Supreme Court rules trans women are not legally women under Equality Act in far-reaching judgement

The ruling is likely to have far-reaching consequences as it effectively means trans men and women will be recognised as the gender they were born with under certain laws. However, transgender people will still have protection from discrimination as it is a protected characteristic.

Lord Hodge, sitting with Lords Reed and Lloyd-Jones alongside Ladies Rose and Simler, said the “central question” is how the words “woman” and “sex” are defined in the 2010 Equality Act.

He continued: “The terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.”

In an 88-page judgment, Lord Hodge, Lady Rose and Lady Simler said that while the word “biological” does not appear in the definition of man or woman in the Equality Act, “the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman”.

The justices added that interpreting biological sex with GRCs would “cut across the definition of the protected characteristic of sex in an incoherent way”.

They continued: “We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of, biological, women and girls, or men and boys, with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.”

FWS had brought a series of challenges – including to the UK’s highest court – over the definition of “woman” in Scottish legislation mandating 50 per cent female representation on public boards.

The dispute centred on whether someone with a GRC recognising their gender as female should be treated as a woman under the UK 2010 Equality Act.

FWS had previously said not tying the definition of sex to its “ordinary meaning” could have far-reaching consequences for sex-based rights, as well as “everyday single-sex services” like toilets and hospital wards.

However, lawyers for the Scottish Government told the Supreme Court at a hearing in November that a person with a GRC is “recognised in law” as having changed sex.

During the hearing in November, Aidan O’Neill KC, for FWS, told justices the Scottish ministers’ position that sex, man and woman in the Equality Act refer to “certificated sex” – as the sex on a person’s birth certificate whether or not amended by a gender recognition certificate (GRC) – is “just wrong and should be rejected by the court”.

But Ruth Crawford KC, for the Scottish Government, said a person who becomes a woman “in consequence of a GRC” is entitled to those protections “just as much as others enjoy those protections who are recorded as a woman at birth”.

She also said the “inevitable conclusion” of the FWS challenge, if successful, is that trans women with GRCs would “remain men until death for the purposes of the Equality Act”.

The court was also told that since the Gender Recognition Act was passed in 2004, 8,464 people in the UK had obtained a GRC which requires a diagnosis of gender dysphoria, living in the acquired gender for at least two years and an intention to live in that gender for the rest of the applicant’s life.

Mims Davies, the Conservative Shadow Minister for Women, said the Government needed to clarify existing guidance to reflect the Supreme Court’s ruling on the definition of “woman”.

In a post on X, Ms Davies said: “Huge well done to FWS. We Conservatives have been warning the Government for months about the preparation they would need to do ahead of this judgement – it’s now time for them to clarify all existing guidance to make sure that public bodies are clear that sex means biological sex.”

She added: “This morning’s decision is important for women right across our country. This is a clear victory for common sense – and should never have taken a court case to prove the biological definition of a woman.”

A Government spokesman said: “We have always supported the protection of single-sex spaces based on biological sex.

“This ruling brings clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs.

“Single-sex spaces are protected in law and will always be protected by this Government.”