For Women Scotland, law’s truths, and queering the ‘readily apparent (indeed, obvious)’ facts

While appellate courts often disown the role of being determiners of fact, they certainly construct facts, often making claims to (neutral, objective) truth in so doing. When courts socially construct and categorise facts, they reveal the juridical epistemic worldview through which deeper ‘fundamental facts’ are in turn construed. This article develops a critical queer analysis of judicial fact-making and explains how, in For Women Scotland, the Supreme Court constructed a cisnormative, heteronormative, and physiological essentialist juridical factual reality, based on misunderstandings of binary sex. It demonstrates this through critiquing and querying the court’s constructed facts, including the presumed existence of only two biological sexes, their physical features and capabilities, and the ‘chilling effect’ of questioning socially constructed sex binaries. It further explores how other facts are either denied (nonbinary identities) or ignored (intersex identities) within this worldview, and the legal and epistemic injustices that follow.