The UK Supreme Court has ruled that the definitions of ‘sex’ and ‘woman’ in equalities law refer to ‘biological sex’.
In a ‘unanimous decision’, Lord Hodge said: ‘The terms, “woman”, and “sex”, in the Equality Act 2010 refer to a biological woman and biological sex.
‘But we counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another, it is not.’
Five judges were tasked with deciding whether the legal understanding includes trans women with gender recognition certificates (GRC).
The Scottish government said this definition includes trans women with a GRC, a paper that shows a person’s affirmed gender is legally recognised.
While For Women Scotland (FWS), which campaigns against trans rights, said this should only be for ‘biological women’.
What did the judges rule on?
The ruling related to two different aspects of how people think of gender.
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Sex – something assigned at birth based on external anatomy – and gender identity, the internal, deeply held sense of one’s gender.
Both are covered by the Equality Act 2010, the bedrock of equalities law that covers Britain. The act protects characteristics including sex, gender and gender reassignment against discrimination.
Trans people are protected from discrimination regardless of whether they have a GRC.
The act defines a woman as a ‘female of any age’. But the judges are deciding exactly what the act means by ‘sex’ as a protected characteristic.
What is a gender recognition certificate (GRC)?
With a GRC, a trans adult can update their birth certificate, marriage certificate and HMRC records to reflect their identity as well as their death certificate.
The paperwork is not needed for trans people to change their legal names or update the sex marker on IDs like passports or driving licences.
In 2018, only about 1% of trans people had a GRC, according to official figures. There are 262,000 openly trans people in England and Wales – or 0.5% of the population.
The gender recognition system requires trans people to receive a diagnosis of gender dysphoria, which can take years due to the years-long waiting times at NHS gender clinics.
Non-binary people cannot be legally recognised in the UK.
FWS took legal action after the Scottish Parliament passed a bill to ensure gender balance on public sector boards in 2018.
The case is a response to a 2022 ruling that said sex is ‘not limited’ to biological sex and the ability of a GRC to change a person’s legal sex ‘does not offend against, or give rise to any conflict with, legislation where it is clear that ‘sex’ means biological sex’.
FWS say that trans women should not be allowed to access most single-sex spaces and services that match their identity – think public toilets, changing rooms or domestic abuse refuges.
Trans women can legally use these services without a GRC. They can only be excluded from single-sex spaces to achieve a ‘legitimate aim’.
Barrister Aidan O’Neill, who is representing the group, says that calling a trans woman with a GRC a woman is a ‘legal fiction’.
Sex, he added, is an ‘immutable biological state’.
Trans rights campaigners and people say otherwise. ‘No matter the outcome today at the Supreme Court, trans and non-binary people will never be erased,’ Sophie Molly, a Scottish trans rights campaigner, told Metro before the ruling.
‘We have been around forever. We are strong and proud. We are invincible!’
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