For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent)- UKSC/2024/0042
Yesterday, the Supreme Court made a landmark decision, ruling that the terms “woman” and “sex” in the Equality Act 2010, refer to a biological woman and biological sex and did not include transgender women who hold Gender Recognition Certificates (GRCs). The five judges arrived at this decision unanimously.
The judgement, delivered by Lord Hodge, went to pains to qualify that this was not a decision against transgender individuals who are protected against discrimination under other provisions in the Act. However, it will be viewed as a significant victory for gender critical campaigners who appealed, and a defeat for the Scottish Government, preventing transgender women from sitting on seats reserved on public bodies for women.
It will probably have more far reaching effects on spaces and services used by transgender women as well as policy-making in sports, hospitals, prisons, access to changing rooms and women-only spaces. Some commentators have expressed relief that it has brought clarity to the legislation meaning that it may save litigation in the future, while others see it as having worrying ramifications for the transgender community.
The case focused on statutory guidance issued by the Scottish Government for an Act that set targets for increasing the proportion of women on public boards in Scotland. The guidance, which was required to be in line with the Equality Act 2010, stated that “woman” includes a person whose “acquired gender is female” under the GRA 2004.
The grassroots organisation For Women Scotland challenged that guidance in the Scottish Court of Session and lost. That, in effect, removed the category of biological sex as a protected characteristic from the Equality Act, ruling that references to “male” and “female” should be taken to refer to sex as modified by a GRC.
The case was not about gender self-identification, that is, challenging how individuals wish to be viewed in terms of their desired gender. It was about a discrete group of 8000 people who had GRCs in Scotland because the courts had already decided that individuals who identify as non-binary or of the opposite sex, remain legally their biological sex.
The two day hearing heard impassioned representations on both sides, with the judges being challenged with the idea that the terms “male” and “female” could become “certified male” and “certified female” as well as dealing with complex concepts such as male lesbians and pregnant men, in order to understand the legal implications.
The significance of this case decision is that it is not just about quotas on public boards in Scotland but will settle the meaning of sex in the Equality Act, not just in Scotland but across the UK.