Supreme Court: Judges retire to consider meaning of 'woman'

Judges have retired to consider their verdict in a landmark case about the legal definition of “woman”.

The UK’s highest court has heard two days of dense legal arguments over what ‘woman’ means in law.

The Supreme Court case was brought by the For Women Scotland (FWS) campaign group over its concerns about the impact of reforms for transgender people on women’s rights.

The Scottish Government’s legal team argued that the acquisition of a Gender Recognition Certificate (GRC), which allows trans people to change the sex registered on official documents, means holders are “entitled to the protections” of their preferred sex under the UK-wide Equality Act.

Ruth Crawford KC, acting for Scottish ministers, said that means trans men who become pregnant could lose maternity protections, and that groups of lesbians could not exclude trans women on the basis of their biology. She said: “The Gender Recognition Act effects a change in sex and gender interchangeably and this effects a change in legal status.”

But Aidan O’Neill KC, acting for FWS, said the Scottish Government’s argument could result in the overturning of rules allowing rape victims to choose the sex of the forensic examiners treating them.

Branding some of the Scottish Government’s arguments “absurd” and “unsupported”, he said they could also mean that trans men who are pregnant are not required to follow the letter of abortion laws, because these were drafted to apply to women only.

Crawford, who compared the acquisition of a GRC to legal adoption, denied the rules could have a “chilling effect” on lesbian or other associations and said that the issuing of around 420 GRCs a year should “allay any concerns about the impacts” on public sector equality duties.

However, O’Neill said ‘woman’ should constitute an “immutable biological state” and suggested the rights of women have been “ignored” in moves to further trans inclusion. Referring to trans women, he said: “Does it just come down to people’s feelings? Why is it that the feelings of these natal men with GRCs trumps the rights of women as women?”

The London case continues a five-year legal row between FWS and Scottish ministers. Harry Potter author JK Rowling is amongst those backing the FWS challenge.

FWS raised a legal action over the definition of ‘woman’ in relation to Scots laws requiring that half of those sitting on public boards must be women. In 2023, Scottish courts found that it was lawful to treat a trans woman holding a GRC as a woman under the Equality Act. Rules around board membership were changed to include only trans women with GRCs.

Today the Supreme Court heard that the outcome of the case would not mean any such board members would lose their places.

Scottish Government KCs said ‘sex’ and ‘gender’ had been used “interchangeably” in some legislation, and that those creating the Equality Act had been thinking of the separate Gender Recognition Act in their use of language. Ministers have taken the position that ‘man’, ‘woman’ and sex in that legislation refer to “certified sex” as seen on a birth certificate, regardless of whether or not that has been altered by a GRC.

O’Neill disputed this, saying that “sex just means sex, as that word and the words ‘woman’ and ‘man’ are understood and used in ordinary, everyday language” in the terms of the Equality Act.

He said: “Our position is your sex, whether you are a man or a woman or a girl or a boy, is determined from conception in utero, even before one's birth, by one's body.

“It is an expression of one's bodily reality.”

The panel of five judges – Lords Reed, Hodge and Lloyd-Jones and Ladies Rose and Simler – several times sought clarity over the arguments being advanced due to complexities of the law and language.

In response to one question, Crawford said she was “a bit lost”.

Earlier, she said the consequence of a GRC was “no more a legal fiction than is adoption”, with an adopted person considered in law as the child of their adoptive parents “and no one else”.

Crawford said the “inevitable conclusion” of a win for FWS would be that trans women with GRCs would “remain men until death for the purposes of the Equality Act”.

The appeal continues.

The case comes almost two years since MSPs from across the Scottish Parliament voted in favour of the Gender Recognition Reform Bill, which was ultimately vetoed by the UK Government on the grounds that it impacted upon the Equality Act.

As the court was sitting, First Minister John Swinney was asked if he believes men can become pregnant. Swinney replied: “No, I don’t.”

When asked why his government’s lawyers were advancing that argument, Swinney said: “There’s many complex arguments being put forward in the Supreme Court, and I don’t think they come down to the simplicity of the question you’ve put to me.”