Supreme Court hearing case on definition of a woman

Judges at the Supreme Court are examining how women are defined in the law in a landmark case initiated by Scottish campaigners. This case marks the peak of an ongoing legal dispute originating from a relatively niche piece of legislation in the Scottish Parliament, which might have significant implications across the UK. It aims to clarify how the law should treat trans individuals and define the gender recognition process, affecting the management of single-sex spaces, services, and anti-discrimination measures in the future.

As ‘BBC’ reports, the case began on Tuesday with judges hearing from lawyers representing the For Women Scotland campaign group, which is concerned about the impact of trans rights on women's rights. The Scottish government’s legal team will present their case on Wednesday, after which the judges will deliberate and issue a ruling—a process that could take several weeks.

At its core, the case questions what “sex” signifies in legal terms—whether it is about biology and chromosomes set at birth, or if it includes gender identity through the gender recognition process. The Gender Recognition Act of 2004 outlines obtaining a gender recognition certificate, which signifies a change of sex “for all purposes.” Once acquired, a person’s sex legally changes according to their recognised gender. The Equality Act of 2010 provides legal protections against discrimination for specific groups, including “sex,” “sexual orientation,” and “gender reassignment,” simply defining a woman as “a female of any age.”

There has been debate over how these two laws overlap. When the Equality Act refers to “sex,” the question arises whether it pertains to biological sex or legal, certificated sex as defined by the GRA. This case will not change the law’s text but could significantly influence its interpretation, affecting how public bodies and services operate and potentially exposing them to legal challenges.

The controversy is heightened by discussions around potentially streamlining the gender recognition process—a proposal blocked by the UK government, citing a “significant impact” on the Equality Act. This issue also affects other debates, such as Scotland's Rape Crisis network, which is struggling with how to define women and maintain single-sex spaces. Public bodies have expressed frustration over the lack of clarity, leaving them to self-determine policy.

Police Scotland, which has faced scrutiny over its treatment of transgender individuals, criticised the lack of guidance from politicians in Edinburgh and London regarding reconciling the gender recognition process with the Equality Act. With political leaders cautious about addressing this divisive topic, the courts have been left to resolve it.

Holyrood enacted the Gender Representation on Public Boards (Scotland) Act in 2018 to increase female representation on public sector boards, defining “woman” to include those “living as a woman” and undergoing or planning gender reassignment. For Women Scotland challenged this definition and succeeded, leading the Scottish government to amend the bill. However, they issued new guidance including women as defined by both the Equality Act and GRA. This led to another judicial review, culminating in a 2022 ruling by Judge Lady Haldane that sex includes those with a gender recognition certificate. This decision is now being contested at the Supreme Court.

The court is considering whether individuals with a full gender recognition certificate are classified as “women” under the Equality Act. Aidan O’Neill KC, representing For Women Scotland, argued for the “common sense” interpretation that sees sex as an immutable biological state essential to safeguarding women’s rights. He insisted that the Equality Act supersedes the GRA due to its acknowledgment of other legislative provisions.

Mr. O'Neill refuted claims that the case is “transphobic,” arguing that equality law should not lead to “absurd or nonsensical outcomes,” using examples like heterosexual men acquiring gender recognition certificates potentially affecting lesbian groups. He emphasised that the court should challenge patriarchal actions and consider women’s spaces like hospital wards and prisons, which could be impacted by gender recognition certificates.

The Scottish government maintains that the legislation’s language is clear and that MPs were aware of their intentions when passing the laws. They argue there's no provision in the Equality Act that alters the GRA’s terms. Their legal position is presented by Ruth Crawford KC.

Five judges, led by Lord Reed, will hear these arguments and deliberate before making a judgment.

The case has become highly charged as people on both sides perceive it as a threat to their identities. The latest census shows that about 19,990 people in Scotland and around 262,000 in England and Wales have a different gender identity from their birth sex. Although there is some uncertainty over these figures, 1,088 full gender recognition certificates were issued across the UK in 2023-24, reflecting a rising trend.

Equality groups warn that this case could weaken protections for various minority groups under the Equality Act. For trans individuals, there's concern it could undermine their legal protections. If someone with a gender recognition certificate identifies as a woman, they question whether they would be protected from sex discrimination under the Equality Act or eligible to make an equal pay claim.

The UK’s first trans judge has attempted to pursue a pensions claim based on similar grounds. Women’s groups argue that the ruling will affect many, impacting single-sex services and spaces protected by the Equality Act, such as support groups for sexual abuse victims.

Lesbian groups worry about their ability to maintain exclusive clubs. Politically, the case is prompting calls for MPs to clarify the law by amending the Equality Act. The Equality and Human Rights Commission, the case’s national equalities regulator, has requested action, stating parliament should address the situation urgently. However, many equality groups oppose reopening the Equality Act, fearing it could dilute protected groups’ rights.

Politicians have shown little inclination to address this contentious issue. While Nicola Sturgeon previously led efforts for self-identification reforms, her successors have backed away. At the UK level, revising the Equality Act was a Conservative campaign pledge, but not supported by Sir Keir Starmer.

The ruling could influence the legal interpretation and spark parliamentary reform discussions.