Directors of For Women Scotland make a statement outside Britain’s Supreme Court in London on Wednesday, following the court’s ruling on how to define a ‘woman’. 
| Photo Credit: AFP

On April 16, the U.K.’s Supreme Court unanimously ruled that only biological women and not transwomen meet the definition of a woman under equality laws. The central question in For Women Scotland Ltd. (Appellant) vs The Scottish Ministers (Respondent) was “whether the Equality Act 2010 treats a transwoman with a gender recognition certificate (GRC) as a woman for all purposes within the scope of its provisions, or when that Act speaks of a ‘woman’ and ‘sex’, it is referring to a biological woman and biological sex”.

The ruling

In an 88-page judgment, the five judges – three men (Lord Reed, President Lord Hodge, Deputy President Lord Lloyd-Jones) and two women (Lady Rose, Lady Simler) – held that they wanted to address the “meaning of the words” which Parliament used in EA 2010 in “legislating to protect women and members of the trans community against discrimination.” It said that among the people whom the EA 2010 recognises as having protected characteristics are women, whose “protected” characteristic is sex, and “transsexual” people, whose “protected” characteristic is gender reassignment. After hearing both the appellant and the respondent, and experts and activists, Britain’s highest court gave its “statutory interpretation” that the terms ‘woman’ and ‘sex’ in the EA 2010 refer only to a biological woman and biological sex.

Trans rights

Trans supporters and campaigners worry that the ruling is a setback for trans inclusion. Jane Fae, director of the campaign group TransActual, told The Guardian, that the ruling had stripped away protections for trans people to the “bare minimum, by reducing the legal protections only to cases involving harassment, discrimination or equal pay”. Kishwer Falkner, the chair of the Equality and Human Rights Commission (EHRC), added to the fears of the trans community by saying that the court’s judgment meant only “biological women could use single-sex changing rooms and women’s toilets, or participate in women-only sporting events and teams, or be placed in women’s wards in hospitals.” Many trans people who have undergone gender reassignment admit that the toilet issue — should transwomen be allowed in women-only spaces? — needs to be sorted out. The judges counselled against reading the judgment as a triumph for one or more groups in society at the expense of another —“it is not,” Justice Hodge told the media. The judges are of the view that the Gender Recognition Act 2004 continues to provide legal recognition of the rights of transgender people, which has practical effects for individual rights and freedoms “(including, for example, in the context of marriage, pensions, retirement and social security).” Transgender people, the ruling noted, are also protected by the indirect discrimination provisions of the EA 2010 “without the need for a certificated sex reading of the EA 2010”.

Gender laws

The movement to change transgender laws has ebbed in Scotland after the exit of Scottish National Party leader Nicola Sturgeon. She suddenly resigned in 2023, but not before getting a lot of criticism for her plans to change gender laws so that those with gender recognition certificates could be entitled to the same protections as biological women. The Scottish government said it accepted the judgment and protection of rights of all groups would underpin future moves. For Women Scotland, who appealed against the Scottish government’s plans, said it was vindicated because it had argued that only biological women should be entitled to rights for women.

The UN Human Rights Commission uses the term ‘transgender’ as an umbrella term to describe people whose sense of their own gender is different to their sex at birth. Human rights abuses against transgender people include violence, discrimination (the hijra community in India is ghettoised and struggles to get health care or education or housing), lack of legal recognition of their identity and harassment. Trans people are often branded as ill, “pathologised”, but being different, says the UN, should not be treated as a disorder. The UN has highlighted that pathologisation is one of the root causes of human rights violations faced by trans people.

In countries around the world, there has been an increasing decimation of rights for people who do not fit into the binary of male and female. In Hungary, for example, a wider crackdown on the LGBTQIA+ community impacted transgender people with the government stating that there are two sexes, male and female, and that legal norms are based on “biological reality”. President Donald Trump of the U.S. signed an executive order banning transgender athletes from participating in girls’ and women’s sports – a hotly debated, divisive topic.

The ruling will have an impact on sport where athletics, cycling and aquatics have already banned transgender women from participating in women’s events. Reuters reported that the English Football Association has introduced stricter rules, but still allows transgender women in the women’s game as long as their testosterone was kept below a certain level. These norms are likely to change after the ruling.

In the U.S., Mr. Trump has also signed orders saying the government recognises only two sexes: male and female. Experts say “gender is a spectrum, not a binary structure”. India passed the Transgender Persons (Protection of Rights) Act in 2019, which defines a transperson as someone whose gender does not match the one assigned at birth. It prohibits discrimination against them in employment, education, housing, healthcare and other services. But the community was aghast at some of the clauses, including a mandate that each person would have to be recognised as “transgender” on the basis of a certificate of identity issued by a district magistrate. This overlooked a recommendation by the 2016 Standing Committee to have a screening committee. If the district magistrate refused to hand out such a certificate, there was no scope for an appeal or redressal. The demand from trans people has always been that any legal framework should factor in suggestions from the community.