Supreme Court rules definition of woman in Equality Act refers to ‘biological women’
The definition of a woman and sex in the Equality Act relates to “a biological woman and biological sex”, the supreme court has ruled as it unanimously allowed an appeal from gender critical campaign group For Women Scotland.
Key events
Delivering the judgment of the UK supreme court, Judge Lord Hodge said the “central question” is how the words “woman” and “sex” are defined in the 2010 Equality Act.
He said:
Do these terms refer to biological woman or biological sex, or is a woman to be interpreted as extending to a trans woman with a Gender Recognition Certificate?
The unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex”.
In an 88-page ruling, Lord Hodge, Lady Rose and Lady Simler said:
The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary, a person is either a woman or a man.
Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men.
Although the word ‘biological’ does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman.
These are assumed to be self-explanatory and to require no further explanation.
Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group.
During the supreme court ruling, Lord Hodge, sitting with Lords Reed and Lloyd-Jones alongside Ladies Rose and Simler, said the “central question” is how the words “woman” and “sex” are defined in the 2010 Equality Act.
He continued:
The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.
During the hearing in November, Aidan O’Neill KC, for For Women Scotland (FWS), told justices the Scottish ministers’ position that sex, man and woman in the Equality Act refer to “certificated sex” – as the sex on a person’s birth certificate whether or not amended by a gender recognition certificate (GRC) – is “just wrong and should be rejected by the court”, reports the PA news agency.
But Ruth Crawford KC, for the Scottish government, said a person who becomes a woman “in consequence of a GRC” is entitled to those protections “just as much as others enjoy those protections who are recorded as a woman at birth”.
She also said the “inevitable conclusion” of the FWS challenge, if it were successful, would be that trans women with GRCs would “remain men until death for the purposes of the Equality Act”.
The court was also told that since the Gender Recognition Act was passed in 2004, 8,464 people in the UK had obtained a GRC.
When opening the supreme court judgment on the appeal by For Women Scotland over the legal definition of woman, Lord Reed called on all parties to respect the “dignity” of the court.
He said:
Some people will be pleased and others will be disappointed.
Whatever your feeling may be, please respect the dignity of these courts and remain silent until the court is adjourned.
Lord Hodge then began delivering the judgment.
Lord Hodge: ruling should not be considered a triumph of one group over another
UK supreme court judge Lord Hodge, who delivered the ruling today, said:
The unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.
But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.”
Scottish Trans has reacted to the UK supreme court ruling, urging people “not to panic”. On Bluesky, the charity, wrote:
FWS have won their case against the Scottish government. We will be reading the judgment as quickly as possible so we can properly understand what the court has decided today.
We’d urge people not to panic – there will be lots of commentary coming out quickly that is likely to deliberately overstate the impact that this decision is going to have on all trans people’s lives. We’ll say more as soon as we’re able to. Please look out for yourselves and each other today.
Supreme Court rules definition of woman in Equality Act refers to ‘biological women’
The definition of a woman and sex in the Equality Act relates to “a biological woman and biological sex”, the supreme court has ruled as it unanimously allowed an appeal from gender critical campaign group For Women Scotland.
Libby Brooks
A possible outcome of the case is that the court will agree with the previous interpretation of the law as it stands, but suggest parliament considers amending the Equality Act to deal with these previously unforeseen consequences.
This was promised by Kemi Badenoch during last year’s general election campaign.
Earlier this year the Guardian reported that Labour had quietly shelved its plans to make it easier for people to legally change their gender amid concerns about the rising popularity of Nigel Farage’s Reform UK.
But the government remains committed to a trans-inclusive ban on conversion practices, which is expected to be brought forward within months.
Supreme court judges begin handing down their judgment
Judges at the UK’s highest court have begun handing down their judgment on the legal definition of a woman.
The supreme court ruling follows a series of challenges brought by For Women Scotland (FWS) over the definition of “woman” in Scottish legislation mandating 50% female representation on public boards.
The dispute centres on whether or not somebody with a gender recognition certificate (GRC) recognising their gender as female should be treated as a woman under the 2010 Equality Act.
You can listen to the judgment via the live stream at the top of this blog.
How could the ruling change life for women and trans people in Scotland, England and Wales?
Libby Brooks
The Equality Act already allows transgender women to be excluded from women-only groups and services, such as refuges, prisons or clubs – even those holding a gender recognition certificate (GRC) – if it is “a proportionate means of achieving a legitimate aim”. For example, Edinburgh Women’s Aid announced recently it would no longer let transgender women access its services.
But For Women Scotland (FWS) is concerned that, if it loses, using those exemptions would be made more complicated for women-only groups because a trans woman, deemed legally a woman, would therefore able to claim sex discrimination.
Susan Smith of FWS said a victory “would put the protected status of sex beyond all doubt.
“A ruling in our favour would clear up any ambiguity about the provision of single-sex spaces and services under the Equality Act and enable providers to act with confidence.”
But trans-inclusive campaigners questioned this narrative of simple clarification, saying that if the supreme court allowed the appeal it would be going against 15 years of interpretation of the law, and would also undermine the premise of the Gender Recognition Act, which was to give legal recognition to an individual’s acquired gender.
Whatever the outcome, it will not change the law, of course, but in its aftermath there are likely to be further calls to revisit the Equality Act.
The Equality and Human Rights Commission, the watchdog that enforces the 2010 act, argued for this in its own intervention in the case, suggesting MPs had not appreciated the consequences for women and lesbians of the law viewing a transgender woman with a GRC as legally female.
But Amnesty International, the only trans-inclusive organisation to intervene, raised concerns that this case could be the “thin end of the wedge” in undermining other rights.
If the legal sex of trans people with a GRC were reversed, it would result in trans people missing out on equal pay and sex discrimination rights, for example. In practice, it would affect a minority of trans people in the UK as only about 8,000 have applied for a GRC over the past 20 years.
More significant, suggest trans advocates, is the ruling’s contribution to a wider atmosphere of hostility, resulting in many trans people already self-excluding from public spaces.
Steph Richards, who runs the advocacy organisation TransLucent, predicted that legal actions such as this one would “result in trans people going back to live in stealth”.
A live stream of today’s UK supreme court session, which will begin shortly, has been added to the top of this blog. You may have to refresh the page to see it.
Libby Brooks
Wednesday’s judgment concludes court action by For Women Scotland (FWS) over Holyrood’s Gender Representation on Public Boards (Scotland) Act 2018, which was aimed at improving gender balance.
An amendment to the SNP government’s bill, brought by a Scottish Labour MSP, expanded the scope of the legislation to include all trans women, whether or not they had applied for a GRC.
FWS launched a judicial review, arguing that Holyrood had gone beyond its competence by using such a wide definition of “woman” and the inner court of session in Edinburgh agreed.
Scottish ministers revised the statutory guidance, which stated the new law would follow the Equality Act by including transgender women who had a GRC within the definition of “woman”.
FWS launched another judicial review, which was dismissed, and after further appeals brought the case to the supreme court. Its crowdfunder has so far raised £230,000, including £70,000 donated by the Harry Potter author and activist JK Rowling.
Other prominent campaigners, including Sex Matters, which was founded by Maya Forstater after she won an employment tribunal that found she had been unfairly discriminated against because of her gender-critical beliefs, were granted leave to intervene in the case.
No trans people were represented during the two days of legal argument last November. The retired judge Victoria McCloud, who changed her legal sex more than two decades ago, was refused permission to be heard in the case.
She said:
Not permitting trans people to be heard was one of the boldest decisions made by this court. I am confident an appeal would be pursued at an international level if the appeal was allowed. I doubt that will be necessary.
What has the supreme court been asked to rule on?
Libby Brooks
The narrow point of law on which the court has been asked to rule is who counts as a woman under the UK’s Equality Act, and whether that legal definition includes transgender women possessing a gender recognition certificate (GRC).
Although the court battle began in Scotland, the ruling, expected on Wednesday, could have significant implications for how single-sex spaces and services are run across England, Scotland and Wales and galvanise calls to amend the 2010 act.
The issue has challenged politicians and policymakers in recent years as concerns about the clash between women’s rights and trans rights have grown; it was used as a political weapon towards the end of the previous Tory government.
What arguments were put to the supreme court?
Libby Brooks
Aidan O’Neill KC told the court that For Women Scotland (FWS) was arguing that “in the Equality Act sex just means sex, as that word [is] used in ordinary, everyday language … by ordinary people”.
He argued that Scottish ministers’ position that the Equality Act created a “new legal category of ‘certificated sex’” – determined by what it said on a birth certificate, and whether that was later altered by a gender recognition certificate (GRC) – should be rejected.
Ruth Crawford KC, responding on behalf of Scottish ministers, argued that transgender people had “a fundamental right” to be recognised in their legally acquired gender. She said the Gender Recognition Act 2004 was clear that a GRC changed sex “for all purposes” and someone with a GRC was entitled to legal protections “just as much as others enjoy those protections who are recorded as a woman at birth”.
What could happen?
Severin Carrell
If the UK supreme court rules in favour of the Scottish government, it may recommend that the Equality Act is clarified to set out the rights of trans women.
If it rules in favour of For Women Scotland (FWS), there will be substantial pressure on the UK government to amend the act to exclude trans women from women-only spaces, and the Scottish government will need to reverse its policies on public boards.
UK supreme court to rule on the legal definition of a woman
Severin Carrell
Equalities campaigners in the UK are braced for a supreme court ruling that could have a significant impact on the rights of transgender people to use single-sex services.
Five judges on the UK supreme court will rule on Wednesday morning whether or not the definition of woman in the Equality Act 2010 includes transgender women with gender recognition certificates (GRC).
The court’s decision is expected to lead to calls for the act to be rewritten, and could have a profound effect on the rights of transgender women to take places on public boards reserved for women, and to use spaces and services intended for women.
The case against the Scottish government was brought by the gender critical campaign group For Women Scotland after judges in Edinburgh ruled that ministers were right to say that trans women with a GRC could sit on public boards in posts reserved for women.
FWS, which is partly funded by the writer JK Rowling and has support from the campaign group Sex Matters, argues that the Equality Act’s definition of woman is limited only to people born biologically female.
They argue that a very clear definition by the court on what a woman is would also help clear up an ambiguity about who qualifies to use women’s services. They say people who self-identify as trans but do not have a gender recognition certificate are being allowed to use women-only services and spaces.
The Scottish government has defended its decision. Backed by trans rights advocates and lawyers it has told the court that the Gender Recognition Act 2004 makes clear that a gender recognition certificate changes sex “for all purposes”.
The government’s lawyers argue that means someone with that certificate is entitled to legal protections “just as much as others enjoy those protections who are recorded as a woman at birth”.