Legal definition of ‘woman’ refers to biological sex, Supreme Court rules
The Supreme Court delivered its landmark ruling on Wednesday, as ITV News' Martha Fairlie reports
The terms “woman” and “sex” in the Equality Act refer to a biological woman and biological sex, the Supreme Court has ruled.
Delivering the judgement, 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 (GRC)?
“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."
It follows a long-running legal battle over the definition of 'woman' in Scottish legislation between the Scottish government and the campaign group For Women Scotland (FWS).
The group initially brought their case against the Scottish Government after judges in Edinburgh ruled in 2018 that ministers were right to say that trans women with a GRC could sit on public boards in posts reserved for women.
FWS previously said that not tying the definition of sex to its “ordinary meaning” could have far-reaching consequences for sex-based rights, as well as “everyday single-sex services” like toilets and hospital wards.
The judges delivering their ruling were keen to stress that Wednesday's judgement does not diminish trans women's protections against discrimination.
Reading from their judgement, Lord Hodge stressed that a person "treated less favourably because of the protected characteristic of gender reassignment will be able to claim on that basis."
Transgender individuals point to the implications of this ruling however, highlighting the justices ruling that; if sex had a “biological meaning” then service providers could separate male and female users into different groups, such as separate hostels for homeless people.
They added: “If sex means biological sex, then provided it is proportionate, the female only nature of the service... would permit the exclusion of all males including males living in the female gender regardless of GRC status.”
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How have people reacted?
Reacting to the Supreme Court ruling, a government spokesman said: “We have always supported the protection of single-sex spaces based on biological sex.
“This ruling brings clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs.
“Single-sex spaces are protected in law and will always be protected by this Government.”
Labour had previously campaigned to make changing one's legal gender easier, something Leader of the Opposition, Kemi Badenoch, has opposed in both her current position and former role as equalities minister.
Speaking on Wednesday, she lauded the Supreme Court's ruling as a "victory," saying: “This is a victory for all of the women who faced personal abuse or lost their jobs for stating the obvious.
"Women are women and men are men: you cannot change your biological sex.
Leader of the Opposition, Kemi Badenoch, welcomed today's ruling.
Author, JK Rowling, a prominent advocate for biological women's rights, posted to X praising For Women Scotland.
She wrote: "It took three extraordinary, tenacious Scottish women with an army behind them to get this case heard by the Supreme Court and, in winning, they’ve protected the rights of women and girls across the UK. FWS, I’m so proud to know you."
However, LGBT charity Stonewall said there is “deep concern” around the consequences of the Supreme Court ruling, which it said is “incredibly worrying for the trans community”.
Chief executive Simon Blake said: “Stonewall shares the deep concern at the widespread implications for today’s ruling from the Supreme Court.
“It will be incredibly worrying for the trans community and all of us who support them.
“It’s important to be reminded the Court strongly and clearly re-affirmed the Equality Act protects all trans people against discrimination, based on Gender Reassignment, and will continue to do so."
Author and trans activist Munroe Bergdorf shared her worries on Instagram, saying: "Today’s Supreme Court ruling feels really heavy, uncertain and quite frankly, f***ing dark.
"A lot of us are feeling overwhelmed, anxious and struggling to remain hopeful under what feels like an endless barrage of systemic hatred."
The legislation that sparked this legal claim may have been introduced under his predecessor, but Scotland's First Minister John Swinney said he "accepts" Wednesday's ruling.
“The ruling gives clarity between two relevant pieces of legislation passed at Westminster," he said.
“We will now engage on the implications of the ruling.
“Protecting the rights of all will underpin our actions.”
What was argued in court?
In legal arguments, FWS's Trina Budge referenced the initial reasons for this claim, saying: “Not tying the definition of sex to its ordinary meaning means that public boards could conceivably comprise of 50% men, and 50% men with certificates, yet still lawfully meet the targets for female representation.
“However, the ramifications of this case are much more far-reaching and all sex-based rights protected by the Equality Act are at risk.
“The stakes are high and the court’s decision will have consequences for everyday, single-sex services such as toilets and hospital wards.
“It will determine whether a pregnant woman with a GRC is entitled to maternity leave, what it means to be same-sex attracted, and whether a man with a GRC’s entitlement to join a group of lesbians takes priority over their right to freely associate with only women.
“Trans rights are protected under the separate category of gender reassignment but, to fully guarantee women’s rights, it is increasingly clear that a consistent, biological and factual understanding of sex is the only workable solution.”
During the hearing, Ruth Crawford KC, representing the Scottish Government, said a GRC affected a “change in legal status”, and that someone with a GRC “becomes recognised as belonging to, or becoming, the sex of their acquired gender”.
She added: “We submit there are only two sexes or genders, and a person whose sex becomes that of a man or woman in consequence of a GRC belongs to that sex, and will have the protection afforded under the Equality Act”.
How did this appeal get to the Supreme Court?
The Court of Session ruled that changing the definition of a woman in the act was unlawful, as it dealt with matters falling outside the Scottish Parliament’s legal competence.
Following the challenge, the Scottish Government dropped the definition from the act and issued revised advice on how to comply with the law.
This stated that under the 2018 Act the definition of a woman was the same as that set out in the Equality Act 2010, and that a person with a GRC recognising their gender as female had the sex of a woman.
FWS challenged this revised guidance on the grounds that sex under the Equality Act referred to its biological meaning, and the government was overstepping its powers by effectively redefining the meaning of “woman”.
However, its challenge was rejected by the Court of Session’s Outer House on December 13 2022.
The Inner House upheld that decision on November 1 2023 – but did grant FWS permission to appeal to the UK Supreme Court.
The appeal at the Supreme Court before Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Rose and Lady Simler was heard last November and, after the two-day hearing, the judges said they would “take time to consider very carefully” before issuing Wednesday's judgment.
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