The United Kingdom Supreme Court commenced hearings on a legal challenge surrounding the definition of “woman,” grounded in a longstanding dispute between the women’s rights campaign group, For Women Scotland Limited, and the Scottish government. This challenge follows a November decision where For Women Scotland Limited lost its Inner House appeal regarding the legality of the statutory guidance issued by Scottish Ministers.
The focal point of the appeal is the definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 (ASP 2018), which includes individuals “with the protected characteristic of gender reassignment,” those living as a woman, and those who are undergoing or have undergone gender reassignment. This contested definition was initially challenged in 2022, but the Court of Session found it exceeded the legislative authority, conflating distinct protected characteristics outlined in the Equality Act 2010 (EA 2010).
Despite this ruling, the Scottish government maintained the ASP 2018 definition, clarifying that individuals with a Gender Recognition Certificate (GRC) are legally recognized as women under Section 9 of the Gender Recognition Act 2004 (GRA 2004). In a subsequent legal challenge, For Women Scotland Limited argued that Section 11 of the EA 2010 should take precedence over the GRA 2004, as it defines gender based on “particular protected characteristics.” This argument was dismissed by the courts, which found no conflict between the EA 2010 and the GRA 2004, asserting that they are compatible.
The Supreme Court is now tasked with determining whether the EA 2010 restricts or limits the legal effect of the GRA 2004. Aidan O’Neill KC, representing For Women Scotland Limited, advocated for a “common sense” definition of “man” and “woman,” emphasizing the immutability of biological sex as a legal protection under equality law. Meanwhile, Ruth Crawford KC, representing the Scottish government, contended for the legislation’s compatibility, claiming the absence of any explicit limitations of the GRA 2004 by the EA 2010.
The Supreme Court’s eventual decision will clarify legal boundaries affecting both women and transgender individuals. The hearing concludes on Wednesday, November 27. For further developments, refer to the JURIST report.