It’s a very particular case heard by judges who have stressed that its outcome applies only in a limited context, but For Women Scotland vs The Scottish Ministers is nevertheless likely to get major media attention. Why? Because it has at its heart a definition of the word ‘woman’, something central to the international cultural conflicts of our age. The result of the case already has the appellant and its allies cheering what many have gleefully misinterpreted as an overarching definition of the term, while many trans people have responded with dismay. But what has actually happened? What was the case about? How did the judges reach their conclusion, and what will change as a result?
What is a woman?
If you have strong feelings about what a woman is, that’s fine – whatever they are, this judgement isn’t asking you to change them. The court has stressed that it is not its role “to adjudicate on the arguments in the public domain on the meaning of gender or sex.” Instead, its job was to try to figure out what politicians and the lawyers they worked with meant by the term when they drew up the Equality Act (2010).
Scotland is not allowed to amend the Equality Act because it’s not a devolved matter. For Women Scotland (a group described in the case as “a feminist voluntary organisation which campaigns to strengthen women’s rights and children’s rights in Scotland,” though over 90% of materials on its website concern trans people, suggesting a rather narrow approach to this) argued that it was misinterpreting the Act in saying that a trans woman with a Gender Recognition Certificate (GRC) should be seen as a woman for the purposes of promoting equal representation on public boards. After other legal bodies supported the Scottish Government’s position, the matter was referred to the Supreme Court.
The last census found that there were at least 19,990 trans people in Scotland (also including trans men and non-binary people). Of those, only around 1,000 have GRCs. Getting a GRC is a complicated and lengthy process in which the final decision is made by a panel of strangers who may never meet the applicant, and there is no right of appeal, so most trans people don’t bother. It can be useful to have, however, because it provides an additional degree of privacy – and thereby protection from discrimination – in day to day life.
The Gender Recognition Act establishes that trans people with GRCs should be recognised as the sex recorded on those certificates for all purposes except where that Act is effectively superseded by another, so the ruling does not affect the legal interpretation of their sex except where the Equality Act is concerned.
The Equality Act: a product of its time
Part of the difficulty with this area of law is that when the Equality Act was written, there was very little public awareness of trans people, and that ignorance extended to the people working on the bill. Although cases of trans men getting pregnant already existed, they dismissed these as anomalous and unlikely to become relevant. Although LGBT groups such as the Equality Network advised them of the existence of non-binary people, they felt that this was a tiny minority not worth worrying about. They were similarly quick to ignore concerns raised by intersex people, and they adopted a binary definition of sex. This would inevitably lead to difficulties as public attitudes and behaviours changed, and as gaps between the law and lived reality emerged.
In the judgement released today, the judges defined ‘biological sex’ as “the sex of a person at birth.” This is, in fact, far from a watertight definition, but, helpfully, they also referenced For Women Scotland’s rather clearer “biological sex as recorded on their birth certificate.” The judges, however, are experts in law, not in medicine or biology, and they did not take evidence from anyone in that category. They therefore make statements such as “as a matter of biology, only biological women can become pregnant,” which might seem reasonable to the average person but which overlook the fact that intersex people sometimes find themselves with inaccurate birth certificates. One thing it achieves is to establish in law something that intersex campaigners have pushed for – that people born with Y chromosomes can be considered women.
Throughout the judgement, there is an assumption that sex-based medical services are dependent on birth-assigned sex, which mirrors recent remarks by the UK Government’s Health Secretary, Wes Streeting. This is problematic for both trans and intersex people, who in many cases do not have bodies that fit the standard set of risks for either men or women. Hormones are a big player in most of the major health risks we face as we get older, so where the judges argue that a trans man’s occupational health risks are the same as those of a cis woman, they miss the mark. Obliging employers to interpret the Equality Act in a strictly binary way in this context could put people at risk.
The judgement does draw attention to the problematic way that the Equality Act uses language around pregnancy, and the problems this poses for trans men. If, as it points out, they are recognised as men in the context of the Act, they lose their rights to things like maternity leave. This highlights the fact that whichever way the judges ruled on the interpretation of the Act, there would be resultant problems both for trans people and for those seeking to restrict trans people’s rights.
Women’s spaces
Ask the average person what they think about trans rights and they will generally support a live and let live approach, but they may be nervous about protecting women’s spaces. Of course, anybody who enters a space and behaves in a threatening or harassing way is already breaking the law, and worldwide there have been very few cases of trans women, or men pretending to be trans women, taking advantage of trans inclusivity in order to do this – most men who want to do harm just walk straight in – but it’s understandable that, especially after a year in which over 1,000 articles claiming trans people are untrustworthy or dangerous appeared in popular newspapers, there would be some worries. The thing is, there is no simple solution to this.
“It makes no sense for conduct under the EA 2010 in relation to sex-based rights and protections to be regulated on a practical day-to-day basis by reference to categories that can only be ascertained by knowledge of who possesses a (confidential) certificate,” the judges said, explaining why they felt that GRCs should not carry any special weight in identifying a person’s sex in this context – but in doing so, they highlight another issue. Sex just isn’t as obvious from external appearance as they assume; lots of trans people actually blend in easily, and lots of cis people look ambiguous. In places where laws exist to restrict toilet access, for instance, it’s not just trans people who get arrested. Should everyone start carrying birth certificates with them?
The judges seem to have overlooked the way that this plays out at a social level, too. In relation to the Public Sector Equality Duty, they state that if trans people are considered to be the sex they say they are, then “ the group being considered would not be a group that, because of the shared protected characteristic of sex, has experienced discrimination or disadvantage flowing from shared biology, societal norms or prejudice” – as if trans women do not experience sexism (which, to be fair, they do acknowledge later as a real thing).
It’s unfortunate that at no point did the judges take evidence from trans people (the only participating organisation supporting trans rights was Amnesty International, which has human rights expertise but nothing particular to this area), as these issues could then have been quickly pointed out and accounted for.
Lesbians and trans inclusion
Particular attention is paid to concerns raised in a joint written submission from Scottish Lesbians (a recently formed group whose website only contains material concerning trans people), the Lesbian Project (formed in 2023 and again heavily focused on trans people, though its website does include some lesbian-specific work) and the LGB Alliance (which has always taken an explicitly trans-exclusionary position). These describe a perceived “chilling effect” on lesbian organising created by the obligation for groups with more than 25 members to acknowledge trans women as women because of the Equality Act. The judges take this as fact despite the fact that it is based on a single qualitative study and that other lesbians, and lesbian movements, and long-established groups fighting for lesbian rights, take a strongly trans-inclusive stance.
It’s probably due to the above that the judges conclude that “The concept of sexual orientation towards members of a particular sex in section 12 [‘Sexual orientation means a person’s sexual orientation towards— (a) persons of the same sex…’] is rendered meaningless.” This only makes sense if there is an a priori assumption that trans women can never be adequately female from the perspective of lesbian attraction, which is not borne out by reality. In extending it to suggest that this makes it problematic for trans women to participate in lesbian social spaces (where few would want to be anyway if actively made unwelcome, and from which anyone behaving inappropriately could be expelled), they also make the unfortunate implication that all lesbian socialising is inherently about sex.
The judgement: pros and cons
All of these factors serve to illustrate that this is a flawed judgement, and yet it is one that serves some useful purpose in highlighting areas of the Equality Act which should be clarified and made more inclusive when it comes under review (as the judges fairly point out, they cannot themselves make policy). The judges note that their ruling is not likely to impact discrimination cases prosecuted under the Equality Act because the act includes a clause addressing discrimination by association – so, for instance, a trans woman who doesn’t get hired due to sexism doesn’t need to demonstrate in court that she’s female, only that she is perceived by the employer as insufficiently masculine.
Where the ruling does make a difference is in enabling some clubs and societies to exclude trans people, and, most significantly, in restricting trans people’s access to sex-segregated public spaces (though there are fewer of these, in the eyes of the law, than you might think – they do not, for instance, include toilets). In practice we are likely to see test cases filed by opponents of equality to establish how this will work in practice, but we may also see an increase in spaces doing away with sex segregation altogether.
The majority of people will probably continue to wonder what all the fuss is about, but as court cases aimed at restricting trans people’s rights continue to be introduced, they might wish to reflect on the way that these have been used as a wedge issue in the US. Which group will be targeted next?
More in society.
