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For Women Scotland Ltd v The Scottish Ministers

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For Women Scotland Ltd v The Scottish Ministers
CourtSupreme Court of the United Kingdom
Argued26–27 November 2024
Decided16 April 2025
Neutral citation[2025] UKSC 16
Case history
Prior history[2023] CSIH 37[1]
Appealed fromInner House of the Court of Appeals
Court membership
Judges sittingReed, Hodge, Lloyd-Jones, Rose, Simler

For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 is a UK Supreme Court decision on the definition of "man" and "woman" in the Equality Act 2010.

The case was brought by For Women Scotland (FWS), a gender-critical advocacy group; in 2022, FWS requested a judicial review of statutory guidance issued by the Scottish government, which stated that transgender men and women who hold a full gender recognition certificate (GRC) were legally considered men and women under the Equality Act 2010. FWS argued that the Equality Act's definitions referred to "biological sex" and that the matter could not be legislated by Scotland because it was reserved to the UK Parliament. The court ruled in favour of the Scottish Ministers, and upheld their guidance.

After being declined an appeal, FWS took the case to the Supreme Court. The court found in a unanimous decision that, when referring to the Equality Act 2010, the terms "man", "woman", and "sex" were "always meant" to refer to "biological sex", and not gender or gender identity. However, the judges said they were not ruling more broadly on the definition of "sex" or whether trans women are women in other contexts, saying "it was not the role of the court to adjudicate on the meaning of gender or sex".[2][3]

Background

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In 2018, Scotland passed the Gender Representation on Public Boards Act, a law that requires public authorities with boards (i.e. a statutory board or board of directors) to encourage participation by women. To meet the "gender representation objective", public boards must aim to have 50% of their non-executive members be women, and include at least one woman among multiple candidates when filling a vacancy in the board.[4] The legislation as assented contained a definition of "woman" which was inclusive of trans women, by including any person who held the protected characteristic of gender reassignment as defined by the Equality Act 2010, and is "living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female."[4][5][6]

The gender-critical advocacy group For Women Scotland (FWS) filed a request for judicial review, arguing that the definition of "woman" under the Equality Act 2010 referred to "biological sex" and not gender. The Inner House ruled in favour of the Scottish Ministers, stating that trans women who have been issued a full gender recognition certificate (GRC) under the Gender Recognition Act 2004 were considered "women" under the Equality Act 2010.[4][7][6] In February 2022, following an appeal by FWS, the ruling was overturned by the Court of Session. Lady Dorrian ruled that the legislation "conflates and confuses two separate and distinct protected characteristics", being a trans woman was not explicitly considered a protected characteristic by the Equality Act, and that the Scottish government could not define protected characteristics because equal opportunities are a reserved matter to the UK Parliament.[8][6]

As a result of this ruling, the Act was amended on 19 April 2022 to remove the definition of "woman", with accompanying statutory guidance stating that "woman" was to be defined as per the Equality Act 2010. The guidance also stated that people in possession of a full GRC were to be recognized under the Equality Act by their acquired gender per the Gender Recognition Act 2004 (thus including trans women with a GRC, and excluding trans women without a GRC).[4][9][10]

In July 2022, FWS filed for a second judicial review, arguing that the statutory guidance fell outside of the devolved competence of the Scottish government.[9] In December 2022, Lady Haldane ruled in favour of the Scottish Ministers, stating that the updated statutory guidance was lawful, and that the definition of "sex" per the Equality Act 2010 was "not limited to biological or birth sex", and "includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex."[11]

In October 2023, FWS filed for another appeal, arguing that the ruling conflated sex and gender in a manner that was "unworkable and impractical". On 1 November 2023, the case was thrown out, but with the option for it to be taken to the Supreme Court;[12][13] Lady Dorrian wrote that "in our view it is clear that the intention was that on receipt of a Gender Recognition Certificate, a person's sex was to be that of their acquired gender, man or woman", and that "we do not accept the submissions of the reclaimer that this somehow turns the provisions on their head, or diminishes the protection available to individuals against discrimination on the grounds of sex."[14][10]

FWS stated that it was "hugely disappointed" in the decision, as the court had "ruled that women's protections under law may—in some cases—include men who have obtained a GRC."[14][10] An FWS director argued that the earlier ruling would allow public boards to consist of "50 per cent men, and 50 per cent men with certificates" while still complying with the gender representation objective. The group would bring the case to Supreme Court after a crowdfunding campaign; of the £300,000 raised, £70,000 was donated by author J. K. Rowling.[12][13]

Hearing

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During the hearing, the court received testimony from a number of gender-critical advocacy groups, including Sex Matters and the LGB Alliance, while not hearing testimony from any trans people. Prior to the hearing, the court denied a request from the Good Law Project to add testimony from a pair of trans legal experts. Amnesty International submitted testimony in support of the Scottish Government's position.[15][16]

Judgment

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On 16 April 2025, the Supreme Court delivered the judgment after the case was argued in November 2024. The court found a unanimous decision that the terms "man", "woman", and "sex" in the Act were "always intended" to refer to "biological sex" and not "certificated sex", and that any other interpretation would cause the Act to be incoherent and impracticable to operate.[17][6] It also found that the Scottish Government's guidance that "a trans woman with a gender recognition certificate is legally a woman" is invalid and incorrect.[18] The court found that under this definition, trans women could be excluded from female only spaces, including changing rooms and homeless shelters;[19] and that trans men could be excluded from female spaces in the same manner as trans women, "because the gender reassignment process has given them a masculine appearance".[20] However, while the ruling allows single sex facilities to exclude trans people, they are not required to do so.[21] Governing bodies are not compelled to change or reconsider their rules and may continue their inclusive policies if they want to.[22]

We are aware that this is a long judgment. It may assist therefore if we summarise our reasoning. […]

(v) Section 9(3) of the GRA 2004 (Gender Recognition Act 2004) disapplies the rule in section 9(1) of that Act where the words of legislation, enacted before or after the commencement of the GRA 2004, are on careful consideration interpreted in their context and having regard to their purpose to be inconsistent with that rule. It is not necessary that there are express words disapplying the rule in section 9(1) of the GRA 2004 or that such disapplication arises by necessary implication as the legality principle does not apply (paras 99–104).

(vi) The context in which the EA 2010 (Equality Act 2010) was enacted was therefore that the SDA 1975 (Sex Discrimination Act 1975) definitions of "man" and "woman" referred to biological sex and trans people had the protected characteristic of gender reassignment. […]

— paragraph 265 of the judgment

Lord Hodge also re-affirmed that the ruling does not affect the Equality Act 2010's protections from discrimination by the protected characteristic of gender reassignment, acknowledging that trans people were a vulnerable population that "struggle against discrimination and prejudice as they seek to live their lives with dignity". He warned that the judgment should not be seen as "a triumph of one or more groups in our society at the expense of another."[23][24][9] The judges also insisted that despite their decision, trans people can still bring sex discrimination cases "not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender".[25] The judgement also does not change or invalidate the Gender Recognition Act or the process for obtaining a Gender Recognition Certificate.[2][26][27]

Response

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Protest against the ruling at Marischal College in Aberdeen on 20 April 2025

The Scottish government stated that it had "acted in good faith in our interpretation of both the Gender Recognition Act 2004 and the Equality Act 2010" and "was guided by the published guidance of the [Equality and Human Rights Commission]", and it affirmed that the country would remain "fully committed to protecting everyone's rights, to ensure that Scotland remains an inclusive country".[24] Pro-LGBTQ groups have considered the ruling to be a potential setback for transgender rights in the UK; Stonewall CEO Simon Blake stated that the organisation "shares the deep concern at the wide implications of the ruling", and considered it "incredibly worrying" for the trans community and its supporters, but that it would "continue its work with the Government and parliamentarians to achieve equal rights under the law for LGBTQ+ people", and that "it's important to be reminded the Court strongly and clearly re-affirmed the Equality Act protects all trans people against discrimination, based on Gender Reassignment, and will continue to do so."[24] Amnesty International UK, said "it would take time to analyze the full implications. There are potentially concerning consequences for trans people, but it is important to stress that the court has been clear that trans people are protected under the Equality Act against discrimination and harassment."[2]

Gendered Intelligence and TransActual, two trans rights organizations, said that following the ruling, their support services had been "overwhelmed with calls" from trans people saying "How do I go on? I am in tears, I'm in pieces. I am shattered. I am broken" and "worried about whether they'd be able to return to their soccer team next week, receive medical care or get support for domestic violence."[28]

Following the ruling, Irish actress Nicola Coughlan raised over £70,000 for Not A Phase, a trans rights charity.[29]

Over the subsequent Easter weekend (18–20 April 2025), protests against the ruling were held in towns and cities throughout the UK.[30] Thousands gathered for a rally at London's Parliament Square on 19 April, organized by a group of 24 pro-LGBTQ groups.[31] Seven statues were vandalised during the London protests, including one of former prime minister Benjamin Disraeli, one of former prime minister Robert Peel, one of former South African prime minister Jan Smuts (which was spray painted with the words "trans rights are human rights"), one of women's suffrage campaigner Millicent Fawcett (whose banner was vandalised with the words "fag rights"), one of former prime minister Lord Palmerston, one of former South African president Nelson Mandela, and one of The Earl of Derby.[32][33]

A spokesperson for the UK government under the Labour Party stated that the ruling had brought "clarity and confidence" for women and service providers, adding that "single-sex spaces are protected in law and will always be protected by this government".[34][35] Kate Barker, chief executive of the charity LGB Alliance said: "The ruling confirms that the words 'gay' and 'lesbian' refer to same-sex sexual orientation and makes it absolutely clear that lesbians wishing to form associations of any size are lawfully entitled to exclude men – whether or not they possess a GRC".[36][24] Conservative Party leader Kemi Badenoch described the judgment as a "victory for all of the women who faced personal abuse or lost their jobs for stating the obvious", and declared that "the era of Keir Starmer telling us women can have penises has come to an end."[17][37]

Several government bodies announced changes to their policies in response to the ruling. Kishwer Falkner, chair of the Equality and Human Rights Commission (EHRC), stated on Today that the ruling will be incorporated into an upcoming code of practice for women-only spaces enforceable by law. Falkner warned that "single-sex services like changing rooms must be based on biological sex", trans women would be prohibited from competing in women's sport, and stated that the National Health Service would "have to change" its policy of treating transgender patients in accordance with their declared gender.[38][39][40] However, when asked if GRCs have now been rendered worthless, Falkner said: "We don't believe they are. We think they're quite important."[27] A spokesperson for the British Transport Police said that trans women in their custody would be strip searched by male officers.[41][42]

J. K. Rowling, who had donated £70,000 to For Women Scotland in support of the case, made a series of posts on Twitter celebrating the ruling, referring to it as "TERF VE Day", comparing it to the victory over Nazi Germany in 1945.[43]

Melanie Field, a former civil servant who oversaw the drafting and passage of the original Equality Act 2010, said that the act was drafted explicitly with the goal of including transgender women with GRCs in its definition of woman.[44][45] Harriet Harman said that the ruling of the Supreme Court gave effect to the intention of those who drafted it (which included herself).[36]

International

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Australia's sex discrimination commissioner, Anna Cody, condemned the ruling saying, "Human rights belong to everyone. Trans and gender diverse people should be safe, respected and legally recognised".[46]

Future

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After the ruling, the Good Law Project announced that they are exploring the possibility of appealing the case to the European Court of Human Rights.[27]

See also

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References

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  1. ^ For Women Scotland Limited v The The Scottish Ministers [2023] CSOH 2023_CSIH_37
  2. ^ a b c "U.K. Top Court Says Trans Women Are Not Legally Women Under Equality Act". New York Times. 16 April 2025. Retrieved 21 April 2025.
  3. ^ "The supreme court didn't rule on the definition of 'a woman' – this is what its judgment does mean". The Guardian. 16 April 2025. Retrieved 21 April 2025.
  4. ^ a b c d Kagoo, Isabel (12 March 2024). "Defining Woman - The Contentious Legal Battle Over the Definition of 'Woman' in Scotland". StAndrews Law Review. Retrieved 17 April 2025.
  5. ^ "Gender Representation on Public Boards (Scotland) Act 2018". legislation.gov.uk. 10 March 2018. Archived from the original on 26 August 2024. Retrieved 17 April 2025.
  6. ^ a b c d "For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent)". Supreme Court of the United Kingdom. 16 April 2025. Retrieved 18 April 2025.
  7. ^ "Row over definition of 'woman' in Scotland to be considered by Supreme Court". The National. 16 February 2024. Archived from the original on 16 February 2024. Retrieved 18 April 2025.
  8. ^ "Campaigners in court win over 'woman' definition". BBC News. 18 February 2022. Retrieved 17 April 2025.
  9. ^ a b c "For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) - UK Supreme Court". supremecourt.uk. Archived from the original on 16 April 2025. Retrieved 16 April 2025.
  10. ^ a b c "Campaigners lose definition of 'woman' appeal bid". BBC News. 1 November 2023. Retrieved 17 April 2025.
  11. ^ "Government wins legal case over definition of woman". BBC News. 13 December 2022. Archived from the original on 17 December 2024. Retrieved 17 April 2025.
  12. ^ a b "UK's highest court set to rule on definition of a woman". The Independent. 26 November 2024. Archived from the original on 28 November 2024. Retrieved 17 April 2025.
  13. ^ a b Brooks, Libby (16 April 2025). "How UK court definition of 'woman' could affect sex-based rights". The Guardian. ISSN 0261-3077. Retrieved 16 April 2025.
  14. ^ a b "Appeal over Court of Session ruling on definition of 'woman'". BBC News. 3 October 2023. Retrieved 17 April 2025.
  15. ^ Haq, Sana Noor (16 April 2025). "UK Supreme Court says legal definition of 'woman' excludes trans women, in landmark ruling". CNN. Archived from the original on 16 April 2025. Retrieved 17 April 2025.
  16. ^ Riedel, Samantha (16 April 2025). "U.K. Supreme Court Rules That Trans Men Are Not Men and Trans Women Are Not Women". Them. Retrieved 17 April 2025.
  17. ^ a b "Supreme Court backs 'biological' definition of woman". BBC News. 15 April 2025. Archived from the original on 16 April 2025. Retrieved 16 April 2025.
  18. ^ Scott, Geraldine; Manning, Sanchez; Sanderson, Daniel (16 April 2025). "Organisations 'must revisit policies' after Supreme Court trans ruling". www.thetimes.com. Retrieved 16 April 2025.
  19. ^ "Supreme Court ruling just the latest curb on trans rights worldwide". The Independent. 17 April 2025. Retrieved 18 April 2025.
  20. ^ Bland, Archie (17 April 2025). "What a landmark supreme court ruling on biological sex does – and doesn't – mean". The Guardian. ISSN 0261-3077. Retrieved 18 April 2025.
  21. ^ "The Supreme Court ruling gives clarity - but now comes the difficult part". BBC. Retrieved 21 April 2025.
  22. ^ "Gender ruling offers clarity after years of ambiguity". BBC. Retrieved 21 April 2025.
  23. ^ "What does Supreme Court definition of a woman ruling mean?". BBC News. 16 April 2025. Retrieved 16 April 2025.
  24. ^ a b c d Perry, Sophie (16 April 2025). "'We'll get through this together': Reactions to Supreme Court's trans ruling". PinkNews. Retrieved 16 April 2025.
  25. ^ "Four key takeaways from the Supreme Court's 'definition of a woman' ruling". Pink News. Retrieved 20 April 2025.
  26. ^ "What does the transgender rights ruling mean?". The Telegraph. Retrieved 21 April 2025.
  27. ^ a b c "What Supreme Court's gender ruling means for workplaces, hospitals and sports". Yahoo News. 17 April 2025. Retrieved 21 April 2025.
  28. ^ "Transgender women in Britain fear ruling could place toilets, sports and hospitals off limits". Washington Post. 17 April 2025. Retrieved 21 April 2025.
  29. ^ "Nicola Coughlan Raised Over £70,000 for Trans Rights Following U.K. Court Ruling". them.us. 18 April 2025. Retrieved 21 April 2025.
  30. ^ Billson, Chantelle (18 April 2025). "Protests against trans Supreme Court ruling to be held across UK this weekend". PinkNews. Retrieved 20 April 2025.
  31. ^ Tapper, James (19 April 2025). "'One hell of a turnout': trans activists rally in London against gender ruling". The Observer. Retrieved 20 April 2025.
  32. ^ Grew, Tony (20 April 2025). "Damage to statues investigated after trans protest". BBC News. Archived from the original on 20 April 2025. Retrieved 20 April 2025.
  33. ^ Tom McArdle; Dominic Penna; Daniel Martin; Ruth Hallows (20 April 2025). "Nelson Mandela statue among seven vandalised during trans protest". Daily Telegraph. Retrieved 20 April 2025.
  34. ^ "Campaigners warn of Supreme Court ruling impact on trans people". BBC News. 17 April 2025. Archived from the original on 17 April 2025. Retrieved 17 April 2025.
  35. ^ "Westminster's tortuous battle with the gender question". www.bbc.com. 16 April 2025. Retrieved 18 April 2025.
  36. ^ a b "UK Supreme Court rules legal definition of a woman is based on biological sex". bbc.co.uk. BBC. 16 April 2025. Retrieved 20 April 2025.
  37. ^ "Labour Minister Says Tories Should Apologise For Past Pro-Trans Women Stance". Yahoo News. 17 April 2025. Retrieved 17 April 2025.
  38. ^ Carrell, Severin; Davies, Caroline (17 April 2025). "Trans activists accuse UK equalities chief of 'overreach' for suggesting bans". The Guardian. ISSN 0261-3077. Retrieved 20 April 2025.
  39. ^ "Public bodies face 'enforcement' of biological sex policies, watchdog warns". The National. 17 April 2025. Retrieved 18 April 2025.
  40. ^ Billson, Chantelle (17 April 2025). "NHS warned it will be 'pursued' if it doesn't change gender policies". PinkNews. Retrieved 18 April 2025.
  41. ^ "Trans women to be strip searched by male transport police after court ruling". Sky News. Retrieved 18 April 2025.
  42. ^ Staff, Al Jazeera. "Trans women aren't legally women: What the UK Supreme Court ruling means". Al Jazeera. Retrieved 18 April 2025.
  43. ^ "'Harry Potter' author JK Rowling faces backlash to anti-trans comments". USA Today. 18 April 2025. Retrieved 18 April 2025.
  44. ^ Carrell, Severin; Brooks, Libby (18 April 2025). "Court ruling on 'woman' at odds with UK Equality Act aim, says ex-civil servant". The Guardian. ISSN 0261-3077. Retrieved 19 April 2025.
  45. ^ "Supreme Court ruling on definition of a woman 'at odds' with goals of UK Equality Act, ex-civil servant tells LBC". LBC. Retrieved 19 April 2025.
  46. ^ "'Not the laws of Australia': Sex discrimination chief reacts to UK ruling on definition of a woman". SBS News. 17 April 2025. Retrieved 21 April 2025.
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