THE terms “woman” and “sex” in the Equality Act refer to a biological woman and biological sex, the Supreme Court has ruled.
The ruling follows a series of challenges brought by the campaign group, For Women (FWS), over the definition of “woman”.
Scottish legislation mandates 50 per cent female representation on public boards.
The dispute centred on whether or not somebody with a gender recognition certificate (GRC) recognising their as female should be treated as a woman under the 2010 Equality Act.
FWS previously said that not tying the definition of sex to its “ordinary meaning” could have far-reaching consequences for sex-based rights.
It could also have a profound effect on “everyday single-sex services” like toilets and hospital wards.
Lord Hodge set out the central question of today's ruling.
He said: “Our role is to ascertain the meaning of the legislation which parliament has enacted to that end.
“The central question on this appeal is the meaning of the terms woman and sex in the Equality Act 2010.
“Do those terms refer to biologic women or biological sex?
“Or is a woman to be interpreted as extending to a trans woman with a gender recognition certificate?”
The Supreme Court unanimously allowed an appeal from the campaign group.
It ruled the definition of a woman and sex in the Equality Act relates to “a biological woman and biological sex”.
However Lord Hodge added: “But we counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another.
“The Equality Act 2010 gives transgender people protection not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender.
“This is the application of the principle of discrimination by association.
“Those statutory protections are available to transgender people, whether or not they possess a gender recognition certificate.”
How did we get here?
The matter first came to 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 ‘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.
This stated that under the 2018 Act the definition of a woman was the same as that set out in the .
It also specified 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 sex under the Equality Act referred to its biological meaning.
Women's rights campaigners said 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 .
The appeal at the Supreme Court before Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Rose and Lady Simler was heard last November.
After the two-day hearing, the judges said they would “take time to consider very carefully” before issuing their judgement on April 16.
When FWS' legal argument was published ahead of November's appeal, director Trina Budge said: “Not tying the definition of sex to its ordinary meaning means that public boards could conceivably comprise of 50 per cent men, and 50 per cent men with certificates, yet still lawfully meet the targets for female representation.
“However, the ramifications of this case are much more far-reaching and all sex-based rights protected by the Equality Act are at risk.
“The stakes are high and the court's decision will have consequences for everyday, single-sex services such as toilets and hospital wards.
“It will determine whether a pregnant woman with a GRC is entitled to maternity leave, what it means to be same-sex attracted, and whether a man with a GRC's entitlement to join a group of lesbians takes priority over their right to freely associate with only women.
“Trans rights are protected under the separate category of gender reassignment but, to fully guarantee women's rights, it is increasingly clear that a consistent, biological and factual understanding of sex is the only workable solution.”
During the hearing, Ruth Crawford KC, representing the Scottish Government, said a GRC affected a “change in legal status”.
She added that someone with a GRC “becomes recognised as belonging to, or becoming, the sex of their acquired gender”.
She added: “We submit there are only two sexes or genders, and a person whose sex becomes that of a man or woman in consequence of a GRC belongs to that sex, and will have the protection afforded under the Equality Act”.
The Scottish Government said they were unable to comment on live legal proceedings.
