The Supreme Court of the United Kingdom and its Legal Definition of a “Woman” in the Context of the Equality Act 2010
On 16 April 2025, the UK Supreme Court handed down an 87-page judgement in the case of For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent), following a hearing on 26 and 27 November 2024. The Court confirmed that it was not its role “to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010.” However, the judges distinguished between “biological sex”, which is assigned at birth, and “certificated sex”, which is defined by a Gender Recognition Certificate acquired under the Gender Recognition Act (GRA) 2004. It is worth noting that the Scottish Parliament had earlier attempted to reform the GRA to allow gender self-identification and facilitate gender reassignment, but the Scottish Gender Recognition Reform (Scotland) Bill, passed on 22 December 2022, was vetoed by Westminster.
For Women Scotland, “a group of women from all over Scotland working to protect and strengthen women and children’s rights”, had challenged the legality of the statutory definition of “woman” in section 2 of the Gender Representation on Public Boards (Scotland) 2018, partly because it related to a matter reserved to the UK Parliament, lying beyond the legislative competence of the Scottish Parliament. This definition classed people “living as a woman”, including those who had either undergone or were proposing to undergo gender reassignment, as women. The Supreme Court, however, ruled that the Scottish definition did not have the same meaning as a “woman” as defined by sections 11 and 212 of the Equality Act (EA) 2010.
The verdict was rapturously received by the triumphant appellants. Marian Calder and Susan Smith, co-founders of For Women Scotland, along with others chose to celebrate with champagne outside the Court building in Westminster. Celebrity author JK Rowling, a prominent supporter and financial backer of their campaign, was equally jubilant, taking to X to declare: ‘I love it when a plan comes together.’
The transgender community is a rather diverse group, including people who have “socially transitioned” as well as others who are in varying stages of “medical transitioning”, including hormonal therapy and gender reassignment surgery. The Supreme Court has acknowledged that “the trans community is both historically and currently a vulnerable community.” Gender reassignment is already a protected characteristic for transgender people under the EA 2010, as is sex for women-a definition which excludes trans people as determined by the Court. Despite this safeguard, transgender people, including activists and campaigners, and their supporters were far from reassured. Accordingly, a public demonstration drew thousands to a rally in Parliament Square in central London on 19 April 2025. On the occasion, anti-TERF (Trans-Exclusionary Radical Feminist) and pro-human rights sentiments were expressed and protesters vented their displeasure by defacing seven statues with graffiti. The choice of Earl of Derby, Benjamin Disraeli, suffragist Millicent Fawcett, Nelson Mandela, Viscount Palmerston, Sir Robert Peel, and Jan Smuts appears to have been largely random and opportunistic.
Single-sex exceptions for services and facilities are already protected under the EA 2010, while gender-neutral (unisex) facilities are increasingly available. Opposing camps in the current dispute are at loggerheads over the appropriate use of women-only facilities, which include changing rooms, hostel dormitories, hospital wards, public toilets, sleeper carriages, student accommodation, sports clubs, rape crisis centres, and domestic violence refuges. There are particular concerns over trans women being admitted to women-only prisons, on the grounds that they pose a long-term in-house threat to cis women-a term that is incidentally disliked by feminists. It must be remembered that while there may well be some predatory “men in women’s skirts”, women are at far greater risk from predatory cis men who masquerade as females than from their trans counterparts. On the other matter of gender-affected activities, it seems reasonable that athletes should not be unfairly disadvantaged by the physical strength, stamina or physique of transitioning competitors from the complementary biological sex.
The last word has yet to be said in the polarised and heated debate between transgender activists who espouse gender identity and self-determination and feminists who are committed to upholding the primacy of biological sex. Henceforth, many public-sector organisations will be forced review their working practices and implement changes in line with the Supreme Court’s recent decision, which has been welcomed by the chair of the Equalities and Human Rights Commission (EHRC). It may prove challenging to monitor implementation of any new policies, particularly since it is not always practical to confirm biological sex in contentious situations by ascertaining whether a person has either a penis or a vagina. As a compromise, trans people may eventually be forced into safe “third spaces”, as suggested by the EHRC chair, rather than feel threatened in, and possibly threaten some users of, women-only single-sex spaces. All one can say as an observer from afar is that the cracks in an already divided world are widening.
Ashis Banerjee