The UK Supreme Court will soon rule on the legal definition of a woman, having taken up a historic case brought by anti-trans group For Women Scotland (FWS). The outcome will have a massive effect on transgender and nonbinary people in the UK.
The case asks, “Is a person with a full gender recognition certificate (‘GRC’) which recognizes that their gender is female, a ‘woman’ for the purposes of the Equality Act 2010?” GRC’s were created through the 2004 Gender Recognition Act, which allows transgender people to correct their legal gender.
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Essentially, FWS is asking the court to decide if the law should define a woman based on biology or based on how someone identifies. The decision will determine whether trans women are protected as women under the Equality Act – which provides legal protections based on sex, “gender reassignment” and sexual orientation, among other characteristics. It could also have a massive impact on trans inclusion in single-gender spaces – from sports to support groups to locker rooms.
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At question is what the Equality Act means when it refers to “sex” as a protected characteristic.
Aidan O’Neill KC, who represents FWS in the case, said a GRC is “legal fiction” when it comes to defining sex and that sex is an “immutable biological state,” BBC reported. He described the idea of the Equality Act defining trans women as women “nonsensical.”
The controversy began when Scottish Parliament passed the Gender Representation on Public School Boards Act in 2018 as a way to increase the number of women on public boards, and the legislation explicitly included trans women, BBC explained.
FWS challenged this, and after several appeals, the group won. The victory required Parliament to alter the wording of the bill, but it also released guidance to explain that the law included women based on definitions in both the Gender Recognition Act and the Equality Act.
Judge Lady Haldane ruled against FWS’s challenge of this guidance, declaring that sex is “not limited to biological or birth sex” and that those with a GRC should be considered the sex their certificate states. The Supreme Court is now hearing FWS’s challenge to Haldane’s decision.
For Women Scotland bills its mission as “working to protect and strengthen women and children’s rights.” It claims on its website that “Women’s rights are in crisis in Scotland” due to trans people gaining more rights.
“We believe that there are only two sexes,” the group states, “that a person’s sex is not a choice, nor can it be changed. Women are entitled to privacy, dignity, safety and fairness. Our legal rights should be protected and strengthened.”
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