Thinking tool: Suspect mess or misalignment, not malice

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Adam Jones

When a heavily scrutinised public decision looks obviously bad, it's almost always either:

  1. more complex up close; or
  2. the incentives point the wrong way.

This is perhaps an alternative to Hanlon's razor, which is:

"Never attribute to malice that which is adequately explained by stupidity."

An example:

The UK Supreme Court's 2025 ruling in For Women Scotland v The Scottish Ministers held that "sex" in the Equality Act 2010 means biological sex (the judgment's phrase is "the sex of a person at birth"), so a gender recognition certificate doesn't change which sex-based provisions apply to you.

This meant trans people can be required to use the "wrong" bathrooms or changing rooms, e.g. a trans man now has to use the female changing room, and vice-versa.

A dark door with a scrap of lined paper taped to it, hand-lettered 'ANIMAL SHITHOUSE'

Complexity up close

A lot of the reaction treated this as the courts being anti-trans, but the real version is perhaps more boring.

Courts were asked what an existing statute means, not what it should say. The Equality Act's definitions of "man" and "woman" are awkward, and most of the judgment compares reading 'sex' as 'certificated sex' vs 'biological sex'. They found the act was only consistent read as biological sex, so held that was the intended meaning.

The pregnancy provisions are the clearest example. These are written to cover only women. A trans man can become pregnant: under certificated sex he'd be male, and unprotected from discrimination over it; under biological sex, he's protected. Similarly, certificated sex removes the duty to identify "risks specifically affecting women" for health and safety purposes, such as radiation rules with different dose limits by sex.

The resulting situation still seems bad for making single-sex spaces make sense, but the judgment itself is defensible.

Misaligned incentives

To fix this you'd need to update the Equality Act. The court more or less says so, noting that the equalities regulator had already told the government there were problems and called for the Act to be amended (para 247).

This is where the incentives come in: that change is exactly what no self-serving politician wants to touch with a 10-foot pole. There's little electoral upside and the topic is charged. So the predictable equilibrium is that everyone complains and nobody fixes it.

Conclusion

I don't have a satisfying answer here. But "the law is a mess and fixing it is politically radioactive" explains what happened; "the judges are bigots" doesn't.

And seeing the truth helps you find the levers for the change you want.

This is part of my thinking tools series. Also consider: