Judges at the UK Supreme Court are being asked to rule what legally constitutes a woman following an appeal from a Scottish group of activists. For Women Scotland (FWS) is challenging the definition of females enshrined in the Gender Representation on Public Boards Act, which was passed at the Scottish Parliament in 2018 with the aim of getting more women into executive roles.
The legislation defined a woman as including people “living as a woman” and were currently or proposing to undergo the gender reassignment process. FWS launched a legal challenge at the Court of Session where judges ruled in 2022 the definition could only cover biological women.
The Scottish Government subsequently changed the bill to remove the definition – but SNP ministers then issued new guidance, stating it would include women as defined by the Equality Act, and also the Gender Recognition Act (GRA). FWS challenged this guidance in a fresh judicial review which ended in defeat.
Judge Lady Haldane ruled in December 2022 that the definition of sex was “not limited to biological or birth sex”, but included those in possession of a gender recognition certificate. FWS is now challenging that ruling in the Supreme Court.
Aidan O’Neill KC, representing FWS, told the court today: “Our submission is that the court should find in favour of (For Women Scotland)… that in the Equality Act sex just means sex, as that word and the words woman and man are understood and used in ordinary, everyday language, used every day in everyday situations by ordinary people.”
He said 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”.
O’Neill called for the court to take account of “the facts of biological reality rather than the fantasies of legal fiction”, and to uphold the appeal.
He added: “Our position is your sex, whether you are a man or a woman or a girl or a boy, is determined from conception in utero, even before one’s birth, by one’s body. It is an expression of one’s bodily reality. It is an immutable biological state.”
A final ruling after the two-day hearing is not expected until next year. Millionaire Harry Potter author JK Rowling is a donor to FWS. She said last week: “If a man is a woman, there’s no such thing as a woman”.
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