The UK Supreme Court has issued a landmark judgment on how a woman should be defined in law.
The long-running legal challenge centres around how sex-based rights are applied through the UK-wide Equality Act 2010.
They unanimously decided the definition of a “woman” and “sex” in the Equality Act 2010 refers to “a biological woman and biological sex”.
The judges were asked to rule on what that legislation means by “sex” – whether biological sex or “certificated” sex as legally defined by the 2004 Gender Recognition Act.
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Delivering the ruling at the London court on Wednesday, Lord Hodge said: “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.
“The Equality Act 2010 gives transgender people protection, not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender.
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“This is the application of the principle of discrimination by association. Those statutory protections are available to transgender people, whether or not they possess a gender recognition certificate.”
The appeal case was brought against the Scottish government by campaign group For Women Scotland (FWS) following unsuccessful challenges at the Court of Session in Edinburgh.
FWS called on the court to find sex an “immutable biological state”, arguing sex-based protections should only apply to people born female.
The Scottish government argued the protections should also include transgender people with a gender recognition certificate (GRC).
The ruling was made by Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Rose and Lady Simler.
‘Victory for women’s rights’
Trina Budge, director of FWS, described the outcome as a “victory for women’s rights”.
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Speaking to Sky News’ Scotland correspondent Connor Gillies, she said the case was “never about trans rights” as transgender people are “fully protected in law”.
She added: “It means there’s absolute clarity in law regarding what a woman is. We know for sure now that we are referring to the biological sex class of women.
“And that when we see a women-only space, it means exactly that. Just women. No men. Not even if they have a gender recognition certificate.”
The legal dispute stems back to the Gender Representation on Public Boards (Scotland) Act 2018, which aimed to increase the proportion of women on public boards.
For Women Scotland (FWS) successfully challenged the original act over its inclusion of transgender women in its definition of “women”.
The Court of Session in Edinburgh ruled that changing the definition of a woman in the act was unlawful, as it dealt with matters falling outside the Scottish parliament’s legal competence.
The Scottish government dropped the definition from the act and issued revised statutory guidance.
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 gender recognition certificate (GRC) recognising their gender as female had the sex of a woman as per the 2004 Gender Recognition Act.
FWS challenged the revised guidance on the grounds sex under the Equality Act referred to its biological meaning and said the government was overstepping its powers by effectively redefining the meaning of “woman”.
The group argued the guidance could have implications for the running of single-sex spaces and services.
FWS’s challenge was twice rejected by the Court of Session (2022 and 2023), with judge Lady Haldane ruling in 2022 that the definition of sex was “not limited to biological or birth sex”.
FWS was later granted permission to appeal to the UK Supreme Court.
Campaign group Sex Matters, which made arguments in the case, said the court had given “the right answer”.
Chief executive Maya Forstater said: “The protected characteristic of sex – male and female – refers to reality, not to paperwork.”
Meanwhile, transgender woman and Scottish Greens activist Ellie Gomersall said: “This ruling represents yet another attack on the rights of trans people to live our lives in peace.”
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