Summary
- The UK Supreme Court rules that the legal definition of a woman is based on biological sex
- Judges say the “concept of sex is binary” while cautioning that the landmark ruling should not be seen as victory of one side over another
- Transgender people still have legal protection from discrimination, the court adds – read the full 88-page judgement here
- There were tears and hugs in the courtroom as campaigners from For Women Scotland celebrated after their six-year legal battle with the Scottish government
- The Scottish government had argued that transgender people with a gender recognition certificate (GRC) are entitled to sex-based protections, while For Women Scotland argued they only apply to people that are born female
UK’s highest court says legal definition of woman is based on biological sex
The Supreme Court has ruled that the legal definition of a woman is based on biological sex, in a decision which could have far-reaching implications for who can access single-sex services and spaces.
It came about after the Scottish government included transgender women in quotas to ensure gender balance on public sector boards. Campaign group For Women Scotland argued that sex-based protections should only apply to people born female.
The judges were tasked with deciding on the correct interpretation of “sex” and “woman” in the main piece of legislation setting out sex-based legal protections.
Specifically, they ruled that the definition of sex as used in the Equality Act 2010 is “binary” and decided by biology – a person who was not born as a biological female cannot obtain the legal protections the Act affords to women by changing their gender with a Gender Recognition Certificate.
It’s important to note that the Act still provides transgender people with protections against discrimination, and that the judges said it was not their place to weigh in on those definitions in the wider public debate.
Our social affairs editor Alison Holt writes that the judgment brings clarity on the law, but the jury is still out on what day-to-day differences it will make.
We’re stopping our live coverage now. We appreciate there’s been a lot of information and different arguments to digest. If you want to read more, we’ve recapped the arguments made in the case, its journey to the Supreme Court, and the judges’ verdict and reactions to it.
Scottish government says it acted in good faith
The Scottish government has just released a statement in which it says it accepts the Supreme Court judgment, which ruled in favour of For Women Scotland’s challenge against it.
A spokesperson says: “The Supreme Court rightly counselled against reading this judgment as a triumph of one or more groups in our society at the expense of another. It is not.
“The ruling gives clarity between two pieces of relevant legislation passed at Westminster. We will now engage on the implications of the ruling. Protecting the rights of all will underpin our actions.”
The statement continues: “The Scottish government acted in good faith in our interpretation of both the Gender Recognition Act 2004 and the Equality Act 2010; and our approach was guided by the published guidance of the EHRC.
“The Supreme Court judgment explicitly references that this stance was consistent with the advice given by the Equality and Human Rights Commission (EHRC).
“We will be engaging with the UK government to understand the full implication of this ruling, particularly in relation to Equalities law, which remains largely reserved.
“And we will engage with the EHRC as a matter of urgency on the need to review its guidance considering this judgment.
“Finally, we want to reassure everyone that the Scottish government is fully committed to protecting everyone’s rights, to ensure that Scotland remains an inclusive country.”
Amnesty concerned misinformation could lead to discrimination against trans people
In November, Amnesty International UK intervened, external in the Supreme Court case to call for legal protections for trans people.
The human rights group’s chief executive Sacha Deshmukh says it has been a “very febrile public debate” which has seen “misinformation communicated”.
He’s calling on the government and public policy makers to be clear how anti-discrimination provisions will be “strongly enforced” to protect for the trans community “from any discrimination or prejudice by anyone who tries to use this judgement as a justification for doing so”.
‘I think it gives a lot of clarity’ – campaigner
Dr Annie Donaldson, who researches domestic abuse and violence against women and is a supporter of For Women Scotland, tells the BBC she is “delighted” by today’s ruling.
She says: “I think it gives extreme legal clarity to the issue it was all about, ‘what exactly is a women?’.
“The fact that ‘woman’ is now clearly defined in law is really, really important because there are occasions and situations and settings where it wasn’t terribly clear.”
Dr Donaldson adds: “I think it gives a lot of clarity, huge clarity to that particular definition.”
She stresses she would not support discrimination against anyone, particularly not trans people.
“That’s not acceptable under any circumstances in any situation,” she says.
UK government says ruling brings clarity
Reacting to the Supreme Court ruling, a UK government spokesperson 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.”
‘You cannot change biological sex’ – Badenoch
UK Conservative Party leader Kemi Badenoch has congratulated For Women Scotland and says the ruling is a “victory”.
She says: “Saying ‘trans women are women’ was never true in fact, and now isn’t true in law either.
“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.”
Greens say Supreme Court ruling is ‘deeply concerning for human rights’
Scottish Greens MSP Maggie Chapman has given her reaction to the ruling.
She says: “This is a deeply concerning ruling for human rights and a huge blow to some of the most marginalised people in our society.
“It could remove important protections and will leave many trans people and their loved ones deeply anxious and worried about how their lives will be affected and about what will come next.
“Trans people just want to be able to live their lives like any of us, without the fear of prejudice or violence, but today they have been badly let down.”
Chapman adds: “We will always stand up for human rights, dignity and respect for all people. We will stand with the trans community today, tomorrow and always.”
EHRC welcomes protection of single-sex spaces
The Equality and Human Rights Commission (EHRC) says it is happy with the court’s decision, but needs more time to consider the implications in full.
Chairwoman Baroness Kishwer Falkner says: “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.”
She adds that the EHRC did not receive the judgement in advance and says it will make a more detailed statement later.
Harman: ‘Ruling protects rights of women and trans women’
Former Labour MP Harriet Harman has praised the Supreme Court for “correctly” interpreting the Equality Act in today’s judgement.
“Single sex spaces for women are important & can exclude trans women but only where necessary”, she writes in a social media post.
“The Act, & ruling, protects rights of women while also respecting the rights of trans women.”
Harman, who now chairs a women’s rights group, was involved in drafting the Equality Act, and she says today’s ruling gives “effect to our intention when drafting it”.
Trans women not defined as women in representation on boards
The long-running legal dispute began with a bill passed at Holyrood in 2018 which aimed to ensure gender balance on public sector boards.
Lobby group For Women Scotland complained that ministers had included trans people as part of the quotas in that law.
The court concluded that a person with a Gender Recognition Certificate does not come within the definition of a “woman” in relation to the sex discrimination section of the Equality Act 2010.
However, the panel added that there was nothing in its judgment which had intended to discourage the appointment of trans people to public boards or to minimise the importance of addressing their under-representation on such boards.
The judgement reads: “The issue here is only whether the appointment of a trans woman who has a GRC counts as the appointment of a woman and so counts towards achieving the goal set in the gender representation objective, namely that the board has 50% of non-executive members who are women. In our judgment it does not.”
This ruling goes beyond what For Women Scotland had hoped for
The judges stressed that this ruling should not be read as a triumph for one group in society over another, but For Women Scotland were clearly the ones celebrating their win.
There were tears and hugs in the courtroom, then a bottle of champagne was cracked open outside.
This ruling goes beyond what they had hoped for – it is an unambiguous statement from the court that sex-based rights under the Equality Act are based on biological sex.
It’s important to stress that this does not wipe away protections for trans people; the characteristic of gender reassignment remains in place.
But this is a landmark moment in the gender debate. And it’s one which the campaigners are going to use to press the government over its wider policies and guidance. There will inevitably be questions for Scottish ministers, who have lost in the highest court in the land.
Having completed its six-year journey through the legal arena, this often-contentious debate is heading back into the political one.
Read the 88-page judgement in full
It took Lord Hodge 16 minutes and 46 seconds to deliver just a summary of today’s judgement.
The full document is 88 pages long.
The judgement, which you can read for yourself, external, outlines the reasons behind today’s ruling that the terms “woman” and “sex” in the Equality Act refer to a biological woman and biological sex.
‘There is going to be an ongoing fight’
Outside the Supreme Court, Susan Smith of For Women Scotland says: “What our politicians need to get their heads around is this is the law.
“They need to stop putting faulty guidance into schools and hospitals.”
“There is going to be an ongoing fight,” she says, adding: “Now we have a really concrete basis for going forward.”
Sex discrimination cases interpreted as referring to biological women
Lord Hodge continued his nine points by saying the fourth point is that “as a matter of ordinary language” cases relating to sex discrimination can “only be interpreted” as referring to biological women.
The fifth point stated that the court rejected the suggestion that words like women can be “variable”. If references to pregnancy were “only” for biological women but other references in the legislation were for “certificated sex” then the “coherence” of the legislation would be undermined.
The sixth point states that the Scottish government’s interpretation of the Act would “create two sub-groups” with trans people possessing a gender recognition certificate having more rights than those who did not. There would be “no obvious means” of distinguishing between sub-groups, as details on who had a certificate would be private, he said.
Scottish trans charity urges people ‘not to panic’
Edinburgh-based trans rights charity Scottish Trans says it is urging people “not to panic” after a ruling that the legal definition of a woman is based on biological sex.
“There will be lots of commentary coming out quickly that is likely to deliberately overstate the impact that this decision is going to have on all trans people’s lives,” the charity writes on social media platform Bluesky.
“We’ll say more as soon as we’re able to. Please look out for yourselves and each other today,” the statement adds.
Trans women still have legal protection, says Supreme Court
The Supreme Court says its interpretation should not remove protection from transgender people, whether or not they have a Gender Recognition Certificate (GRC).
It adds: “Trans people are protected from discrimination on the grounds of gender reassignment.”
The ruling also says trans women can claim sex discrimination because they are perceived to be women.
A GRC is not required to give this legal protection.