The definition of a woman and sex in the Equality Act relates to “a biological woman and biological sex”, the Supreme Court has ruled today (April 16) as it unanimously allowed an appeal from a campaign group.
The ruling follows a series of challenges brought by the campaign group, For Women Scotland (FWS), over the definition of “woman” in Scottish legislation mandating 50% female representation on public boards.
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.
Opening the Supreme Court judgement on the appeal by campaign group For Women Scotland over the legal definition of woman, Lord Reed today called on all parties to respect the “dignity” of the court.
He said, “Some people will be pleased and others will be disappointed.
“Whatever your feeling may be, please respect the dignity of these courts and remain silent until the court is adjourned.”
Lord Hodge then began delivering the judgment.
FWS previously said 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.
UK Supreme Court rules on legal definition of a woman
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 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.
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.
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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 that 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 December 13, 2022.
The Inner House upheld that decision on November 1, 2023, but did grant FWS permission to appeal to the UK Supreme Court.
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 April 16.
