The UK’s Supreme Court has determined that the terms “woman” and “sex” in the Equality Act specifically refer to biological women and biological sex.
The campaign organization For Women Scotland (FWS) initiated a series of legal challenges, including one that reached the highest court in the UK, concerning the definition of “woman” in Scottish laws that require 50% female representation on public boards.
This legal dispute revolves around whether individuals holding a gender recognition certificate (GRC) that identifies them as female should be recognized as women under the 2010 Equality Act.
FWS has expressed concerns that not aligning the definition of sex with its “ordinary meaning” could have significant repercussions for sex-based rights and for “everyday single-sex services” such as restrooms and hospital wards.
However, legal representatives for the Scottish government argued to the Supreme Court in a November hearing that a person with a GRC is “legally recognized” as having changed their sex.
In their ruling, the justices unanimously sided with FWS.
Patrick Hodge, the Deputy President of the Supreme Court, along with four other justices, noted that the “central issue” pertains to how “woman” and “sex” are defined in the 2019 Equality Act.
He stated, “The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”
Campaigners from For Women Scotland (FWS) outside the Supreme Court this morning
During November’s hearing, Aidan O’Neill KC, representing FWS, told the justices that the Scottish ministers’ interpretation of sex, man, and woman in the Equality Act as referring to “certificated sex” — defined by the sex listed on a person’s birth certificate regardless of any amendments made by a GRC — is “incorrect and should be dismissed by the court.”
In response, Ruth Crawford KC, representing the Scottish government, argued that a person who becomes a woman “as a result of a GRC” is entitled to protections “just as much as those who are recorded as a woman at birth.”
She also asserted that if FWS’s challenge succeeded, the “inevitable conclusion” would be that trans women with GRCs would “remain men until death” under the Equality Act.
The court was informed that since the passage of the Gender Recognition Act in 2004, 8,464 individuals in the UK had obtained a GRC.
LGBTQ charity Stonewall expressed that the ruling is “deeply concerning for the trans community.”
Simon Blake, CEO of the UK-based charity, stated, “Stonewall shares the deep concern regarding the extensive implications of today’s ruling from the Supreme Court.”
Judges at the Supreme Court in London handed down their judgment on the legal definition of a woman
The legal matter first emerged in 2022 when FWS successfully contested the Gender Representation on Public Boards (Scotland) Act 2018 due to its inclusion of trans women in its definition of women.
The Court of Session ruled that altering the definition of a woman in the Equality Act was unlawful, as it addressed issues outside the Scottish Parliament’s legal jurisdiction.
Following this challenge, the Scottish government retracted the definition from the Act and issued updated statutory guidance, which provided advice on compliance with the law.
This guidance clarified that under the 2018 Act, the definition of a woman aligns with that in the Equality Act 2010, and stated that a person with a GRC identifying as female possesses the sex of a woman.
FWS contested this revised guidance, arguing that sex under the Equality Act should refer to its biological meaning, claiming the government was overstepping its authority by redefining “woman.”
However, the Outer House of the Court of Session rejected this challenge on December 13, 2022.
The Inner House upheld that decision on November 1, 2023, but granted FWS permission to appeal to the UK Supreme Court.
