The supreme court didn’t rule on the definition of ‘a woman’ – this is what its judgment does mean

https://www.theguardian.com/commentisfree/2025/apr/16/supreme-court-definition-woman-judges-law

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The judges had to interpret the law as set down by parliament. But it must be remembered this is not an abstract debate; it concerns real people

The supreme court, headlines say, has ruled on “the definition of a woman”. Except it hasn’t. As the court says, in paragraph 2 of its judgment: “It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word ‘woman’ other than when it is used in the provisions of the [Equality Act] 2010.”

So what is the court’s decision actually about? In 2018, the Scottish parliament passed a law encouraging public boards to have 50% representation for women. For Women Scotland, a group that describes itself as “working to protect women’s rights”, asked the court to strike the law down because it included transgender women. There followed a series of legal challenges which eventually made their way to the supreme court.

The essence of the court’s decision is (in broad strokes) as follows: a) the Gender Recognition Act 2004 states that a person with a GRC [gender recognition certificate] is to be treated as the sex stated in the GRC “for all purposes” unless a statute provides otherwise; b) although the Equality Act 2010 doesn’t explicitly state otherwise, it contains various references to the word “woman” in contexts where it makes more sense if it is read as “biological woman”; c) the Equality Act therefore rebuts the presumption in the GRA and, for its purposes, “woman” means “biological” (“cis”) woman and, accordingly, the 2018 act must be read as excluding trans women from the class of “woman”.

For Women Scotland raised nearly £250,000 to fund its case. Yet the decision leaves the legal rights of cis women untouched. What it does do, however, is make the legal equalities landscape significantly more complex. Previously, the Equality Act was interpreted quite simply: people who were born women or had a GRC were women for the purposes of the act. Another section of the act provided protections for those undergoing “gender reassignment” (whether or not they had a GRC).

The court’s decision means there are now multiple legal classes of “woman” and “man”, each of which invites a different interpretation of the act: cis women, trans women with a GRC, trans women without a GRC, cis men, trans men with a GRC, trans men without a GRC. The court acknowledged that, should a trans woman be discriminated against because someone thinks she is a cis woman, then she will still be entitled to make a claim for sex discrimination in the same way as a cis woman.

And what of the practical impacts of the decision? As of 2020, there were reportedly no trans women serving on public boards. Trans people make up around 0.44% of the over-16 population in Scotland. The chances of a cis woman losing a public board position to an equally qualified trans woman are vanishingly small. The 2018 act will still permit the appointment of a trans woman ahead of an equally qualified biological woman if the appointment can be justified on the basis of their “particular characteristics or situation”.

In terms of the broader effects of the decision, there is some suggestion that this might affect women-only groups that wish to exclude trans women. It won’t. The law permitted such exclusions already. (Although it may be that some groups would feel more confident in using them after this decision.)

The court was clear that trans people (regardless of whether they have a GRC) remain entitled to protection under the Equality Act (generally the same as conferred on biological women). Some sections of the act, which refer explicitly to “women”, will now be confined to cis women. The vast majority of these, however, are either unlikely to affect trans people or else the protections are replicated elsewhere in the act. Section 17 of the act, for example, explicitly refers to “treating a woman unfavourably because she is breastfeeding” as an example of discrimination against women on the basis of sex. The court’s decision suggests that a trans woman is not protected by section 17. Such discrimination is still, however, probably prohibited by sections 7 and 13 (which prohibit discrimination against trans people).

No trans people were represented during the case – and retired judge Victoria McCloud was refused permission to join the litigation. Yet despite the limited reach of the decision itself, it will no doubt have other effects. The court asked politicians and activists not to weaponise its decision for political gain. Moments after it was published, however, some politicians and activists did exactly that.

It must be remembered that this is not an abstract debate – it involves real people. Trans people, for example, are now twice as likely as cis people to be the victim of violent crime; 62%-73% report being harassed.

That isn’t the supreme court’s fault. All the court can do is interpret the law set down by parliament. The judges’ analysis is forensic, balanced and rational. Their decision shows, however, that parliament urgently needs to look again at the Equality Act. If politicians focused more on legislating, and less on making cheap political capital, this case may never have been necessary.

Sam Fowles is a barrister, author and broadcaster

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Sam Fowles is a barrister, author and broadcaster