The Supreme Court has announced that the definition of a woman in the Equality Act is based on biological sex in a landmark judgement.
Lord Hodge said that five Supreme Court justices had unanimously decided that ‘the terms woman and sex refer to a ‘biological woman and biological sex’.
He recognised ‘the strength of feeling on both sides’ and cautioned against seeing the judgement as a triumph for one side over another, stressing that the law still gives trans people protection against discrimination.
But the decision could have far-reaching implications on how sex-based rights apply, including how women-only spaces are allowed to operate.
It marks the culmination of a long-running legal battle between the Scottish government and a women’s group.
The case centred on whether somebody with a gender recognition certificate (GRC) recognising their gender as female should be treated as a woman under the 2010 Equality Act.
The Scottish government argued that such people are entitled to sex-based protections, while campaign group For Women Scotland (FWS) claimed they only apply to people that are born female.
The action sought to overturn a decision by the Scottish courts in 2023 which found that treating someone with a GRC as a woman under the Equality Act was lawful. The outcome will have implications in England, Scotland and Wales.
The legal definition of a women will be ruled on today by the UK Supreme Court (pictured) after a challenge brought by women’s rights campaigners (File image)
The Gender Representation on Public Boards (Scotland) Act 2018 is a piece of legislation intended to increase the proportion of women on public boards in Scotland.
In 2022, FWS successfully challenged the original act over its inclusion of trans women in its definition of women.
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 statutory guidance – essentially, 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 also 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 sex under the Equality Act referred to its biological meaning and said the Government was overstepping its powers by effectively redefining the meaning of ‘woman’.
However, their 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.
Judges are to rule on whether transgender people can have access to single-sex spaces such as public toilets and hospital wards (Stock photo)
Maya Forstater (pictured) has campaigned for women’s rights and gender self-ID
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 the judgment on April 16.
When the group’s legal argument was published ahead of the appeal last year, FWS director Trina Budge said: ‘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.’
