Trans Women Not Legally ‘Women,’ UK Supreme Court Rules
The landmark decision by the UK's highest court limits the legal definition of 'woman' to those assigned female at birth.
The Supreme Court of the United Kingdom, Britain’s highest court, unanimously found that the terms “woman” and “sex” as used in the country’s Equality Act — the national law prohibiting instances of sex-based discrimination — refer only to individuals who were biologically female at the time of their birth.
The advocacy group that brought the case, For Women Scotland, sought to clarify that the term “sex” refers only to one’s assigned sex at birth, based on their biological or chromosomal makeup.
The group felt that the clarification was necessary after the Scottish government eliminated the requirement that a person must be medically diagnosed with gender dysphoria to legally change one’s gender identification, thereby making it easier for people to do so based solely on self-identification.
For Women Scotland argued in court that allowing transgender women to be legally considered “women” would lead to the end of single-sex facilities and opportunities for women.
The group specifically challenged guidelines issued by the Scottish government requiring equal representation of women on public boards, arguing that giving a female-designated spot on a board to a trans women would rob a cisgender women of holding that same spot and would not result in gender parity.
While the Equality Act also contains separate, specific protections for individuals who undergo gender-affirming surgery — as well as protections based on age, disability, marital status, race, religion, and sexual orientation — For Women Scotland argued that it did not want to change or eliminate those other protections.
Instead, the group sought to ensure that transgender women who had obtained a gender recognition certificate (GRC) — a document given out to individuals who have been diagnosed with gender dysphoria, have undergone surgical transition-related procedures, and lived in their stated gender for more than two years — would not be considered “women” legally and therefore have no right to access female-designated spaces or services.
The five-member UK Supreme Court agreed.
They found that the way the Equality Act defines sex “makes clear that the concept of sex is binary, a person is either a woman or a man,” and that specific protections for women “necessarily exclude men.”
The judges also cited practical justifications for their argument, saying it would make “no sense” for conduct under the Equality Act to be regulated “by reference to categories that can only be ascertained by knowledge of who possesses a [confidential] certificate.”
In reading out the ruling, Patrick Hodge, the deputy president of the Supreme Court of the United Kingdom, warned the public against interpreting the ruling “as a triumph of one or more groups in our society at the expense of another” — namely, prioritizing the rights of cisgender women over transgender women.
Instead, he noted, transgender people would continue to be protected by other provisions prohibiting trans-specific discrimination and harassment in the Equality Act, regardless of whether they posses a GRC.
A statement by the British government said it has always supported the protection of single-sex spaces based on biological sex, adding that the ruling brings “clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs.”
Equality and Human Rights Commission Chairwoman Kishwer Falkner said that the commission would update public codes to comply with the ruling.
Those codes would prohibit transgender women from being allowed into restrooms, hospital wards, and sports teams designated explicitly for females, according to the Associated Press.
Falkner also noted that there was no law requiring single-sex spaces in buildings, and encouraged transgender people to advocate for the installation neutral spaces, such as unisex toilets or changing rooms. She also said that the commission would continue to defend transgender people from other forms of discrimination.
“They have rights, and their rights must be respected,” she said. “It’s not a victory for an increase in unpleasant actions against trans people. We will not tolerate that.”
Transgender rights advocates expressed dismay over the ruling, noting that the decision leaves transgender women, especially those that have received a GRC or transitioned medically, in legal limbo in terms of which spaces to enter.
“My concern is that if the equalities minister does push for transgender people to be shut out from these spaces, as they say, there’s going to be nowhere else for them to go,” said Cleo Madeleine, a spokesperson for Gendered Intelligence. “The message we’re getting, frankly, from the highest equalities office in the country is that they want to get rid of us, and they don’t really care where we go.”
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