In a landmark moment in the contentious gender debate, the Supreme Court has ruled that the terms “woman” and “sex” in the Equality Act refer to a biological woman and biological sex.
The ruling goes further than campaigners had anticipated, in that it is an unambiguous statement from the court that sex-based rights under the Equality Act are based on biological sex.
Deputy President of the Supreme Court Lord Hodge said the ruling should not be considered a triumph of one group over another, but activists for sex-based rights have celebrated the outcome as a victory.
Although the ruling does not erase all protections for trans people, trans campaigners have expressed fear and concern that the ruling “undermines vital human rights”.
Here, The i Paper takes a look at the ruling, who is claiming victory – and what happens next.
The Supreme Court ruled that the terms “woman” and “sex” in the Equality Act refer to a biological woman and biological sex.
Lord Hodge, sitting with Lords Reed and Lloyd-Jones alongside Ladies Rose and Simler, said the “central question” was how the words “woman” and “sex” are defined in the Equality Act.
He said: “The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”
Who brought the challenge – and who is claiming a win
Campaign group For Women Scotland (FWS) have brought a series of challenges – the first in 2022 – over the definition of “woman” made in 2018 Scottish legislation that mandated 50 per cent female representation on public boards.
Their legal challenges were rejected in Scottish courts but FWS were given permission to appeal to the UK Supreme Court.
The dispute centred on whether someone with a gender recognition certificate (GRC) recognising their gender as female should be treated as a woman under the 2010 Equality Act.
While Lord Hodge said Wednesday’s ruling should not be considered a triumph of one group over another, campaigners supporting FWS have described the outcome as a victory.
Susan Smith, left, and Marion Calder, right, co-directors of For Women Scotland, celebrate outside the Supreme Court (Photo: Lucy North/PA Wire)“This has been a really, really long road,” Susan Smith, co-founder of FWS, said. “Today the judges have said what we always believed to be the case, that women are protected by their biological sex.”
Edinburgh-based trans rights charity Scottish Trans urged people “not to panic” after the ruling.
Scottish Greens activist Ellie Gomersall, a 25-year-old trans woman who lives in Glasgow, told Sky News: “I’m gutted to see this judgement from the Supreme Court.”
“Today’s ruling undermines the vital human rights of my community to dignity, safety and the right to be respected for who we are,” Gomersall added.
During an earlier Supreme Court hearing in November, Aidan O’Neill KC, for 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 GRC – is “just wrong and should be rejected by the court”.
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 successful, is 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.
What happens now?
The court’s decision will have consequences for how single-sex spaces and services operate across the UK, and for how any future equalities or gender policy is written.
The outcome is likely to be used by campaigners to further press the Government over its wider policies and guidance.
There will also be questions for Scottish ministers, who have lost in the highest court in the UK.
Campaigners from For Women Scotland (FWS) outside the Supreme Court in London (Photo: Lucy North/PA Wire)On the provision of single-sex services, the written Supreme Court judgment 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.”
Politically, this outcome could also spell trouble for Sir Keir Starmer, who could now face uproar from the left of his party and campaigners alike.
A Government spokesperson said the ruling brings “clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs”.
What happened before today?
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 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 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 13 December, 2022.
The Inner House upheld that decision on 1 November, 2023 – but granted FWS permission to appeal to the UK Supreme Court.
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