The Supreme Court has announced that the definition of a woman is based on biological sex in a landmark judgement.
Lord Hodge said that five Supreme Court justices had unanimously decided that ‘the terms woman and sex in the Equality Act refer to a ‘biological woman and biological sex’.
He recognised ‘the strength of feeling on both sides’ and cautioned against seeing the judgement as a triumph for one side over another, stressing that the law still gives trans people protection against discrimination.
In an 88-page ruling, the justices said: ‘The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary, a person is either a woman or a man.’
The decision could have far-reaching implications on how sex-based rights apply, including how women-only spaces are allowed to operate.
Conservative leader Kemi Badenoch praised the ruling as a ‘victory’ for women and said it meant the ‘era of Keir Starmer telling us women can have penises has come to an end’.
The judgement marks the culmination of a long-running legal battle between the Scottish government and a women’s group over the definition of a ‘woman’ in Scottish legislation mandating 50 per cent female representation on public boards.
The case centred on whether somebody with a gender recognition certificate (GRC) recognising their gender as female should be treated as a woman under the 2010 Equality Act.
The Scottish government argued that such people are entitled to sex-based protections, while campaign group For Women Scotland (FWS) claimed they only apply to people that are born female.
The action sought to overturn a decision by the Scottish courts in 2023 which found that treating someone with a GRC as a woman under the Equality Act was lawful. The outcome will have implications in England, Scotland and Wales.
In handing down the court’s judgement, Lord Hodge said: ‘The unanimous decision of this court is that the terms ‘woman’ and ‘sex’ in the Equality Act 2010 refer to biological woman and biological sex.’
‘In a judgement written by Lady Rose, Lady Simler and myself, with whom Lord Reed and Lord Lloyd-Jones agree, we unanimously allow the appeal,’ he added.
Lord Hodge said: ‘But we counsel against reading this judgement as a triumph for one or more groups in our society at the expense of another. It is not…
‘The Equality Act gives transgender people protection not only against discrimination through the protected characteristics of gender reassignment, but also against direct discrimination, indirect discrimination, and harassment, in substance in their acquired gender.’
He recognised the ‘strength of feeling on all sides’ which lies behind the case, adding: ‘On the one hand women, who make up one half of the population, have campaigned for over 150 years to have equality with men and to combat discrimination based on their sex. That work still continues.
‘On the other hand, a vulnerable and often harassed minority, the trans community, struggle against discrimination and prejudice as they seek to live their lives with dignity.’
The judgement was celebrated by women’s rights groups, who cheered outside the court, opened a bottle of champagne and broke into song after the ruling was handed down.
But a furious protester shouted ‘trans rights are human rights’ at those gathered, adding: ‘Even if you kill every last one of us another will be born tomorrow.’
Marion Calder, co-director of FSW which successfully challenged the Scottish Government, told the Daily Mail that she is ‘absolutely’ delighted by the judgement.
‘As I’m sure the vast majority of women across Great Britain feel,’ she said.
‘Even today we had absolutely no idea which way this was going to go. We’re just a grass routes organisation that started up in my living room ten years ago with absolutely nothing but a plan to fight back to maintain women’s rights.
‘We actually thought that if we just spoke to governments either here in Westminster or up in Scotland that they would listen, but we were unfortunately mistaken.’
She said that she ‘certainly hopes’ it draws a line under the gender debate, adding: ‘In day to day life, you can go around and it doesn’t really matter what your sex is.
‘But in certain circumstances it is very important, such as prisons or women’s sport, changing rooms or rape crisis centres. This is where it’s actually important.
‘Especially for the lesbians who intervened in this case, if they hadn’t actually won today it would have been illegal for lesbians, or gay men, to have a group of more than 25 people if they didn’t admit the opposite sex and we’d have the ridiculous notion of a lesbian with a penis.’
Maya Forstater, chief executive of human rights charity Sex Matters which intervened in the case, also said she is ‘delighted’ by the outcome.
She added: ‘We are delighted that the Supreme Court has accepted the arguments of For Women Scotland and rejected the position of the Scottish Government.
‘The court has given us the right answer: the protected characteristic of sex – male and female – refers to reality, not to paperwork.’
Conservative party leader Mrs Badenoch praised campaign group FWS.
‘Saying ‘trans women are women’ was never true in fact, and now isn’t true in law either,’ she said.
‘This is a victory for all of the women who faced personal abuse or lost their jobs for stating the obvious. Women are women and men are men: you cannot change your biological sex.
‘The era of Keir Starmer telling us women can have penises has come to an end.
‘Well done to For Women Scotland!’
While Mims Davies, the shadow minister for women, hailed it as a ‘clear victory for common sense’.
The UK Supreme Court decision is a ‘victory for women across the United Kingdom’, the leader of the Scottish Tories has said.
Russell Findlay hailed the decision, which confirmed that the definition of woman in the 2010 Equality Act refers to biological women, as an ‘abject humiliation for the SNP’.
Kate Barker, chief executive of LGB Alliance which intervened in the case, described the judgment as a ‘profound relief’.
She said it marks a watershed moment in the fight for lesbian rights following years of mounting attacks, in particular from proponents of gender identity ideology.
‘The ruling confirms that the words ‘gay’ and ‘lesbian’ refer to same-sex sexual orientation and makes it absolutely clear that lesbians wishing to form associations of any size are lawfully entitled to exclude men – whether or not they possess a GRC,’ she said.
‘It is difficult to express the significance of this ruling: it marks a watershed for women and, in particular, lesbians who have seen their rights and identities steadily stolen from them over the last decade.’
Baroness Kishwer Falkner, chair of the Equality and Human Rights Commission, said: ‘Today the Supreme Court ruled that a gender recognition certificate does not change a person’s legal sex for the purposes of the Equality Act.
‘We are pleased that this judgment addresses several of the difficulties we highlighted in our submission to the Court, including the challenges faced by those seeking to maintain single-sex spaces, and the rights of same-sex attracted persons to form associations.
‘As we did not receive the judgment in advance, we will make a more detailed statement once we have had time to consider its implications in full.’
The United Nation’s special rapporteur on violence against women and girls praised the ruling as a ‘triumph of reason and facts’.
‘I welcome this decision by the UK Supreme Court holding that the term ‘man’ ‘woman’ and’sex’ in the Equality Act of 2010 refers to biological sex,’ Reem Alsalem said.
‘It represents the triumph of reason and facts based deliberations and the return of common sense.
‘Congratulations to For Women Scotland and all their allies that have supported them in their quest to uphold the rights of women to equality and non-discrimination.
‘The ruling is a recognition that the erasure of the ordinary meaning of sex in law and in policies has rendered it impossible to upholding the protection [of] women, including lesbians on the basis of the characteristic of sex. Beyond the UK, I hope other jurisdictions are paying attention to this groundbreaking ruling.’
Lara Brown, Policy Exchange Senior Research Fellow for culture and identity, said: ‘By confirming that ‘sex’ in the Equality Act 2010 means ‘biological sex’, the Supreme Court has secured women’s sex-based rights – rights to which they have always been entitled as a matter of law.
‘While this is a welcome victory, it should never have been left to the courts to answer the question of ‘what is a woman?.
‘Had the Government used their statutory powers to clarify that sex in the Equality Act 2010 means biological sex, when Policy Exchange called for them to do in 2023, the Scottish Ministers would never have been able to issue unlawful advice on the subject.’
Ceri Williams, from Labour Women’s Declaration, told the Mail: ‘The Labour Government has repeatedly stated its commitment to the single-sex exceptions in the Equality Act for biological women. It was in their manifesto.
‘The work starts today to make sure that all governments departments and public bodies review and revise all their policies to bring them in line with this common sense judgement from the Supreme Court.’
Former SNP MP Joanna Cherry KC said former Scotland First Minister Nicola Sturgeon owes her an apology.
‘I’m a long-term feminist. I’m a lesbian who came out in the ’80s and campaigned against Section 28,’ she said.
‘I’ve had to put up with my own party leader, Nicola Sturgeon, calling me a bigot and a transphobe for sticking up for the rights of women and lesbians.
‘I think she owes all of us, not just me, and more importantly the women of Scotland, an apology.’
TV writer Graham Linehan, who was outside court following the decision, said: ‘I think for 10 years we’ve had we’ve had two things fighting each other, which is women’s rights and the desire of some men to be considered women in all circumstances.
‘And today that that is no longer tenable. I think that, people have been harassed out of their jobs have been put in prison cells, dragged through tribunals or have had to launch tribunals themselves.
‘I think that’s all over. So I couldn’t be happier.’
But a pro-transgender grup has claimed that the gender-critical campaigners have ‘links to the global far-Right’.
‘The Supreme Court’s decision is hugely disappointing, and a result of ceaseless lobbying from a well-funded anti-trans network with links to the global far-Right,’ Labour for Trans Rights said.
‘We will continue to fight against all attempts to strip trans people of their rights, and will use all levers within the Labour Party to make trans voices heard.’
In an 88-page judgment, Lord Hodge, Lady Rose and Lady Simler said that while the word ‘biological’ does not appear in the definition of man or woman in the Equality Act, ‘the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman’.
The justices added that interpreting biological sex with GRCs would ‘cut across the definition of the protected characteristic of sex in an incoherent way’.
They continued: ‘We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of, biological, women and girls, or men and boys, with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.’
The justices said that transgender people are still protected from discrimination, but that ‘gender reassignment and sex are separate bases for discrimination and inequality’.
They said: ‘This conclusion does not remove or diminish the important protections available under the Equality Act 2010 for trans people with a GRC as we have explained.
‘To the contrary, this potentially vulnerable group remains protected in the ways we have described.’
Their judgement also ruled that the certificated sex interpretation would have ‘rendered meaningless’ a section of the 2010 Equalities Act dealing with protection from discrimination on the grounds of sexual orientation.
This interpretation would mean ‘a trans woman (a biological male) with a GRC (so legally female) who remains sexually oriented to other females would become a same-sex attracted female, in other words, a lesbian’ and would lead to an ‘inevitable loss of autonomy and dignity for lesbians’ as well as impacting lesbian clubs and associations.
The judgment continues: ‘Read fairly, references to sex in this provision can only mean biological sex. People are not sexually oriented towards those in possession of a certificate.’
A Government Spokesman said: ‘We have always supported the protection of single sex spaces based on biological sex.
‘This ruling brings clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs.
‘Single sex spaces are protected in law and will always be protected by this government.’
The Gender Representation on Public Boards (Scotland) Act 2018 is a piece of legislation intended to increase the proportion of women on public boards in Scotland.
In 2022, FWS successfully challenged the original act 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.
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 sex under the Equality Act referred to its biological meaning and said the Government was overstepping its powers by effectively redefining the meaning of ‘woman’.
However, their 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 the judgment on April 16.
During the hearing, Aidan O’Neill KC, for FWS, told justices the Scottish ministers’ position that sex, man and woman in the Equality Act refer to ‘certificated sex’- as the sex on a person’s birth certificate which could be amended by a GRC – is ‘just wrong and should be rejected by the court’.
But Ruth Crawford KC, for the Scottish Government, said a person who becomes a woman ‘in consequence of a GRC’ is entitled to those protections ‘just as much as others enjoy those protections who are recorded as a woman at birth’.
She also said the ‘inevitable conclusion’ of the FWS challenge is that trans women with GRCs would ‘remain men until death for the purposes of the Equality Act’.
The court was also told that since the Gender Recognition Act was passed in 2004, 8,464 people in the UK had obtained a GRC.
When the group’s legal argument was published ahead of the appeal last year, FWS director Trina Budge said: ‘Not tying the definition of sex to its ordinary meaning means that public boards could conceivably comprise of 50% men, and 50% 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.’
Daily Mail UK
