Judges to rule on definition of ‘woman’ next week

The Supreme Court judgment on the legal definition of ‘woman’ is expected next week.

The landmark verdict will be delivered on Wednesday morning shortly before 10am.

The case was brought by campaign group For Women Scotland, relating to whether the acquisition of a gender recognition certificate (GRC) means a trans woman is classified as a woman under the provisions of the Equality Act.

The Scottish Government’s legal team argued holders of a GRC were “entitled to the protections” of their preferred sex under the Act.

But For Women Scotland’s argument was that ‘woman’ should be considered an “immutable biological state” by law, and therefore would not take into account a GRC.

Supreme Court judges heard the legal arguments over two days last November.

The verdict will have far-reaching implications, including on the operation of the Equality Act and the Scottish Government’s stalled Gender Recognition Reform Bill.

Protected characteristics under the Equality Act cover both gender reassignment and sex.

It allows for the provision of single-sex services, including the exclusion of trans people from those services where it is deemed a proportionate means of achieving a legitimate aim.

But questions have been raised about the status of a person who has obtained a GRC, which allows trans people to change the sex registered on official documents.

A case was initially raised by For Women Scotland in relation to the Gender Representation on Public Boards Act, passed by the Scottish Parliament in 2018, which aims to increase the number of women in public boards.

That originally defined ‘woman’ as a person with the protected characteristic of gender reassignment, living as a woman, and proposing to undergo, undergoing, or who have undergone a gender reassignment process.

A challenge brought by the campaign group resulted in the Court of Session ruling it unlawful as it fell outwith the competence of the Scottish Parliament, in that it altered definition set out in the UK-wide Equality Act.

The Scottish Government has since amended the legislation to remove the section on the definition of a woman. However, the government has maintained its position that the definition of ‘woman’ is inclusive of trans women with a GRC under UK law.