Closing summary
This blog will be closing shortly. Here is a summary of the day’s developments:
The UK supreme court has ruled that the terms “woman” and “sex” in the Equality Act refer to a biological woman and biological sex, in a victory for gender critical campaigners.
Five judges from the UK supreme court ruled unanimously that the legal definition of a woman in the Equality Act 2010 did not include transgender women who hold gender recognition certificates (GRCs). In a significant defeat for the Scottish government, their decision will mean that transgender women can no longer sit on public boards in places set aside for women.
It could have far wider ramifications by leading to much greater restrictions on the rights of transgender women to use services and spaces reserved for women, and spark calls for the UK’s laws on gender recognition to be rewritten.
Lord Hodge told the court the Equality Act (EA) was very clear that its provisions dealt with biological sex at birth, and not with a person’s acquired gender, regardless of whether they held a gender recognition certificate. That affected policy-making on gender in sports and the armed services, hospitals, as well as women-only charities, and access to changing rooms and women-only spaces, he said.
Hodge urged people not to see the decision “as a triumph of one or more groups in our society at the expense of another”. He said all transgender people had clear legal protections under the 2010 act against discrimination and harassment.
Gender critical campaign group For Women Scotland, which is backed financially by JK Rowling, celebrated outside the supreme court in London, alongside other campaigners, after the ruling was announced.
A government spokesperson said on Wednesday that the supreme court ruling on the definition of a woman under the Equality Act bought “clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs”. The spokesperson said: “Single-sex spaces are protected in law and will always be protected by this government.”
Maya Forstater, a gender critical activist who helped set up the campaign group Sex Matters, which took part in the supreme court case by supporting For Women Scotland, said the decision was correct: “We are delighted that the supreme court has accepted the arguments of For Women Scotland and rejected the position of the Scottish government. The court has given us the right answer: the protected characteristic of sex – male and female – refers to reality, not to paperwork.”
Kemi Badenoch described the supreme court ruling as a “victory”. The leader of the Conservative party said: “Saying ‘trans women are women’ was never true in fact, and now isn’t true in law either. 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.” The leader of the Scottish Tories called the supreme court decision a “victory for women across the United Kingdom”. Russell Findlay hailed the decision, which confirmed that the definition of woman in the 2010 Equality Act refers to biological women, as an “abject humiliation for the SNP”.
Trans rights campaigners urged trans people and their supporters to remain calm about the decision. The campaign group Scottish Trans said on social media that they’d “urge people not to panic”, while LGBTQ+ charity Stonewall has said there was “deep concern at the widespread implications” of the court ruling, which it said is “incredibly worrying for the trans community”. Amnesty International UK ruling as “disappointing” with “potentially concerning consequences for trans people”.
The Scottish Greens described the supreme court ruling as “deeply concerning for human rights”. The party said it would “continue to stand with trans people and resist culture war being waged against them”.
Kishwer Falkner, the chair of the Equality and Human Rights Commission, which had intervened in the case to support the Scottish government’s stance, said it would need time to fully interpret the ruling’s implications. However, the commission was pleased it had dealt with its concerns about the lack of clarity around single-sex and lesbian-only spaces.
Amnesty International UK described the supreme court ruling as “disappointing” with “potentially concerning consequences for trans people”.
Chief executive Sacha Deshmukh said:
The outcome of today’s judgment is clearly disappointing. It is a long and complex judgment and we will take time to analyse its full implications.
There are potentially concerning consequences for trans people, but it is important to stress that the court has been clear that trans people are protected under the Equality Act against discrimination and harassment.
The ruling does not change the protection trans people are afforded under the protected characteristic of ‘gender reassignment’, as well as other provisions under the Equality Act.
Amnesty intervened in this case to remind the court that legal gender recognition is essential for trans people to enjoy the full spectrum of rights each of us is entitled to, including safety, health and family life.
LGBTQ+ charity Stonewall has said there is “deep concern at the widespread implications” of the court ruling, which it said is “incredibly worrying for the trans community”.
Chief executive Simon Blake said:
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.
He said Stonewall will “continue its work with the government and parliamentarians to achieve equal rights under the law for LGBTQ+ people”.
The gender critical campaign group For Women Scotland, which is backed financially by JK Rowling, said the Equality Act’s definition of a woman was limited to people born biologically female.
Maya Forstater, a gender critical activist who helped set up the campaign group Sex Matters, which took part in the supreme court case by supporting For Women Scotland, said the decision was correct:
We are delighted that the supreme court has accepted the arguments of For Women Scotland and rejected the position of the Scottish government.
The court has given us the right answer: the protected characteristic of sex – male and female – refers to reality, not to paperwork.
Trans rights campaigners urged trans people and their supporters to remain calm about the supreme court’s decision.
The campaign group Scottish Trans said on social media:
We’d urge people not to panic – there will be lots of commentary coming out quickly that is likely to deliberately overstate the impact that this decision is going to have on all trans people’s lives. We’ll say more as soon as we’re able to. Please look out for yourselves and each other today.
Ellie Gomersall, a trans woman in the Scottish Green party, called on the UK government to change the law to entrench full equality for trans people.
Gomersall said:
I’m gutted to see this judgment from the supreme court, which ends 20 years of understanding that transgender people with a gender recognition certificate are able to be, for almost all intents and purposes, recognised legally as our true genders.
These protections were put in place in 2004 following a ruling by the European court of human rights, meaning today’s ruling undermines the vital human rights of my community to dignity, safety and the right to be respected for who we are.
Gender critical rights campaigners have won their supreme court challenge over the definition of a woman.
Five judges from the UK supreme court ruled unanimously that the legal definition of a woman in the Equality Act 2010 did not include transgender women who hold gender recognition certificates (GRCs).
In a significant defeat for the Scottish government, their decision will mean that transgender women can no longer sit on public boards in places set aside for women.
It could have far wider ramifications by leading to much greater restrictions on the rights of transgender women to use services and spaces reserved for women, and spark calls for the UK’s laws on gender recognition to be rewritten.
Lord Hodge told the court the Equality Act (EA) was very clear that its provisions dealt with biological sex at birth, and not with a person’s acquired gender, regardless of whether they held a gender recognition certificate.
That affected policy-making on gender in sports and the armed services, hospitals, as well as women-only charities, and access to changing rooms and women-only spaces, he said.
In a verbal summary of the decision, he said:
Interpreting sex as certificated sex would cut across the definitions of man and woman in the EA and thus the protected characteristic of sex in an incoherent way. It would create heterogeneous groupings.
As a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity and to protection from risks specifically affecting women, can only be interpreted as referring to biological sex.
The prime minister and Scottish first minister must “make sure that the law is obeyed” after today’s supreme court ruling, a former Scottish MP has said.
Joanna Cherry KC, the SNP’s former shadow home secretary who lost her seat in last year’s general election, said she feels “hugely vindicated” by the ruling but warned it needs to be implemented into everyday practice.
She told the PA news agency outside the court:
Now it’s over to the politicians to make sure that the law is obeyed.
I’m calling on my former colleague, John Swinney, the first minister of Scotland, and on the British prime minister, Keir Starmer, to respect this judgment and to do what they say that they do.
They both say they believe in women’s rights and they believe in women’s rights to single-sex spaces. If they mean that then they need to make sure that public policy changes to respect the fact that women means biological women and lesbian means women who are sexually attracted to women.
Men are not included within those categories.
Cherry said there will “have to be a sea change” across the public sector to recognise that the law has been clarified in the ruling.
Reflecting on her own experience, she said:
I’m a long-term feminist. I’m a lesbian who came out in the ‘80s and campaigned against section 28.
I’ve had to put up with my own party leader, Nicola Sturgeon, calling me a bigot and a transphobe for sticking up for the rights of women and lesbians.
I think she owes all of us, not just me, and more importantly the women of Scotland, an apology.
The Policy Exchange thinktank described today’s supreme court judgment as a “welcome victory” but insisted it should have been the government rather than a court which clarified the issue.
Lara Brown, senior research fellow on culture and identity at the thinktank, said:
By confirming that ‘sex’ in the Equality Act 2010 means ‘biological sex’, the supreme court has secured women’s sex-based rights – rights to which they have always been entitled as a matter of law.
While this is a welcome victory, it should never have been left to the courts to answer the question of ‘What is a woman?’
Had the government used their statutory powers to clarify that sex in the Equality Act 2010 means biological sex, when Policy Exchange called for them to do so in 2023, the Scottish ministers would never have been able to issue unlawful advice on the subject.
Scottish Greens call supreme court ruling 'deeply concerning for human rights'
The Scottish Greens have described today’s supreme court ruling as “deeply concerning for human rights”. The party said it would “continue to stand with trans people and resist culture war being waged against them”.
On X, the Scottish Greens MSP Maggie Chapman wrote:
Sending love and solidarity to trans people everywhere.
We will always fight to protect human rights, dignity and respect for all people. We stand with the trans community today, tomorrow and always.
The UK supreme court decision is a “victory for women across the United Kingdom”, the leader of the Scottish Tories has said.
Russell Findlay hailed the decision, which confirmed that the definition of woman in the 2010 Equality Act refers to biological women, as an “abject humiliation for the SNP”.
Findlay said:
This is a victory for women across the United Kingdom, a victory for common sense – and an abject humiliation for the SNP.
John Swinney now needs to respect women’s rights and get rid of the dangerous gender policies which have become embedded in Scotland’s public institutions.
This ruling should sound the death knell once and for all for Nicola Sturgeon’s reckless self-ID plans, which Labour, the Liberal Democrats and the Greens shamefully backed to the hilt at Holyrood.
John Swinney must stop obsessing about gender and get back to the day job of delivering better public services and a stronger economy.
The equalities watchdog for Great Britain welcomed the ruling as having addressed challenges around single-sex spaces.
Kishwer Falkner, chair of the Equality and Human Rights Commission (EHRC), said:
Today the supreme court ruled that a gender recognition certificate does not change a person’s legal sex for the purposes of the Equality Act.
We are pleased that this judgment addresses several of the difficulties we highlighted in our submission to the court, including the challenges faced by those seeking to maintain single-sex spaces and the rights of same-sex attracted persons to form associations.
As we did not receive the judgment in advance, we will make a more detailed statement once we have had time to consider its implications in full.
Supreme court ruling brings 'clarity and confidence', says government spokesperson
The supreme court ruling on the definition of a woman under the Equality Act brings “clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs”, a government spokesperson has said, reports the PA news agency.
Reacting to the supreme court ruling, a government spokesperson 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.
Updated
The supreme court judgment in the For Women Scotland appeal against the Scottish government rules the certificated sex interpretation would have “rendered meaningless” a section of the 2010 Equalities Act dealing with protection from discrimination on the grounds of sexual orientation.
This interpretation would mean “a trans woman (a biological male) with a GRC (gender recognition certificate)(so legally female) who remains sexually oriented to other females would become a same-sex attracted female, in other words, a lesbian” and would lead to an “inevitable loss of autonomy and dignity for lesbians” as well as affecting lesbian clubs and associations.
The judgment continues:
Read fairly, references to sex in this provision can only mean biological sex. People are not sexually oriented towards those in possession of a certificate.
Ruling does not diminish transgender women’s protections against direct discrimination, says supreme court
The ruling by the supreme court that “woman” in the Equality Act (EA) 2010 refers to biological women does not diminish transgender women’s protections against direct discrimination, the judges have said.
In their judgment, Lord Reed, Lord Hodge, Lady Rose and Lady Simler said:
A man who identifies as a woman who is treated less favourably because of the protected characteristic of gender reassignment will be able to claim on that basis.
A man who identifies as a woman who is treated less favourably not because of being trans (the protected characteristic of gender reassignment) but because of being perceived as being a woman will be able to claim for direct sex discrimination on that basis.
This does not entail any practical disadvantage and there is no discordance (as the Scottish ministers appear to suggest) between the individual’s position in society and the ability to claim on this basis.
A certificated sex reading of the EA 2010 is not necessary here, and the approach applies equally whether or not the claimant has a gender recognition certificate.
The LGB Alliance charity said the ruling “marks a watershed for women”.
According to the PA news agency, chief executive Kate Barker said:
The ruling confirms that the words ‘gay’ and ‘lesbian’ refer to same-sex sexual orientation and makes it absolutely clear that lesbians wishing to form associations of any size are lawfully entitled to exclude men – whether or not they possess a GRC (gender recognition certificate).
It is difficult to express the significance of this ruling: it marks a watershed for women and, in particular, lesbians who have seen their rights and identities steadily stolen from them over the last decade.
Barker said the supreme court ruling “delivers huge benefits to women and to lesbians”.
She told the PA news agency:
This is a victory for biology, for common sense, for reality.
It’s definitely a victory for lesbians as well, and it was specifically mentioned in the case how lesbians have been disadvantaged by this idea that maybe a man could be a woman and could be a lesbian if he had a certificate, and the ruling just absolutely blew that out of the water.
It was really fair, it was really clear and it delivers huge benefits to women and to lesbians in particular, so I’m absolutely we’re all thrilled about it.
Barker said the ruling would cut out a lot of expensive and time-consuming court cases in the future “because it sets a clear precedent”.
On the provision of single-sex services, the written supreme court judgment on the For Women Scotland appeal against the Scottish government gives examples including rape or domestic violence counselling, domestic violence refuges, rape crisis centres, female-only hospital wards and changing rooms.
It states:
Read fairly and in context, the provisions relating to single-sex services can only be interpreted by reference to biological sex.
It adds:
It is fanciful (even perverse) to think that any reasonable objection to the presence of a person of the opposite sex could be grounded in (gender recognition certificate) GRC status or that a confidential GRC could make any difference at all.
Kemi Badenoch calls supreme court ruling a 'victory'
Kemi Badenoch has lauded as a “victory” the supreme court ruling that “woman” in equality law refers to biological women.
According to the PA news agency, the Conservative party leader said:
Saying ‘trans women are women’ was never true in fact, and now isn’t true in law either.
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.
The era of Keir Starmer telling us women can have penises has come to an end.
Well done to For Women Scotland!
Here are some images coming in via the newswires from outside the supreme court in London today after a ruling on the legal definition of a woman was delivered:
The supreme court justices also said that using a “certificated” interpretation of sex would create “an odd inequality of status” between trans people who have a gender reassignment certificate (GRC) and trans people who do not, with “no obvious means of distinguishing between the two groups”.
Lord Hodge, Lady Rose and Lady Simler said:
We can see no good reason why the legislature should have intended that people with the protected characteristic of gender reassignment should be regarded and treated differently under the EA 2010 depending on whether or not they possess a confidential certificate, even though in many, if not most cases there will be no material distinction in their personal characteristics, either as regards gender identity or appearance, or as to how they are perceived or treated by others or society at large.
Mims Davies, the Conservative shadow minister for women at Westminster, said the government needed to clarify existing guidance to reflect the supreme court’s ruling on gender, reports the PA news agency.
In a post on X, Davies said:
Huge well done to FWS (For Women Scotland).
We Conservatives have been warning the government for months about the preparation they would need to do ahead of this judgment – it’s now time for them to clarify all existing guidance to make sure that public bodies are clear that sex means biological sex.
She added:
This morning’s decision is important for women right across our country.
This is a clear victory for common sense – and should never have taken a court case to prove the biological definition of a woman.
We Conservatives, Claire Coutinho, (and) Kemi Badenoch had been pushing the government for many months to grip this situation and publish clear updated guidance. Now that we have legal clarity, ministers must do this without delay.
As minister for women and equalities, Kemi Badenoch started a call for evidence for examples of where bad guidance was misinterpreting the law – the government should use that work to make the guidance clear and certain so that the dignity, privacy and safety of women and girls is respected and crucially protected.
Doing so will ensure safety, fairness and equality.
For Women Scotland (FWS) and Sex Matters have reacted to today’s UK supreme court ruling on the legal definition of a woman.
On X, FWS wrote:
yaaaaaaaaaaaaaaaaaaaaaaaaaaaaas #WeKnowWhatAWomanIs #SupremeCourt
Sex Matters posted a video with the words “it’s a win” on it, alongside this message:
We are delighted that For Women Scotland has been successful in its appeal to the supreme court, and that the position of the Scottish government has been rejected.
The court has given the right answer: the protected characteristic of sex – male and female – refers to reality, not paperwork.
The group then followed up with the below on X:
We are hugely grateful to For Women Scotland for bringing this case.
At great personal cost, they have provided women in the UK with essential clarity about the way equality law works.
Their bravery cannot be overstated. It’s been a long road and we have been proud to intervene on their side in the supreme court along with the lesbian intervenors.
The judges continued in their written ruling:
A certificated sex interpretation would cut across the definition of the protected characteristic of sex in an incoherent way.
References to a ‘woman’ and ‘women’ as a group sharing the protected characteristic of sex would include all females of any age, irrespective of any other protected characteristic, and those trans women, biological men, who have the protected characteristic of gender reassignment and a GRC, and who are therefore female as a matter of law.
The same references would necessarily exclude men of any age, but they would also exclude some, biological, women living in the male gender with a GRC, trans men who are legally male.
The converse position would apply to references to ‘man’ and ‘men’ as a group sharing the same protected characteristic.
We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogeneous groupings, rather than to the distinct group of, biological, women and girls, or men and boys, with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.
Delivering the judgment of the UK supreme court, 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?
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”.
In an 88-page ruling, Lord Hodge, Lady Rose and Lady Simler said:
The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary, a person is either a woman or a man.
Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men.
Although the word ‘biological’ does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman.
These are assumed to be self-explanatory and to require no further explanation.
Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group.
During the supreme court ruling, Lord Hodge, sitting with Lords Reed and Lloyd-Jones alongside Ladies Rose and Simler, said the “central question” is how the words “woman” and “sex” are defined in the 2010 Equality Act.
He continued:
The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.
During the hearing in November, Aidan O’Neill KC, for For Women Scotland (FWS), told justices the Scottish ministers’ position that sex, man and woman in the Equality Act refer to “certificated sex” – as the sex on a person’s birth certificate whether or not amended by a gender recognition certificate (GRC) – is “just wrong and should be rejected by the court”, reports the PA news agency.
But Ruth Crawford KC, for the Scottish government, said a person who becomes a woman “in consequence of a GRC” is entitled to those protections “just as much as others enjoy those protections who are recorded as a woman at birth”.
She also said the “inevitable conclusion” of the FWS challenge, if it were successful, would be that trans women with GRCs would “remain men until death for the purposes of the Equality Act”.
The court was also told that since the Gender Recognition Act was passed in 2004, 8,464 people in the UK had obtained a GRC.
When opening the supreme court judgment on the appeal by For Women Scotland over the legal definition of woman, Lord Reed called on all parties to respect the “dignity” of the court.
He said:
Some people will be pleased and others will be disappointed.
Whatever your feeling may be, please respect the dignity of these courts and remain silent until the court is adjourned.
Lord Hodge then began delivering the judgment.
Lord Hodge: ruling should not be considered a triumph of one group over another
UK supreme court judge Lord Hodge, who delivered the ruling today, said:
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.
But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.”
Updated
Scottish Trans has reacted to the UK supreme court ruling, urging people “not to panic”. On Bluesky, the charity, wrote:
FWS have won their case against the Scottish government. We will be reading the judgment as quickly as possible so we can properly understand what the court has decided today.
We’d urge people not to panic – there will be lots of commentary coming out quickly that is likely to deliberately overstate the impact that this decision is going to have on all trans people’s lives. We’ll say more as soon as we’re able to. Please look out for yourselves and each other today.
Supreme Court rules definition of woman in Equality Act refers to 'biological women'
The definition of a woman and sex in the Equality Act relates to “a biological woman and biological sex”, the supreme court has ruled as it unanimously allowed an appeal from gender critical campaign group For Women Scotland.
Updated
A possible outcome of the case is that the court will agree with the previous interpretation of the law as it stands, but suggest parliament considers amending the Equality Act to deal with these previously unforeseen consequences.
This was promised by Kemi Badenoch during last year’s general election campaign.
Earlier this year the Guardian reported that Labour had quietly shelved its plans to make it easier for people to legally change their gender amid concerns about the rising popularity of Nigel Farage’s Reform UK.
But the government remains committed to a trans-inclusive ban on conversion practices, which is expected to be brought forward within months.
Supreme court judges begin handing down their judgment
Judges at the UK’s highest court have begun handing down their judgment on the legal definition of a woman.
The supreme court ruling follows a series of challenges brought by For Women Scotland (FWS) over the definition of “woman” in Scottish legislation mandating 50% female representation on public boards.
The dispute centres on whether or not somebody with a gender recognition certificate (GRC) recognising their gender as female should be treated as a woman under the 2010 Equality Act.
You can listen to the judgment via the live stream at the top of this blog.
How could the ruling change life for women and trans people in Scotland, England and Wales?
The Equality Act already allows transgender women to be excluded from women-only groups and services, such as refuges, prisons or clubs – even those holding a gender recognition certificate (GRC) – if it is “a proportionate means of achieving a legitimate aim”. For example, Edinburgh Women’s Aid announced recently it would no longer let transgender women access its services.
But For Women Scotland (FWS) is concerned that, if it loses, using those exemptions would be made more complicated for women-only groups because a trans woman, deemed legally a woman, would therefore able to claim sex discrimination.
Susan Smith of FWS said a victory “would put the protected status of sex beyond all doubt.
“A ruling in our favour would clear up any ambiguity about the provision of single-sex spaces and services under the Equality Act and enable providers to act with confidence.”
But trans-inclusive campaigners questioned this narrative of simple clarification, saying that if the supreme court allowed the appeal it would be going against 15 years of interpretation of the law, and would also undermine the premise of the Gender Recognition Act, which was to give legal recognition to an individual’s acquired gender.
Whatever the outcome, it will not change the law, of course, but in its aftermath there are likely to be further calls to revisit the Equality Act.
The Equality and Human Rights Commission, the watchdog that enforces the 2010 act, argued for this in its own intervention in the case, suggesting MPs had not appreciated the consequences for women and lesbians of the law viewing a transgender woman with a GRC as legally female.
But Amnesty International, the only trans-inclusive organisation to intervene, raised concerns that this case could be the “thin end of the wedge” in undermining other rights.
If the legal sex of trans people with a GRC were reversed, it would result in trans people missing out on equal pay and sex discrimination rights, for example. In practice, it would affect a minority of trans people in the UK as only about 8,000 have applied for a GRC over the past 20 years.
More significant, suggest trans advocates, is the ruling’s contribution to a wider atmosphere of hostility, resulting in many trans people already self-excluding from public spaces.
Steph Richards, who runs the advocacy organisation TransLucent, predicted that legal actions such as this one would “result in trans people going back to live in stealth”.
Updated
A live stream of today’s UK supreme court session, which will begin shortly, has been added to the top of this blog. You may have to refresh the page to see it.
Wednesday’s judgment concludes court action by For Women Scotland (FWS) over Holyrood’s Gender Representation on Public Boards (Scotland) Act 2018, which was aimed at improving gender balance.
An amendment to the SNP government’s bill, brought by a Scottish Labour MSP, expanded the scope of the legislation to include all trans women, whether or not they had applied for a GRC.
FWS launched a judicial review, arguing that Holyrood had gone beyond its competence by using such a wide definition of “woman” and the inner court of session in Edinburgh agreed.
Scottish ministers revised the statutory guidance, which stated the new law would follow the Equality Act by including transgender women who had a GRC within the definition of “woman”.
FWS launched another judicial review, which was dismissed, and after further appeals brought the case to the supreme court. Its crowdfunder has so far raised £230,000, including £70,000 donated by the Harry Potter author and activist JK Rowling.
Other prominent campaigners, including Sex Matters, which was founded by Maya Forstater after she won an employment tribunal that found she had been unfairly discriminated against because of her gender-critical beliefs, were granted leave to intervene in the case.
No trans people were represented during the two days of legal argument last November. The retired judge Victoria McCloud, who changed her legal sex more than two decades ago, was refused permission to be heard in the case.
She said:
Not permitting trans people to be heard was one of the boldest decisions made by this court. I am confident an appeal would be pursued at an international level if the appeal was allowed. I doubt that will be necessary.
What has the supreme court been asked to rule on?
The narrow point of law on which the court has been asked to rule is who counts as a woman under the UK’s Equality Act, and whether that legal definition includes transgender women possessing a gender recognition certificate (GRC).
Although the court battle began in Scotland, the ruling, expected on Wednesday, could have significant implications for how single-sex spaces and services are run across England, Scotland and Wales and galvanise calls to amend the 2010 act.
The issue has challenged politicians and policymakers in recent years as concerns about the clash between women’s rights and trans rights have grown; it was used as a political weapon towards the end of the previous Tory government.
Updated
What arguments were put to the supreme court?
Aidan O’Neill KC told the court that For Women Scotland (FWS) was arguing that “in the Equality Act sex just means sex, as that word [is] used in ordinary, everyday language … by ordinary people”.
He argued that Scottish ministers’ position that the Equality Act created a “new legal category of ‘certificated sex’” – determined by what it said on a birth certificate, and whether that was later altered by a gender recognition certificate (GRC) – should be rejected.
Ruth Crawford KC, responding on behalf of Scottish ministers, argued that transgender people had “a fundamental right” to be recognised in their legally acquired gender. She said the Gender Recognition Act 2004 was clear that a GRC changed sex “for all purposes” and someone with a GRC was entitled to legal protections “just as much as others enjoy those protections who are recorded as a woman at birth”.
Updated
What could happen?
If the UK supreme court rules in favour of the Scottish government, it may recommend that the Equality Act is clarified to set out the rights of trans women.
If it rules in favour of For Women Scotland (FWS), there will be substantial pressure on the UK government to amend the act to exclude trans women from women-only spaces, and the Scottish government will need to reverse its policies on public boards.
UK supreme court to rule on the legal definition of a woman
Equalities campaigners in the UK are braced for a supreme court ruling that could have a significant impact on the rights of transgender people to use single-sex services.
Five judges on the UK supreme court will rule on Wednesday morning whether or not the definition of woman in the Equality Act 2010 includes transgender women with gender recognition certificates (GRC).
The court’s decision is expected to lead to calls for the act to be rewritten, and could have a profound effect on the rights of transgender women to take places on public boards reserved for women, and to use spaces and services intended for women.
The case against the Scottish government was brought by the gender critical campaign group For Women Scotland after judges in Edinburgh ruled that ministers were right to say that trans women with a GRC could sit on public boards in posts reserved for women.
FWS, which is partly funded by the writer JK Rowling and has support from the campaign group Sex Matters, argues that the Equality Act’s definition of woman is limited only to people born biologically female.
They argue that a very clear definition by the court on what a woman is would also help clear up an ambiguity about who qualifies to use women’s services. They say people who self-identify as trans but do not have a gender recognition certificate are being allowed to use women-only services and spaces.
The Scottish government has defended its decision. Backed by trans rights advocates and lawyers it has told the court that the Gender Recognition Act 2004 makes clear that a gender recognition certificate changes sex “for all purposes”.
The government’s lawyers argue that means someone with that certificate is entitled to legal protections “just as much as others enjoy those protections who are recorded as a woman at birth”.
