KAMPALA, Uganda The United Kingdom Supreme Court has ruled that a woman is only defined by biological sex, which brings to an end the long battle on how sex rights apply across Scotland, England and Wales.

The court sided with the appellant, which is the campaign group Women Scotland, a feminist voluntary organisation that campaigns to strengthen women’s rights and children’s rights in Scotland. This case was the second challenge by judicial review which the appellant has raised in relation to statutory guidance which the Scottish Ministers promulgated under Section 7 of the Gender Representation on Public Boards. In the first judicial review, the appellant asserted that the statutory definition of woman in the 218 Act was outside the legislative competence of the Scottish Parliament under the Scottish Act 2018.

The appellant challenged the statutory definition of a woman in Section 2 of the 2018 Act and presented statutory guidance dated June 2020 which discussed that definition and explained that a trans woman had to meet the three criteria, i.e., characteristics of gender reassignment, be living as a woman, and be proposing to have undergone part of the process as set out in Section 2 of the 2018 Act.

The appellant’s appeal was successful before the Second Division of the Inner House of the Court of session that for (For Women Scotland Ltd v Lord Advocate [2022] CSIH 4; 2022 SC 150); its judgement dated 18 February 2022 held that “transgender women” is not a protected characteristic under the Equality Act 2010 and that the defintion of a woman adpted in the 2028 Act impinnges on the nature of protected cahracteristics dated 22 March 2022, the second division declared that the definition of a woman in section 2 of the 2018 Act was outside legislative competence of theSottish parliament , in other words, becausse the definition of woman in section 2 of the 2018 Act included tens women as defined; it went beyond the scope of the exception permitted by section L2 of Schedule 5 to the Scotland Act, therefore purpoted to legislated in respect of a resrved matter, namely equal opportunities and so was outside the competence of the Scottish Parliament

The Respondents were solicitors for the Scottish Government Legal Directorate (“SGLD”). In a letter dated 1 June 2022, referred to the EHRC’s guidance entitled “Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions as updated in April 2022 in the light of the the decision of the Inner House which was described above, The letter quoted from section of the Equality and Human Rights Commission guidance which was headed” What the equality Act says about the protected characteristics of sex and gender”

The Scottish Government therefore urged that a trans woman with a full Gender Recognition Certificate is treated by the Equality Act 2010 as having the acquired sex of a woman and therefore is a woman in sections 11 and 212(1) of the EA 2010. They accept the wording of the guidance set forth that it is unfortunate so far; it suggests that the inclusion of trans women with a gender recognition certificate in addition to biological women is included in sections 11 and 212 of the Equality Act 2010.

The court held that women’s sex remains in law their biological sex. The appeal further
addressed the position of the small minority of trans people who possess a full GRC. Ben
Cooper KC, who appears for the intervener, Sex Matters, states in his written
case that based on the most recent census data, the Office of National Statistics estimated
that there are about 48,000 trans men and 48,000 trans women in England and Wales, and
Scotland’s census 2022 found that 19,990 people were trans, compared with a total of
8,464 people who have ever obtained a GRC as of June 2024. He points out that neither
possession of a GRC nor the protected characteristic of gender reassignment requires any
specific physiological change.

Lady Justice Haldane heard the appellant’s challenge in the Outer House. In a carefully
reasoned judgment dated 13 December 2022 ([2022] CSOH 90; 2023 SC 61), she
dismissed the petition. She rejected the appellant’s argument that the Inner House’s
decision in the first judicial review had authoritatively determined that “sex” in the EA
2010 was confined to biological sex only.

The judge held that section 9(1) of the Gender Recognition Act 2004 had changed a person’s sex for all purposes, stating that the language of section 9 of the GRA could scarcely be clear. She further rejected the appellant’s submission that the GRA had a narrow purpose which had been largely superseded by the subsequent legislation, including the establishment of the legality of same-sex marriage. She observed that the GRA 2004 listed exceptions to the rule in section 9(1), such as marriage, parenthood and succession.

Lady Justice Haldane rejected the idea that there was a conflict between the submissions in GRA 2004 and the EA 2010, which she stated were draughted in full awareness that the EA 2010 impliedly repealed section 9 of the GRA, which was not confined to biological sex but included the acquired sex of those who possess a GRC obtained under GRA 2004. Lady Haldane therefore concluded that the revised guidance of the Scottish ministers on the 2018 Act was lawful.