THE Supreme Court is set to rule on the definition of a “woman” in the culmination of a case that has been ongoing for more than three years.
Campaign group For Women Scotland (FWS) raised hundreds of thousands of pounds via a crowdfunder to take the case to the UK’s highest court.
But it isn’t the first time the case, which is a judicial review of Scottish Government guidance, has been through the courts.
So what is it about, and what should we expect from the Supreme Court justices when they hand down their judgement on Wednesday?
What is the case?
The row started in 2022 when FWS took the Scottish Government to court over its definition of “women” in the Gender Representation on Public Boards (Scotland) Act.
Initially, the Scottish Government had defined “women” as those living as women or with a valid GRC.
FWS argued this did not line up with separate definitions of women and transgender women in the Equality Act, initially losing a judicial review but were then successful on appeal.
This resulted in the Scottish Government changing the definition in the Gender Representation on Public Boards (Scotland) Act.
Nick McKerrell, senior lecturer in law at Glasgow Caledonian University, explained: “For Women Scotland don’t believe that sex can ever be anything other than biological.
“Their point is partially a policy one, but they want to make a legal one, which is that you can't be a woman on the terms of the Equality Act, on the basis of a Gender Recognition Certificate.
“The point of general law is not specifically to do with an appeal or a definition of the Equality Act, it’s to do with that legislation [put forward by] the Scottish Government.’
How did it get to the Supreme Court?
FWS were unhappy with the amended definition and called for a second judicial review, which was defeated in December 2022, and an appeal lost in November 2023. The case was heard in both the Inner and Outer houses of the Court of Session.
In February 2024, it was announced that the case would be heading to the Supreme Court.
At the time, the court said the case raised issues “which involve arguable points of law of general public importance which ought to be considered by the UKSC at this time”.
The court held a series of hearings in November last year.
FWS raised £232,005 via a crowdfunder to take the case to the Supreme Court for a final judgement.
What impact could the ruling have?
It has been suggested that a ruling in favour of FWS could have implications for how the Equality Act works across Scotland, England and Wales.
McKerrell said it wouldn’t be a “shock” if the Supreme Court sided with the Court of Session’s initial rulings which set out that you can “interpret” the Equality Act in line with the Gender Recognition Act.
“Because that is what's happened over 20 years,” he explained.
“That is to say people with Gender Recognition Certificates have had access to rights of protection under their acquired sex.”
He added that the “wording” of the Supreme Court judgement will be “important”.
McKerrell said: “If they took the only arguments that FWS put forward, which is that sex is immutable, the Gender Recognition Certificate is just administrative, it doesn't give you any protection of sex rights, if they took that position that would be a radical change.
“I don't think that's likely, to be honest, I think that that would be, well, that would be a surprising outcome.”
As powers over gender recognition reform are devolved to the Scottish Parliament, McKerrell noted that even if FWS won the case, the Scottish Government could just change its guidance to make it fit in with the law.
When will we hear the judgement?
The judgement will be issued on Wednesday, April 16 at 9.45am, which the Supreme Court will stream live on its website.
