The UK Supreme Court has ruled the legal definition of a woman excludes trans women, although trans folks are still protected from discrimination under equality law.
Announcing the court’s decision on Wednesday (16 April), Supreme Court judge Lord Hodge said the 2010 Equality Act’s definition of a woman is based on biological sex.
“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,” he said.
“But we counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another, it is not,” he added, noting that trans people still have protection under the law.
He further said that “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”.
The ruling will have wide-ranging implications for the trans and non-binary community across the country, particularly in how public bodies and organisations operate with regard to issues such as single-sex spaces.
The landmark case was brought forward by gender-critical group For Women Scotland (FWS) against the Scottish government and followed as a direct challenge to a previous ruling, which found that sex is not limited to biology.
FWS, who have been publicly supported by gender critical author JK Rowling, describes itself as a “grassroots women’s group” founded at a time of “growing unease about how women’s rights would be affected by the Scottish government’s plans to reform the Gender Recognition Act (GRA), to allow for self-declaration of sex”.
The group asked the five justices – Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Rose and Lady Simler – to consider: “Is a person with a full Gender Recognition Certificate (GRC) which recognises that their gender is female, a ‘woman’ for the 2010 Equality Act?”
Effectively, the judges had to decide if the protected category of ‘sex’ is based solely on the biology a person is born with, such as their reproductive organs and chromosomes, or if it is something that can change based on gender identity and the gender-recognition process.
The case was a direct challenge to judge Lady Haldane’s ruling in December 2022 that stated sex is “not limited” to biological sex and the ability of a Gender Recognition Certificate (GRC) to change a person’s legal sex “does not offend against, or give rise to any conflict with, legislation where it is clear that ‘sex’ means biological sex”.
That ruling itself came after a tense legal battle following the Scottish government adding an amendment to a 2018 bill aimed at increasing the number of women represented on public boards, with the amendment seeking to alter the definition of women to included trans women.
Although FWS lost the initial challenge, a series of appeals went their way.
Whilst the Scottish government dropped the amendment from the the bill, it issued guidance for how the legislation should be interpreted, saying the category of “women” was defined by the Equality Act and the Gender Recognition Act and a person with a full GRC should be considered female “for all purposes”.
This is a breaking news story – more to come.
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