A campaign group of Scottish feminists has lost its appeal over the legal definition of the word ‘woman’.
For Women Scotland had contested whether transgender women with a gender recognition certificate (GRC) had the same legal rights as women under the Equality Act 2010 – which counts sex as a protected characteristic.
But in a written ruling, Lord Chief Justice Clerk Lady Dorrian reaffirmed that a person with a GRC ‘in the female gender’ is defined as a woman under the act.
Crucially however, the judgment also found that transgender people without a GRC are left with the legal status of their birth sex.
In a post on X formerly known as Twitter, campaigner Feminist Roar received a thumbs up from JK Rowling herself after writing that women’s rights were ‘being undermined by the dilution of our legal protections under the Equality Act’.
For Women Scotland had appealed to the Court of Session – Scotland’s supreme civil court – after losing a Judicial Review over legislation introduced in 2018 to address gender imbalance on public boards.
Supporters of For Women Scotland and the Scottish Feminist Network pictured protesting outside the Scottish Parliament in December 2022, ahead of a vote on the Gender Recognition Reform Bill
Gender recognition reform has become a fierce political debate in Scotland. (Pictured: A For Women Scotland protester in December last year)
For Women Scotland had appealed to the Court of Session – Scotland’s supreme civil court – after losing a Judicial Review last year
Scottish ministers had insisted transgender women with a GRC would be included under the new law, a stance opposed by the campaigners.
Responding to the latest ruling, For Women Scotland said: ‘Naturally, we are hugely disappointed in [the] judgment, which has ruled that women’s protections under law may – in some cases – include men who have obtained a GRC.
‘We are obviously still analysing the decision and will be speaking to our legal team in due course to consider the possibility of a further challenge.’
LGBTQ+ charity Stonewall praised the court’s decision. A spokesman said: ‘This ruling is welcome and it serves to affirm what the long standing law on this has always said.
‘It also demonstrates that the way trans people are accepted and counted as who they are is working – despite a concerted campaign by anti-trans campaigners to remove the existing rights trans people have had for decades.’
The Equality Act does allow for some ‘proportionate means’ for exclusion of transgender people with a GRC.
Upon this point, legal expert Dr Michael Foran wrote for Unherd: ‘It is more likely to be lawful to exclude a [biological] male with a GRC stating they are a woman from a rape crisis centre or a changing room than it will be to exclude them from a women-only hair salon or leadership training course.’
Other interested parties also made submissions in the case, among them Baroness Falkner, chairman of the Equality and Human Rights Commission (EHRC) and campaign group Sex Matters.
Baroness Falkner questioned whether the law would impact upon lesbians’ and gay men’s groups, writing: ‘If sex means legal sex, then sexual orientation changes on acquiring a GRC: some trans women with a GRC become legally lesbian, and some trans men with a GRC become gay men.’
After the Scottish Parliament voted through Nicola Sturgeon’s Gender Recognition Reform Bill in December last year, the UK government intervened
But the ruling responded it found this submission ‘hard to follow’ adding: ‘There is no such thing as being “legally lesbian” and we have not identified a problem which would require that sex be referable to biology alone.’
Reflecting on this part of the judgment, Sex Matters stated: ‘The judgment’s assertion that there is no such thing as being “legally lesbian” does nothing to resolve the issue of whether lesbians can legally form associations which exclude men who identify as lesbians and who have a GRC which deems them to be female.’
Gender recognition reform has become a fierce political debate in Scotland.
The SNP and Green Party have both campaigned to make it easier for people to change their legal gender, while opponents claim there is a clash between advancing trans rights against women’s and LGB rights.
After the Scottish Parliament voted through Nicola Sturgeon’s Gender Recognition Reform Bill in December last year, the UK government vetoed it using Section 35 powers – arguing the proposed changes had implications for the UK-wide Equality Act.