The UK’s Supreme Court handed down a judgement on Wednesday, which has found that the terms “woman” and “sex” in the Equality Act refer to a biological woman and biological sex.
With potential long-lasting ramifications to how Britain treats its equalities policy, 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.
The ruling follows a series of legal challenges brought by the campaign group For Women Scotland (FWS), backed by Harry Potter author J.K. Rowling, over the definition of a “woman”.
Follow our liveblog here for all the latest updates
The decision means that transgender women can no longer sit on public boards in places set aside for women. However, it could impact the way that transpeople use single-sex spaces such as toilets, refuge spaces and hospital wards.
It is likely to reignite the contentious debate around sex and gender that has caused a headache for both Westminster and Edinburgh in recent years, and renew pressure from campaigners on either side.
What does the ruling mean?
In a ruling on Wednesday, justices at the UK’s highest court unanimously ruled in FWS’s favour, and ruled that “woman” in equality law refers to biological women.
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 2019 Equality Act.
He continued: “The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”
The justices later said that if “sex” did not only mean biological sex in the Equality Act, providers of single-sex spaces including changing rooms, homeless hostels and medical services would face “practical difficulties”.
This is likely to affect policy-making on gender in sports, which has become a talking point in recent years, as well as within the armed services. Other spaces likely to be affected will be hospitals, as well as women-only charities, and access to changing rooms and women-only spaces.
Lord Hodge stressed that trans people are still protected under the Equality Act from discrimination and harassment.
Meanwhile, trans rights campaigners have urged those affected to remain calm until further details are clarified about the daily impact this will have on trans people.
What is the case about?
The legal dispute began in 2018 when the Scottish Parliament under Nicola Sturgeon passed a bill designed to establish gender quotas for public boards. It was amended to count trans women with gender recognition certificates, which confirmed their female gender, which sparked a legal challenge by FWS.
After several cases in the Scottish courts, which FWS lost, they were allowed to send the issue to the Supreme Court in London for a final ruling. Their crowdfunder has so far raised £230,000, which includes a £70,000 donation from Rowling.
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 their judgment on 16 April.
When FWS’ legal argument was published ahead of November’s appeal, director Trina Budge said: “Not tying the definition of sex to its ordinary meaning means that public boards could conceivably comprise of 50 per cent men, and 50 per cent men with certificates, yet still lawfully meet the targets for female representation.”
Campaigners for FWS, who believe that sex is biological and cannot be changed, had high hopes that after losing their case in Scotland, they would win in London. This means the issue will not be limited to Scottish law, and will instead affect interpretation of the 2010 Equality Act which applies across Great Britain.
What do both sides say?
Gender critical campaigners are arguing that not tying the definition of sex to its “ordinary meaning” could have far-reaching consequences for sex-based rights, as well as “everyday single-sex services” like toilets and hospital wards.
They have previously argued that the Scottish government was overstepping its powers by effectively redefining the meaning of “woman” by revising guidance under the Equality Act.
Meanwhile, trans rights campaigners have said that if the Supreme Court rules that a GRC does not change your sex, they will lose protections against discrimination.
Ruth Crawford KC, who responded on behalf of Scottish ministers, argued that transgender people had a “fundamental right” to be recognised, 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”.
What are the likely implications?
Gender reform has become a sticky topic for politicians in recent years, with Wednesday’s verdict likely to prove a talking point for parties ahead of an election at Holyrood next year.
Whatever the outcome, it will likely galvanise calls to revisit the Equality Act. The Equality and Human Rights Commission, which enforces the 2010 act, had previously suggested that MPs had not appreciated the consequences for women of the law viewing a transgender woman with a GRC as legally female.
If the definition of a woman reversed the decision to include trans people with a GRC, it could see them miss out on equal pay and sex discrimination rights, and contribute to a wider atmosphere of hostility.
What does this mean for trans people?
Edinburgh-based charity Scottish Trans is urging people “not to panic” following the ruling as they await further clarification.
“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,” the charity posted on Bluesky.
Amnesty International UK described the ruling as “disappointing” with “potentially concerning consequences for trans people” but said it is “important to stress that the court has been clear that trans people are protected under the Equality Act against discrimination and harassment”.
One thing is certain, the ruling is likely to place pressure on both governments in Westminster and Holyrood to “rewrite” the Equality Act.
The 88-page ruling stated that if the word “sex” did not only mean biological sex in the 2010 legislation, providers of single-sex spaces including changing rooms, homeless hostels and medical services would face “practical difficulties”.
