The UK Supreme Court has ruled that the terms “woman” and “sex” in the Equality Act 2010 refer to biological sex, siding with the campaign group For Women Scotland (FWS) in a significant legal challenge, reports RTE.
The case stemmed from a dispute over Scotland’s 2018 Gender Representation on Public Boards Act, which mandates that 50% of public board members be women. FWS argued that including trans women—those with a gender recognition certificate (GRC)—in this definition undermined sex-based rights, reports RTE.
FWS said failing to anchor the definition of sex in its “ordinary meaning” could affect everyday single-sex services such as public toilets and hospital wards. Lawyers for the Scottish government, however, maintained that people who have obtained a GRC are legally recognised as having changed sex.
At a hearing in November, the Supreme Court considered whether someone with a GRC should be treated as female under the Equality Act. The court unanimously agreed with FWS, rejecting the Scottish government’s interpretation, reports RTE.
Deputy President of the Supreme Court, Lord Hodge, delivering the judgment alongside four other justices, said: “The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”
During the hearing, Aidan O’Neill KC, representing FWS, criticised the Scottish ministers’ position that “certificated sex”—as shown on amended birth certificates—determines legal sex under the Equality Act. He called that interpretation “just wrong and should be rejected by the court,” reports RTE.
Ruth Crawford KC, representing the Scottish government, argued that someone who becomes a woman through a GRC “is entitled to those protections just as much as others enjoy those protections who are recorded as a woman at birth.” She warned that if FWS succeeded, trans women with GRCs would effectively “remain men until death for the purposes of the Equality Act.”
Since the Gender Recognition Act came into effect in 2004, 8,464 people in the UK have obtained a GRC, the court was told.
LGBTQ advocacy group Stonewall voiced concern over the ruling. CEO Simon Blake said: “Stonewall shares the deep concern at the widespread implications for today’s ruling from the Supreme Court,” calling it “incredibly worrying for the trans community,” reports RTE.
The legal dispute began in 2022 when FWS successfully challenged the inclusion of trans women in the definition of “woman” under the 2018 Scottish legislation. The Court of Session ruled that the Scottish Parliament had exceeded its authority by redefining terms already covered by the UK-wide Equality Act.
The Scottish government responded by removing the contested definition and issuing revised guidance, stating that the definition of a woman aligned with that in the Equality Act 2010 and that those with a female GRC were legally considered women, reports RTE.
FWS challenged the new guidance, arguing it again blurred the biological definition of sex, and accused the Scottish government of overstepping its legislative powers. That challenge was rejected twice in the Court of Session, first in December 2022 and again by the Inner House in November 2023.
However, FWS was granted leave to appeal to the UK Supreme Court, which has now found in its favour, reports RTE.
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