United Kingdom: Legal Definition of a Woman is Based on Biological Sex

The case began in 2018: the Scottish Parliament passed a bill to ensure gender balance on public sector boards. The bill provides protection against discrimination, including discrimination based on "sex" and "gender reassignment."

The Scottish Government maintains that transgender women, whether or not they hold a Gender Recognition Certificate (GRC), are entitled to the protections afforded by the Women's Equality Act, while For Women Scotland argues that these protections only apply to people born female.

The five judges therefore had to decide whether the implications of this law extend to transgender women who hold a GRC and what the law means by "sex": whether it refers to biological sex or legal, "certified" sex, as defined by the Gender Recognition Act 2004.

For the Scottish Government, the 2004 legislation clearly stated that obtaining a GRC amounts to a change of sex "for all practical purposes." Aidan O'Neill KC, representing For Women Scotland, argued for a "common sense" meaning of the words male and female, telling the court that sex is an "immutable biological state."

"The unanimous decision of this court is that the terms 'woman' and 'sex' in the Equality Act 2010 refer to a biological woman and a biological sex," Lord Patrick Hodge, Deputy President of the Supreme Court, said on Wednesday, April 16, in delivering the verdict.

Significant Implications

For Women Scotland is a non-profit organization founded in June 2018 "in a context of growing unease" about how women's rights are affected by "the Scottish Government's plans," according to its website. Members of the organization were outraged at the inclusion of transgender people in the equality law's quotas.

The organization's funding system is crowdfunded, and it raised no less than £230,000, including £70,000 from J.K. Rowling, creator of the Harry Potter series. It is thanks to this funding that several legal appeals have been filed, first before the Scottish courts, and then finally before the Supreme Court in London for a final decision.

This verdict could have significant implications for how sex-based rights are applied in Scotland, England, and Wales. It could affect single-sex spaces and services such as hospitals, prisons, shelters, and support groups, as well as demands for equal pay or equal opportunities at sporting events.

It is nonetheless encouraging to see woke and transgender ideologies receding, even if it appears limited for the moment. But it is a first step that could little by little restore some order, especially if transgender access to single-sex spaces and services are prohibited, and if transgender people are excluded from women's sporting events, as has been decided by the World Athletics Council for the events for which it is responsible.