THE Supreme Court has ruled that women are defined by biology in a landmark judgment which deals a blow to transgender campaigners.
The UK’s highest court rejected the Scottish Government’s arguments that the category of “woman” included both biological females and biological males who held a Gender Recognition Certificate (GRC).
The certificates, which allow trans people to change their sex on legal documents, have been issued to 8464 people in the UK since their introduction in 2004, the court previously heard.
The 2004 Gender Recognition Act used the terms sex and gender interchangeably, and said a GRC meant someone "becomes for all purposes the acquired gender". However, that was subject to "other enactment or any subordinate legislation".
Lord Hodge said the decision was unanimous that the definitions of “sex” and “woman” in the later Equality Act 2010 were biological definitions, siding with the charity For Women Scotland (FWS).
It is a major victory for gender critical feminist campaigners, who took the Scottish Government to court over rules which Holyrood ministers brought in to allow trans people with a GRC to be considered women for the purposes of gender balance on the boards of public bodies.
Lord Hodge (below) said: "The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”
The ruling was met with cheering from gender critical activists who had gathered outside the court in central London on Wednesday morning.
It will be met with dismay from members of the trans community, who Lord Hodge noted before giving his judgment represented a "vulnerable" minority subject to harassment.
A summary of the judgment said the court's decision had been based on "careful analysis" of the Equality Act, which makes repeated reference to women in biological terms.
It states: "For example, the provisions relating to pregnancy and maternity [...] are based on the fact of pregnancy and giving birth to a child.
"As a matter of biology, only biological women can become pregnant. Therefore, these provisions are unworkable unless 'man' and 'woman' have a biological meaning."
The ruling also stressed that trans people still enjoyed legal protections, noting: "This interpretation of the [Equality Act] 2010 does not remove protection from trans people, with or without a [GRC].
"Trans people are protected from discrimination on the ground of gender reassignment.
"They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex. In the light of case law interpreting the relevant provisions, a trans woman can claim sex discrimination because she is perceived to be a woman."
The political ramifications of the ruling will be significant, with the Equality and Human Rights Commission (EHRC) calling before the judgment for UK ministers to update guidelines on how single-sex spaces are defined.
The body, tasked with overseeing the working of the Equality Act, updated its guidance before the ruling to say that services should no longer be allowed to claim they are single-sex if they cater for transgender people.
Social Justice Secretary Shirley-Anne Somerville will respond to the ruling in the Scottish Parliament next week and John Swinney said he "accepts" the verdict.
A Scottish Government spokesperson added that ministers would work through necessary changes to the rules for single-sex spaces with the EHRC "as a matter of urgency".
A Labour Government spokesperson said the judgment gave "clarity and confidence" for the providers of single-sex spaces.
They 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."
Scottish Greens MSP Maggie Chapman said the verdict was "deeply concerning ruling for human rights and a huge blow to some of the most marginalised people in our society".
She added: "It could remove important protections and will leave many trans people and their loved ones deeply anxious and worried about how their lives will be affected and about what will come next."
The matter first came to court in 2022 when FWS successfully challenged the Gender Representation on Public Boards (Scotland) Act 2018 over its inclusion of trans women in its definition of women.
The Court of Session ruled changing the definition of a woman in the Act was unlawful, as it was outwith the Scottish Parliament's powers.
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 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 granted FWS permission to appeal to the UK Supreme Court.
