Supreme Court in U.K. rules definition of a woman is based on biological sex

The U.K. Supreme Court ruled Wednesday that a woman is someone born biologically female, excluding transgender people from the legal definition in a long-running dispute between a feminist group and the Scottish government.

Several women’s groups that supported the appeal celebrated outside court and hailed it as a major victory in their effort to protect spaces designated for women.

“Everyone knows what sex is and you can’t change it,” said Susan Smith, codirector of For Women Scotland, which brought the case. “It’s common sense, basic common sense and the fact that we have been down a rabbit hole where people have tried to deny science and to deny reality and hopefully this will now see us back to, back to reality.”

The ruling brings some clarity in the U.K. to a controversial issue that has roiled politics as women, parents, LGBTQ+ groups, lawmakers, and athletes have debated gender identity rights.

Five judges ruled unanimously that the U.K. Equality Act means trans women can be excluded from some single-sex spaces and groups, such as changing rooms, homeless shelters, swimming areas, and medical or counseling services provided only to women.

The ruling means that a transgender person with a certificate that recognizes them as female should not be considered a woman for equality purposes.

But Justice Patrick Hodge said its ruling “does not remove protection from trans people,” who are “protected from discrimination on the ground of gender reassignment.”

Trans rights advocates condemn the judgment

The case stems from a 2018 law passed by the Scottish Parliament stating there should be a 50% female representation on the boards of Scottish public bodies. Transgender women with gender recognition certificates were to be included in meeting the quota.

“Interpreting ‘sex’ as certificated sex would cut across the definitions of ‘man’ and ‘woman’ . . . and, thus, the protected characteristic of sex in an incoherent way,” Hodge said. “It would create heterogeneous groupings.”

Hannah Ford, an employment lawyer, said that while the judgment will provide clarity, it would be a setback for transgender rights and there would be “an uphill battle” to ensure workplaces are welcoming places for trans people.

“This will be really wounding for the trans community,” Ford told Sky News.

Groups that had challenged the Scottish government popped the cork on a bottle of champagne outside the court and sang, “women’s rights are human rights.”

“The court has given us the right answer: the protected characteristic of sex—male and female—refers to reality, not to paperwork,” said Maya Forstater of the group Sex Matters. In 2022, an employment tribunal ruled that she had been the victim of discrimination when she lost out on a job after posting gender-critical views online.

The British government welcomed the ruling, saying it would provide clarity and confidence for women.

“Single-sex spaces are protected in law and will always be protected by this government,” it said.

Harry Potter author backed legal challenge

For Women Scotland had argued that the Scottish officials’ redefinition of woman went beyond Parliament’s powers. But Scottish officials then issued new guidance stating that the definition of woman included someone with a gender recognition certificate.

FWS successfully sought to overturn that.

“Not tying the definition of sex to its ordinary meaning means that public boards could conceivably comprise of 50% men, and 50% men with certificates, yet still lawfully meet the targets for female representation,” the group’s director Trina Budge said previously.

The challenge was rejected by a court in 2022, but the group was granted permission last year to take its case to the Supreme Court.

Aidan O’Neill, a lawyer for FWS, told the Supreme Court judges—three men and two women—that under the Equality Act “sex” should refer to biological sex and as understood “in ordinary, everyday language.”

“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,” he said. “It is an expression of one’s bodily reality. It is an immutable biological state.”

The women’s right group counted among its supporters author J.K. Rowling, who reportedly donated tens of thousands of pounds to back its work. The Harry Potter writer has been vocal in arguing that the rights for trans women should not come at the expense of those who are born biologically female.

Opponents, including Amnesty International, said excluding transgender people from sex discrimination protections conflicted with human rights laws.

Amnesty submitted a brief in court saying it was concerned about the deterioration of the rights for trans people in the U.K. and abroad.

“A blanket policy of barring trans women from single-sex services is not a proportionate means to achieve a legitimate aim,” the human rights group said.

—Brian Melley, Jill Lawless and Sylvia Hui, Associated Press

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