Judges rule that ‘sex’ refers to ‘biological women’ – but trans people are protected

The UK Supreme Court has ruled that the definitions of ‘sex’ and ‘woman’ in equalities law refer to ‘biological sex’.

In a ‘unanimous decision’, Lord Hodge said: ‘The terms “woman” and “sex”, in the Equality Act 2010, refer to a biological woman and biological sex.

‘But we counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another, it is not.’

Five judges were tasked with deciding whether the legal understanding of ‘woman’ includes trans women with gender recognition certificates (GRC).

The Scottish government said this definition includes trans women with a GRC, a document that shows a person’s affirmed gender is legally recognised.

While For Women Scotland (FWS), which campaigns against trans rights, said this should only be for ‘biological women’.

What did the judges rule on?

The ruling related to two different aspects of how people think of gender.

Sex – something assigned at birth based on external anatomy – and gender identity, the internal, deeply held sense of one’s gender.

If someone’s sex assigned at birth aligns with their gender identity, that person is cisgender or ‘cis’.

Both are covered by the Equality Act 2010, the bedrock of equalities law that covers Britain. The act protects characteristics including sex, gender and gender reassignment against discrimination.

Trans people are protected from discrimination regardless of whether they have a GRC. By ‘gender reassignment’, the act means someone who has proposed to undergo, is undergoing or has undergone trans healthcare.

The act defines a woman as a ‘female of any age’. But the judges are deciding exactly what the act means by ‘sex’ as a protected characteristic.

‘The Equality Act 2010 gives transgender people protection, 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,’ Lord Hodge said.

Non-binary people are not legally recognised in the UK.

FWS took legal action after the Scottish Parliament passed a bill to ensure gender balance on public sector boards in 2018.

The case is a response to a 2022 ruling that said sex is ‘not limited’ to biological sex and the ability of a GRC to change a person’s legal sex ‘does not offend against, or give rise to any conflict with, legislation where it is clear that ‘sex’ means biological sex’.

FWS say that trans women should not be allowed to access most single-sex spaces and services that match their identity – think public toilets, changing rooms or domestic abuse refuges.

Trans women can legally use these services without a GRC. They can only be excluded from single-sex spaces to achieve a ‘legitimate aim’.

The ruling brings ‘clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs’, a Government spokesperson said.

First Minister John Swinney said the Scottish Government ‘accepts today’s Supreme Court judgment’.

Lord Hodge said that including people with a GRC under the ‘sex’ protected characteristic makes the Equalities Act read in an ‘incoherent way’.

‘Gender reassignment and sex are separate bases for discrimination and inequality,’ the ruling says, adding that a trans woman could claim sex discrimination ‘because she is perceived as a woman’.

The keyword here is ‘separate’ said Sophie Molly, a Scottish trans rights campaigner.

‘Trans rights are being stripped away under the pretence of defending women’s rights. Trans women are women. There should be no separate law for cis and trans women,’ she told Metro.

‘To have such a thing take effect is extreme discrimination… We will overcome. We will never give in.’

The Good Law Project, a governance watchdog, agreed. ‘The Supreme Court sided with FWS. But it didn’t hear from a single trans person,’ the firm wrote on Bluesky.

‘This ruling sets a dangerous precedent and erases trans women from protections. It puts trans rights back 20 years.’

Scottish Greens MSP Maggie Chapman added: ‘This is a deeply concerning ruling for human rights and a huge blow to some of the most marginalised people in our society.

‘It could remove important protections and will leave many trans people and their loved ones deeply anxious and worried about how their lives will be affected and about what will come next.’

In response to the ruling, FWS said on X:’ Yaaaaaaaaaaaaaaaaaaaaaaaaaaaaas #WeKnowWhatAWomanIs.’

But Sophie knows how she will live her life for the time being.

‘I will continue to use female spaces,’ she added, ‘I am a woman and it is my right!’

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