The Supreme Court ruled on April 16 that only people who are born female should be protected from discrimination as a woman under the Equality Act in a landmark ruling.
In handing down the judgment, Lord Hodge has told the Supreme Court that a panel of five judges has unanimously allowed the appeal by For Women Scotland.
At one time, it would have been unthinkable that society would be engaged in a heated debate about how we define “a woman”, let alone that such an argument might find its way into the courts.
So, how did we get here?
When did the legal battle start?
The case centres on a relatively obscure piece of legislation passed by the Scottish government in 2018 to establish gender quotas for public boards, aimed at increasing the number of women sitting on them.
The crucial issue is who counts as a woman for the purposes of the quotas.
The legal battle started in 2021 when For Women Scotland, a gender-critical feminist organisation formed in 2018 by Marion Calder, Trina Budge, Susan Smith and Magdalen Berns, brought a judicial review against the Scottish government in the Court of Session over its definition of “woman” in the legislation.
For Women Scotland has become the most prominent of several grassroots gender-critical feminist organisations to have emerged in Scotland, with high-profile supporters including JK Rowling.
The Gender Representation on Public Boards Act originally stated that it included anyone who was “living” as a woman and who either had gone through or intended to go through the gender recognition process.
For Women Scotland contended that ministers had broken with the separate definitions of women and trans women, laid out in the 2010 Equality Act and had therefore acted beyond their powers.
The group argued that the Equality Act defined women and trans people as protected but distinct groups. The group initially won their case on appeal.
However, the dispute continued when the Scottish government responded with revised guidance notes for the bill to say it included women as defined by the Equality Act and trans women as defined by the 2004 Gender Recognition Act.
The 2004 act stated: “Where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman.”
For Women Scotland argued that this guidance confused the protected characteristics and was again trying to redefine the concept of what a “woman” is.
A further twist came in December 2022 when the judge Lady Haldane ruled in favour of the Scottish government, saying that the definition of sex was “not limited to biological or birth sex”.
But the matter did not end there. Despite losing twice in the courts, For Women Scotland decided to continue their legal fight last year by appealing their case to the Supreme Court in London.
What is the Supreme Court case ruling on ‘woman’ definition?
Five justices, led by Lord Reed of Allermuir, were tasked with making a crucial decision on whether a “woman” is defined in law as a biological woman or whether the definition of sex may be broadened to encompass trans people who possess a gender recognition certificate (GRC) that changes their legal sex.
During a two-day hearing last November, the highest court in Britain heard arguments from both sides, namely For Women Scotland and the Scottish government.
Aidan O’Neill KC, for the campaign group, urged the justices to take account of “facts of biological reality rather than the fantasies of legal fiction”.
He said: “Our submission is that the court should find in favour of [For Women Scotland] … that in the Equality Act, sex just means sex, as the word and the words woman and man are understood and used in ordinary, everyday language, used every day in everyday situations by ordinary people.”
O’Neill added: “It’s simple and straightforward if you stick to men being men, women being women and sex being sex.”
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Scottish ministers argued in their written submissions that the term “woman” as used in their Gender Representation on Public Boards Act includes a person issued with a full GRC in the acquired gender of female and excludes a person issued with a full GRC in the acquired gender of male.
They argued that their statutory guidance was lawful and that For Women’s Scotland’s appeal should be refused.
What is at stake?
In broad terms if the court accepts the definition of a woman can be broadened to include transgender women — born biologically male — who have a full GRC that changes their legal sex to female, the implication is that society’s fundamental understanding of sex will also be changed.
Another campaign group involved in the case, Sex Matters, said that this outcome would not mean that trans women with GRCs would be able demand access to women’s single-sex services as there was still other legislation protecting these areas pertaining to the Equality Act, safeguarding, duty of care and the protection of human rights.
But it predicted that it would make it legally complicated to operate “truly single-sex facilities”.
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Sex Matters warned that other consequences of For Women Scotland losing their case could include women’s associations, such as associations of lesbians and sports groups, not being allowed to exclude trans women with a GRC. The same would apply to “women-only” shortlists and other measures aimed at increasing female participation, it argued.
The group believed that without a clear protected characteristic of sex it would be difficult for single-sex charities, including those concerned with violence against women, to operate effectively.
In a document entitled Will the Supreme Court protect women’s rights?, Sex Matters said: “More broadly, protecting women’s rights requires a clear understanding of which people are women.
“If For Women Scotland loses it will mean that the Equality Act 2010 will have lost this understanding.”
