Supreme court to rule on defining women in law in landmark case

The UK Supreme Court is set to deliberate on a case that could redefine how women are defined in law, following a challenge brought by the campaign group For Women Scotland, as reported by The BBC.

The outcome could have far-reaching implications for legal interpretations of “sex” and gender, the operation of single-sex spaces, and anti-discrimination measures across the UK.

This legal battle stems from the intersection of two pieces of legislation: the Gender Recognition Act 2004 (GRA) and the Equality Act 2010. The GRA allows individuals to obtain a Gender Recognition Certificate (GRC), which legally changes their sex “for all purposes.” The Equality Act, meanwhile, offers protection against discrimination based on characteristics such as “sex,” “gender reassignment,” and “sexual orientation,” defining a woman as “a female of any age.”

The case hinges on whether “sex” in the Equality Act refers to biological sex or the legal sex established by a GRC under the GRA. A ruling will not change the legislation itself but will provide clarity on how these laws interact and are interpreted.

The issue escalated after the Gender Representation on Public Boards (Scotland) Act 2018 aimed to promote gender balance on public boards by defining “woman” to include individuals “living as a woman” and undergoing or intending to undergo gender reassignment. For Women Scotland challenged this definition, and courts ruled that it improperly conflated the Equality Act’s separate protected characteristics of “sex” and “gender reassignment”.

Despite being forced to amend the bill, the Scottish government issued guidance maintaining that the Equality Act includes both biological sex and the legal sex recognized by a GRC. For Women Scotland launched another legal challenge, but in December 2022, Lady Haldane ruled that the Equality Act’s definition of sex could include individuals with GRCs. This ruling is now being challenged at the Supreme Court.

The court will determine whether individuals with a GRC are legally recognised as women under the Equality Act. For Women Scotland argues that “sex” is immutable and biological, asserting that its ordinary meaning must remain to ensure the rights of women. They claim that the Equality Act’s language consistently relies on biological criteria and takes precedence over the GRA.

The Scottish government, however, contends that the Equality Act and GRA coexist harmoniously, with Parliament intending for GRC holders to be recognized as having changed their sex.

The case has reignited debates over the rights of transgender people and the operation of single-sex spaces. Critics argue that including GRC holders in the legal definition of “sex” could compromise women’s protections under the Equality Act, affecting spaces like refuges, hospital wards, and sports. Lesbian groups have expressed concerns over exclusive clubs being impacted.

Transgender rights groups argue that the case could undermine protections against discrimination for those with GRCs, affecting areas like equal pay claims. Equalities groups warn that this case could set a precedent jeopardising protections for various minority groups under the Equality Act.

The Equality and Human Rights Commission (EHRC), intervening in the case, has urged Parliament to clarify the law, citing unintended consequences of the Equality Act that might undermine protections for women and same-sex attracted people. While some advocate for legislative reform, others fear reopening the Equality Act could weaken rights for protected groups.

Five Supreme Court judges, led by Lord Reed, will hear arguments and issue a judgment at a later date. The decision could not only provide clarity on the legal definition of “sex” but also reshape debates around gender recognition and equality legislation, potentially prompting renewed calls for legislative reform.