The decision of the UK Supreme Court in For Women Scotland Ltd v Scottish Ministers [2025] is one that has generated a rapid response, from the photos of those celebrating the decision on the steps of the UKSC, to the massive wave of protest from trans people and allies. Within the legal world, it has unleashed a flurry of commentary, the excellent analysis by Crash Wigley being a notable example. As such, this post will not replicate Wigley’s analysis, but will instead draw upon and develop the point that she makes in her work: that there are a series of silences in the judgment. This is interesting when considered with the work of Louis Althusser, for whom silences are not accidental but reveal important tensions about the text.

This post seeks to provide an understanding of the UKSC decision using a Marxist legal perspective. As such, this post is less interested in the minutiae of the reasoning within the judgment but rather focuses upon three key points. The first is the silences of the texts, the second is the position of the silence in relation to the spectacle that has followed, and the final section will examine what this means for the prospect of challenging such decisions within the grounds of legal form.

This piece concludes that the legal form has rarely been an avenue which has produced the sort of gains for trans femininity that it did, briefly, for gender-normative gay and lesbian people. This is not an accident or historical mistake, but instructive as to the limitations of the legal form and its relationship to capitalism.

‘Silence=Death’?: Rendering silences explicit

The law is sometimes understood as a discipline of reading, re-reading, and reading out loud.  No doubt there is more to law than this, but it is a helpful starting point. Within this context, theories of reading become highly useful, in particular a body of literature that stems from the French Marxist Louis Althusser, who sought to understand Marx’s approach to classical political economists through a particular type of reading. It was not simply that classical political economists failed to see what was in front of them, but that they were not able to theorise it. As such what Marx did was offer a reading that did not simply point to what was visible and invisible, but the presences and silences within texts as being something significant that Althusser terms the problematic of the text.

The problematic renders certain concepts, objects and problems as ‘forbidden’.  Althusser argued that ‘[t]hey are invisible because they are rejected in principle, repressed from the field of the visible’. There are occasional glimpses of these concepts, but they remain ‘unperceived, […] an undivulgeable absence.’ In the words of Pierre Macherey, to be able to say anything at all, we must be silent on other things, and as such ‘This silence gives it life’. 

This point relating to silences becomes clearer when considering a significant set of silences within and around the Supreme Court’s recent judgment. The significance of biological sex is taken as read. Yet, questions that surround the concept of biological sex are not asked. If they were to be asked, no answer could be given, for as many biologists repeatedly stress, there is no way to comprehensively define ‘sex’ in biological terms.

Following the approach to reading set out above, this silence in the judgment should not be taken as a mere oversight, or a misreading of the available information. Were ‘biological sex’ to be questioned in the Supreme Court, that lack of an underpinning scientific basis would raise problems.

Anja Heisler Weiser Flower writes that those who claim trans woman are invented are ‘aggressively uninterested in acknowledging that cis women also continually lack many of those features’  that are claimed to be ‘dominant defining features which are supposed to be common to all women’. Simply put, there is a denial ‘that social domination determines the features that define sex’. Or, in other words, ‘that the selection and shaping of the features that define a woman/female are determined by social relations of domination.’ This idea of the ‘aggressively uninterested’ is useful in articulating the silence on this question. It is not that there is an accidental or inaccurate misunderstanding, but that that there is a silence that forms a functional part of the understanding. Specifically because it is impossible to truly articulate ‘sex’ as biological in a way that is not rendered as anti-trans.

To push this further, Flower specifically statesthat concepts such as biological sex are ideological:

‘That women are ‘clustered’ around the female is a bid to keep the social order intact. Gender is not simply a varied fabric to be draped over the stricter infrastructure of sex: sex is instead put together post hoc, to match the needs of gender. Female bodies appear female for the sake of sustaining an order that demands them to be so. The subordination of women requires a physical defect, the ‘mark of gender’, that is fabricated in our apprehension. The female is an ideology stitched up as an inevitability.’

The understanding rendered here becomes crucial for the silence and the unasked questions that exist within the case. That this is ‘stitched up as inevitability’ is crucial because it naturalises and feeds into a silence around such concepts. The concepts become inevitable and therefore silence becomes possible, which in turn fuels their supposed inevitability.

To return this to a particularly Althusserian phrasing and ask the question of the concept’s use, ‘What is meant by biological sex?’ The answer implied by the judgment seems to simply be trans exclusionary, with little positive content even possible to identify. Such an answer is an ideological one. Indeed, there is no answer that can be rendered to the question as doing so shows the ideologicalcontent of the concept whose question is unasked. It therefore cannot be asked from the problematic of the Supreme Court, as to do so would present significant challenges to the notions of neutrality that law is conventionally understood to have and preference for ‘ordinary meanings’ over ideological assumptions.

An incident from last year illustrates this point. A  mistake was made on the baby’s birth certificate, listing her sex as male, and were told that there was nothing that could be done. The rather upset father said ‘It’s horrifying that my daughter’s got to have male on her birth certificate when she’s a biological female. I can’t believe this accident is irreversible.’ This incident seems to present a very clear contradiction between the idea that the sex at birth is an administrative choice that can be made in error and not corrected, but also a supposedly scientific concept. In the eyes of the law (and using the Court’s own terminology) is this young baby girl a biological male or a biological female? To answer in any way shows the contradictory absurdity of such a categorisation.

The second silence is the utter silence of trans voices in the judgment in comparison to the groups that had a clear presence. This silence is clearly shown in the refusal to allow an intervention that former High Court Judge Victoria McCloud and the Good Law Project sought to make. As McCloud has said, ‘The basis is that the supreme court refused to hear me, or my evidence, to provide them with information about the impact on those trans people affected by the judgment and failed to give any reasons.’ Once more, this shows the silence that is present and pervasive within this judgment, not only of trans people as a totality, but specifically of trans women, around whom this case revolved.

Indeed, this is a point that McCloud makes: ‘There were protest groups speaking on behalf of women in this court case, but ordinary women were not actually represented as a whole.’ Alongside the silent (trans woman), there was a visible, that being the specific groups which were heard. Indeed, that it was specific interest groups speaking is not insignificant, given that ordinary women in general- be they trans or not trans- were not participants in the case. This is something that can be understood as almost inevitable due to the nature of judicial review: the form of asking and dealing with these questions in a legal setting of the court necessarily precludes inclusion of the general views of the public more broadly. There is therefore a connection between what is absent and what is present which, as Althusser writes, should not be read as accidental. It tells us something of the problematic.

What then, is the problematic (the unarticulated structure set out above) of the UKSC’s judgment? It is one that seeks to apply a supposedly strictly neutral analysis to what is fundamentally a political question, and one that can only be resolved through politics. I do not seek to explain the reasons that the UKSC used to make its decision. Rather, the claim is that by reading the silences and the visible as interconnected it is possible to construct an unarticulated second text which structures this first one. Therefore, the set of contradictions arise in this case show the unarticulated tension of the problematic to the text, a problematic which necessarily is unacknowledged but whose effects can be understood through this framework.

A spectacle is haunting Britain

The silence that has been outlined above, though, has not meant that others have not spoken and rendered explicit what is implicit in the judgment. This section will turn to how the silence above and the response that followed can only be understood as a response to a spectacle.  

The response from many was quick, with no better example than that that of Prime Minister Keir Starmer. Through a spokesperson, he stated that he no longer believed transgender women are women. Arguably the most important response, however, was the interim guidance given by the Equalities and Human Rights Commission, released late on a Friday, nine days after the judgment.

A series of policy changes directed at trans people have quickly ensued following the case but very specifically after the EHRC guidance: the British Transport Police announced that trans women would be strip searched by men; the Scottish Parliament has banned trans women from using toilets which prior to this they had been able to use, and in the world of private business, Barclays, previously a sponsor of Pride events, announced it would ‘not [be] allowing trans women to use female bathrooms.’

Two key, intersecting, points can be drawn from this response to the judgment. The first is that the response is almost entirely framed around the figure of the trans woman rather than trans people more generally. The second is the difference between the specifics of the court’s ruling and the far more general response that has taken over. Here, I want to propose that these two points can be conceptualised as spectacle, with trans misogyny performing a central role.

The question raised by some is whether the EHRC interim guidance is compatible with UK case law and statute. Whilst by definition not as visible, the fact that many large businesses have not responded to the guidance seems to illustrate a degree of hesitancy in accepting that the EHRC’s reading is definitive. Here, the point is less to agree (or disagree) with these readings but to ascertain why there is a perceived difference between some readings of the law and the guidance issued.

In The Society of the Spectacle, Guy Debord argues that ‘The spectacle is not a collection of images; it is a social relation between people that is mediated by images.’ Anne Neylon has invoked this concept to understand recent developments in asylum law, with the spectacle of the small boats playing a crucial role. Neylon notes astutely that the state plays a pivotal role in engineering the spectacle in question.  The particularities of the role of the spectacle in formulating asylum law present an interesting parallel when considering the spectacle of the trans woman in the response to the judgment.

Here I want to draw attention to the treatment of the trans woman and to transmisogyny in particular rather than transphobia more broadly. Julia Serano argues that the figure of the trans woman has been ‘ridiculed and despised’ due to the position that trans women occupy within the intersecting oppressions of ‘transphobia, cissexism, and misogyny.’ That there is a dismissive accounting of trans women as hypersexualised, hyperfeminised, and objectified. The spectacle that trans women become in the media and culture is one that is oscillating between and containing these specific understandings, presenting the trans woman as deceptive or pathetic (or both). Jules Gill-Peterson writes of the relationship that ‘Feminizing people, regardless of how they see themselves, is the pretext for dehumanizing them.’ What both these insights show is that there is a specificity to the way in which trans femininity is turned into a spectacle and becomes a justification for oppression against trans femininity. 

Thus, the particular focus upon the figure of the trans woman following the judgement is not an accidental one. It has a clear origin and name: trans-misogyny. In a similar way to how the spectacle is a key driver of policy on migration, that creates and responds to an image (the spectacle), so too does this dynamic occur in trans policy. What this means is that the silence of the UKSC matters less than the response that has arisen across all sectors of life, motivated and explained through the spectacular image of the trans woman created by trans misogyny. This explains why it is that the response is so focused on trans women, even though the effect of the response clearly extends beyond just trans women, encompassing trans men and potentially all gender-nonconforming people. The justification of all of this is positioned and explained through the spectacle of the trans woman.  To dismiss the subsequent policy response to the court’s ruling as unfounded or illegal fails to articulate the fact that the spectacle is motivating the response. And this spectacle takes on a life of its own beyond the underlying social relations – of which law is a part. The actual specificities of the judgment become far less important than the spectacle, which takes on a life of its own.

To Law! The cause of, and solution to, all of life’s problems?

A final point can be made concerning the position of law generally in relation to trans oppression. Whilst there has been a large and very visible mobilisation of organisations such as the Good Law Project, there hangs over this legal response a further silence. This concerns debates as to whether the way to push back against the Supreme Court’s decision is through legal challenges, or seek legislative reversal of it, and what are the problems with each strategy. To frame it in a different way: what if the institutions and structures that gave rise to this situation, are unable to remedy this situation? And indeed, what happens if the law does not – and cannot – resolve this? Either way, there is a need to interact with law in a very careful way.

This section will draw on a few key points that illuminate that this is not simply a technical/procedural question, but that there are structural limitations to challenging law through the law. David Kennedy, in his critique of international human rights, points to the contradiction that exists in challenging the state through human rights law, as such challenges are structured as between the rights holder and the state, which necessarily results in the centring and reification of the state. As is pointed out by Jules Joanna Gleeson and Elle O’Rourke, and explored by Gill-Peterson, the state is often a crucial modal point in the oppression which is faced by trans women. Therefore, a challenge to state oppression which requires an appeal to the state for emancipation, is clearly contradictory.

A second point which Kennedy advances relates to the allocation of resources and the strengthening of the legal form, which are intimately intertwined. The use and mobilisation of struggle through legal avenues necessarily means that resources are diverted away from other potential uses and towards legal challenges. The money that is raised to challenge decisions through legal means is money that is taken from more activist or community-based organisations, or from the people who are directly impacted upon by the decisions.

Challenging decisions through the courts, as Kennedy writes, strengthens lawyers and the legal form. It empowers the lawyer at the expense of others (such as activists) whose work may lead to a more emancipatory project than that of the lawyers. Resources that are able to be raised and allocated are not infinite, particularly when dealing with a tiny group of people whose average wage is far lower than that of non-trans people. Therefore, to allocate so much of the available resources to the paying of legal fees is a question of strategy that must be seriously considered before it is endorsed.

This requires consideration of the legal form itself. Kennedy writes that the human rights movement has a legal focus and views the legal apparatus as the way to right wrongs and as such is attached to the legal form. There is no doubt that here, where the wrong has arisen from the legal machinery itself, this is a vital criticism. Robert Knox has argued that a key flaw of  human rights is that law renders these questions as simply a clash of rights. Within For Women Scotland (and in the external spectacle) the clash is often constructed as between ‘trans rights’ and ‘women’s rights’.  The framing of the issue as a balancing act between two sets of rights that are in contradiction gives the appearance that there is an application of neutral legal standards that results in a non-politicised decision. Yet, this clearly is not the case. Not only does this construction present a false dichotomy between women’s rights and trans rights, but in doing so, it fails to place the case within an understanding of the ‘broader political and economic struggle’.

This point of broader economic struggle underscores the need to analyse these structural limitations of law and using the law for trans liberation within the context of capitalism. There is a growing body of work from a transgender perspective which positions itself very consciously and clearly within Marxist thought. An excellent example is the collection of essays produced in Transgender Marxism which offers an insight into the fact that the oppression faced by trans people is experienced through the broader oppression of the working class under capitalism.

Here Gleeson and Elle O’Rourke write that the state is ‘Still adopting a supposed impartiality, still supporting social oppression’. This point by Gleeson and O’Rourke resonates with the previous points on the limitations of law. Specifically though, this helps highlight that the state is not a neutral party, but one which upholds and enables oppression. It is from this that they highlight a particular liberal response to transphobia, which does not look to broader oppressions and fails to see the connection between trans oppression and capitalism. As they write of the oppression faced by trans people and the liberal response that often occurs: ‘Our domination by state bureaucracy, by landlords and employers, is often enough treated as a given, to be reclad with sensitivity training workshops and pronoun go-rounds.’ This liberal response of official sanctioning and acceptance of trans people does not deal with the core of the oppression, nor does an institution of that oppression- the law- offer a way out of the very oppression it gives form to. The core oppressions faced are ones intimately connected to capitalism which are never contested by the legal form.

Yet, this is not all as the regulation of bodies is one that capitalism requires to ensure its own continuation. As Gleeson and O’Rourke write: ‘Capitalism as a mode of production requires circuits of circulation, consumption, and social reproduction. Far from a marginal concern, the regulation of gender and sexuality must be understood as integral to capitalism as it survives across time.’ Placed in this context then, the oppression of trans existence takes on a particular meaning. That it is core to capitalism to regulate sex and sexuality means that it does not become a surprise that such regulation takes place through the primary structure of bourgeois social regulation – that is, legal regulation. Therefore, there are structural limitations that arise because of capitalism. This point regarding the regulation of sex/sexuality is core to the analysis of Gill-Peterson in her work on tracing the history of trans misogyny, in which she points to the centrality that law takes in enforcing this oppression. In the context of this piece, we can see from our first quote by Flowers, stating that sex is a matter of social regulation, how the silence of biological sex becomes a feature that is intimately tied to capitalistic sexual regulation. Yet, these are all questions which are obscured when seeking to challenge such oppressions through the very structures which give rise to, and enforce, the oppressions.

What is to be Done? Concluding thoughts

This piece has placed For Scotland Women Ltd v The Scottish Ministers and the response derived from it within a broader conceptual framework. It has argued that the silences within the judgment are not accidental but shaped by the supposedly apolitical problematic to which the UK Supreme Court holds. These silences operate to obscure the political character of legal questions, and to present the two as unrelated. The silences of the UKSC gave rise to the spectacle which has transpired since the judgment, which can be understood as one that is connected to the spectacular image of the trans woman as a motivating logic of this wider response. Finally, it has shown the limitations of the legal form as a ground for liberation of trans femininity, the restricted avenues which are offered by the state to rectify this oppression which that same state has unleashed. 

When read through this lens the disparate parts of the judgment and the response can be read in totality, not as random, separate events. When read in totality what becomes clear is the inter-connections that exist between the silences and the spectacle, and between the law and the oppression of trans femininity. Law has played and continues to play a crucial role in this oppression, not by accident but because of a set of structural factors. What all of this means is that to seek to challenge such oppressions through the law is a task that has potentially insurmountable limitations. What can be offered as a resolution is not a ‘correct interpretation’, a new rights challenge, or even a new law, but something which challenges the very root of these social oppressions.

Penelope Cassandra Webb is a PhD Candidate in the UK and is writing under a pen name

(Suggested citation: P. C. Webb, ‘Silences, Spectacle, and the Limitations of Law’, U.K. Const. L. Blog (5th June 2025) (available at https://ukconstitutionallaw.org/))