In a landmark judgment, after years of controversy, the Supreme Court handed down its decision in the case of For Women Scotland v Scottish Ministers today. The issue the court had to determine was enormously significant, namely the meaning of ‘woman’ and ‘sex’ in the Equality Act 2010. In a detailed and compelling ruling, the UK’s top court unanimously concluded that the terms refer to biological sex.
The case arose following a decision by the Scottish government in 2022 to introduce revised statutory guidance which stated that a trans woman with a gender recognition certificate (GRC) would be considered a woman for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018 (which was designed to increase the proportion of women on public boards).
A GRC is a document that allows trans people to change their gender legally. The Gender Recognition Act 2004 established that a person is entitled to receive a GRC if they provide evidence that they have lived as their acquired gender for two years and intend to continue to do so until death.
The reason the guidance was so contentious is that it claimed that, under the Gender Representation on Public Boards Act, the definition of a woman was the same as in the Equality Act 2010. It went on to state, however, that a person with GRC recognising their gender as female was considered a woman for the purposes of the 2018 Act. For Women Scotland, a feminist voluntary organisation, challenged the guidance on the grounds that the meaning of ‘woman’ under the Equality Act 2010 meant ‘biological woman’ and that a biological male with a GRC in the female gender should not be considered a woman under that Act.
One might have thought that the word ‘woman’ would lose all its meaning if any other definition were used. However, the Scottish government contended that the definition of a ‘woman’ under the Equality Act refers to what it described as ‘certificated sex’ (meaning that it includes trans women with a GRC). This submission was accepted by the Scottish courts – both the Outer and Inner Court of Session rejected For Women Scotland’s challenge. This led to the appeal before five justices of the Supreme Court in November 2024.
The Supreme Court’s judgment noted that while the Gender Recognition Act 2004 provides that people with a GRC are to be considered their ‘acquired’ gender ‘for all purposes’, that Act also contains a provision which allows the rule to be disapplied. The Court concluded that relevant provisions of the Equality Act 2010 do exactly that – and that the Equality Act would be rendered incoherent and impracticable to operate if a different interpretation were accepted.
The Supreme Court concluded that, as a matter of ordinary language, the provisions relating to sex discrimination in the Equality Act can only be interpreted as referring to biological sex. For example, the provisions relating to pregnancy and maternity are based on fact. As a matter of biology, only biological women can become pregnant. Therefore, these provisions are unworkable unless ‘man’ and ‘woman’ have a biological meaning.
In reaching its conclusion, the Supreme Court considered a number of other factors. It noted that the approach adopted by the Scottish government would cause issues for service providers which offered single-sex and separate services and could also impact on women’s fair participation in sport. It also observed that the ‘certificated sex’ interpretation promoted by the Scottish government would weaken the protections given to lesbians (for example, by interfering with their ability to have lesbian-only spaces and associations).
In addition, it stated that the proposed ‘certificated sex’ approach would give rise to two separate sub-groups amongst trans people – giving those who possess a GRC greater rights than those who did not. This would be problematic given that employers and others who owed duties under the Equality Act are not permitted to enquire whether someone has a GRC (as such information is private). The Supreme Court also stated that it was important that the Equality Act was interpreted in a clear and consistent way.
The judgment does not remove protections from trans people. The Supreme Court highlighted the fact that they remain protected from discrimination on the ground of gender reassignment. It was also clear that trans women were protected from sex discrimination if that discrimination results from being ‘perceived as a woman’.
We should be relieved that the Supreme Court has cut through much of the toxic rhetoric and taken such a common-sense approach to what should be straightforward issues of biology. Many of the issues it considered have been long-running concerns. It is notable that two women (Lady Rose and Lady Simler) were amongst the three judges who authored the joint judgment of the court.
Some might think it is rather shameful that many courageous women (and a few men) have been demonised and traduced for raising their doubts about the approach taken by the Scottish government over the years. It would no doubt be too optimistic to hope that their critics might find it rather harder to look in the mirror after this morning’s ruling.
It has been reported that the UK government has indicated that the judgment brings ‘clarity and confidence’ for women and services such as hospitals, refuges and sports clubs. Labour is no doubt thankful that it will not be forced to revisit this issue and that the fallout from the judgment will be left in the lap of the SNP-led government in Scotland.
Sadly, it is unlikely that this ruling will see an end to the conflict between some overzealous trans advocates and those who have legitimate concerns about, for example, the protection of women-only spaces. However, now that a measure of good sense has been restored to the debate by the Supreme Court, perhaps we could now address some of the wild vitriol aimed at those who supported this challenge – and go back to referring to those who have frequently been dubbed ‘gender critical women’ and ‘terfs’ simply as women.
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