Supreme Court set to rule on legal definition of 'woman'

15 April 2025, 18:50

The UK Supreme Court is about to rule on the kind of question that has had politicians tied up in knots for years: the definition of the word woman, or at least a definition when it comes to the workings of the Equality Act 2010.

It will be the culmination of a legal fight that started with a niche piece of legislation in Scotland but the result will have an impact the length and breadth of the UK.

How did we get here?

Back in 2018 the Scottish Parliament passed the Gender Representation on Public Boards Bill. It aimed to make boards of public institutions more female friendly - the ultimate aim being they should be split 50:50, men and women.

But the Act used a definition of "woman" which included not just biological, natal women, but men who self-identified as such. A grassroots women's organisation, For Women Scotland (FWS), took the Scottish Government to court, and it was found that the government had surpassed its competencies. It had not used the definitions in the Equality Act 2010.

So changes were made, but only to the extent that "woman" now meant biological woman and men who had transitioned to "live as" women and had been granted a Gender Recognition Certificate (GRC), which the government said, changed their legal status and rights. Transwomen with a GRC had to be regarded legally as women, they argued.

FWS did not agree. Another court battle ensued with FWS losing the last round as Scotland’s highest court ruled that a GRC should be treated as changing a person’s sex under the Equality Act… at least most of the time.

Yes, there was a bit of a fudge, so the ruling currently means “woman” in the Equality Act refers to the biological kind as well as male people with a GRC, though that can be ignored in some situations - though it failed to spell out exactly what those were.

So now the issue is with the Supreme Court for a fourth - and final - ruling.

Basically, the judges will be deciding whether or not a Gender Recognition Certificate does or does not legally change a person’s sex when it comes to how protections in the Equality Act work. There are nine protected characteristics in that Act, including sex and gender reassignment, and its aim is to prevent discrimination based on either of those facets.

But the Gender Recognition Act allows people to legally change their sex, by gaining a GRC. How then does that impact on the rights and protections laid out in the Equality Act?

A GRC is a legal document awarded by an independent panel to transgender people who have “lived as the opposite sex” for two years and have a diagnosis of gender dysphoria. Trans people, and indeed the Scottish Government say having such a document does confer new rights on a person, so if a man has transitioned then he now has the same rights as biological women and therefore legal access to women’s single sex spaces, and indeed should be counted as a woman when public boards are trying to increase their female membership (remember that’s the law that started all this).

FWS argues that the discrimination exemptions carved out in the Equality Act mean that prisons, hospitals, changing rooms, toilets - all places which traditionally have been demarcated on the basis of biological sex - are sacrosanct and no GRC can over-ride that. Not only should women's spaces be just for biological women, but they also argue that women who transition to live as men, and who have GRCs, would lose their maternity and pregnancy protections if the Equality Act works in the way the government claims.

There are also claims by some lesbian women, that allowing transwomen to have the same rights as them under the Equality Act, erases same sex orientation.

Who would be a Supreme Court judge?

If FWS win then it will mean that a GRC does not change a person’s sex under the Equality Act. That could well mean that the block on the Scottish Government’s Gender Recognition Reform Bill, placed on it by the previous UK Government, could be lifted, should the current Labour government choose to do so. Before that though the Scottish Government would have to take another look at it - and would a government in the run up to a Holyrood election want to have that battle all over again? We may be about to find out.

If the Scottish Government wins then it would be clear that having a GRC does give new rights to transgender people. So if you transition from man to woman you will have a legal presumptive right of access to single-sex spaces and services for women. That could well kick start a campaign to have the Equality Act rewritten to make sex solely biological in legal terms, to keep single-sex spaces just that.

Clarity then is what all involved in this case are looking for - but what is very clear is that no matter what the judges say, campaigners on either side of the argument are unlikely to take a loss on the chin. This issue is far from a resolution.