral loos, as we have here in this festival.” She applauded the fact that Charleston’s organisers went ahead with that decision “despite the fact that there are people saying that you can’t do that”.
The judgment “says nothing about that”, she added. “It’s for other people to work out the other parts of the Equality Act, which permit but do not require services to be provided differently for people according to sex.”
The 80-year-old, who is a member of the House of Lords, also questioned what was meant by “biological sex”.
“I was with some doctors last week who said there is no such thing as biological sex,” she said. “There are plenty of things to quarrel with” about the judgment, but Hale said her main concern was the “very binary reaction that there has been to it”.
The “proper answer to all of this”, she believed, was “somewhere in the middle. So that’s what I very much hope we will come out with when people have calmed down and start being sensible about things.”
Hale’s fellow panellist, her daughter Julia Hoggett, the CEO of the London Stock Exchange, said: “And it’s the duty of society to foster that conversation now.”
Hale said: “Yes, it’s on all of us to foster it.”-
Hoggett, the first out gay person to be employed in her role, has previously spoken about the importance of LGBT+ representation in the workplace. When asked by an audience member whether trans women should count towards gender quotas on company boards, she said: “The idea that the trigger for all of this case was whether trans women should represent women in the representation of women on boards, I find heartbreaking.”
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She said she would love to have “a talented trans woman sitting on a board of mine”.
Hale became the subject of public discussion in 2019 when she delivered the supreme court’s decision that Boris Johnson’s advice to the queen that parliament should be prorogued for five weeks at the height of the Brexit crisis was unlawful. Much was made of the fact that she was wearing a brooch in the shape of a spider, with some speculating that the fashion choice was in reference to a song by The Who called Boris the Spider, who comes to a sticky end.
“The spider brooch was a mistake,” she told the Charleston audience, had she known the attention it would attract, she “would have worn a frog”. She had not heard Boris the Spider until a friend sent her a YouTube video the day after the judgment – she found it to be “not a very tuneful song” – but if she had known about its existence she would not have worn the brooch, “because that was not the object of the exercise”.
Hale said: “The object of the exercise was to uphold constitutional principle and the rule of law, and to say to the government there are things you cannot do. It’s a simple message. There are a few things, not very many, but there are a few things you cannot do, and it’s our job to tell you that.”
