'Certificated' sex described as a 'legal fiction' in Supreme Court

The Supreme Court is debating what the legal definition of a woman is after a long-running legal battle in the Scottish courts over the issue.

This comes after the Scottish Government issued guidance stating that a trans woman who has a gender recognition certificate could be classed as a woman for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.

Aidan O’Neill KC, representing the campaign group For Women Scotland, told the court that “sex is an immutable biological fact”.

He said: “This is a black letter legal question - does the legal fiction triumph or does principle save the day for biological reality?

“These submissions are not transphobic.

“It was never the [Scottish] Parliament’s intention that the application of the Equality Act results in absurd or nonsensical outcomes.

“That is why it is necessary for this court to uphold the appellant’s arguments that sex means sex, and not the legal fiction put forward [by the Scottish Government].”

He added: “Our submission is that sex just means sex - that the word woman and the word man are understood and used in ordinary, everyday language and used in everyday situations by ordinary people.

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“The best way of ensuring a coherent, stable and workable outcome is achieved is to adopt the approach that is constant and predictable - that will be achieved if the legislation approves the ordinary meaning of the words used.”

He added including trans women in the definition of women was leading to “complexities” and “monstrous misunderstandings”.

Mr O’Neill added that “sticking with men being men, women being women, and sex being sex” means there is a “common sense understanding” of the Equality Act which ordinary people can comply with.

This court case comes on the back of the Gender Recognition on Public Boards (Scotland) Act 2018, which requires 50 per cent of members on a Scottish public board to be female - however, it allows trans women with a gender recognition certificate to be classed as a woman for this purpose.

In 2022, For Women Scotland challenged this over the act’s inclusion of trans women in the definition of women.

The Court of Session agreed, ruling the act’s definition was unlawful as it dealt with matters falling outside the Scottish Parliament’s legal competence.

Following this court challenge, the Scottish Government was forced to drop including trans women in the definition of women in this act, and instead issued guidance on how boards can comply with the law.

This guidance said the definition of a woman was the same as that set out in the Equality Act 2010, and that a trans woman with a gender recognition certificate also has the sex of a woman.

Mr O’Neill said this guidance is “unlawful” and shows Scottish ministers have “a misunderstanding of the statute”.

For Women Scotland also challenged this guidance in the courts on the grounds that sex under the Equality Act 2010 refers to its biological meaning, and said the Scottish Government was overstepping its powers by redefining the meaning of the word “woman”.

This challenge was rejected by the Court of Session’s Outer House in December 2022 and was upheld by the Inner House in November 2023 - however, For Women Scotland did get permission to appeal this in the UK Supreme Court, which has led to this week’s court hearing.

During the evidence session Mr O’Neill also gave an overview of the history of legal discrimination against women and said the court needs to guard against an “inevitable and insidious pull towards patriarchy”.

He went on to list a number of examples of what he says is “patriarchy in action”, including blocking women from accessing rape support if they object to it being from a trans woman, having post-sexual assault medical exams performed by trans women, insisting lesbian groups include trans lesbians and allowing trans women to compete in women’s sport.

Mr O’Neill also said there has been the “erasure of the word women” in a medical setting, referring to the words “menstruator”, “anyone with a cervix”, “birthing people”, “people with uteruses” and “chest-feeding” in medical dialogue.

He also argued that a trans man who has received a gender recognition certificate loses certain women’s rights such as maternity support and protections if they become pregnant.

Speaking outside the Supreme Court in London, Susan Smith from For Women Scotland told GB News: “It’s really important for the ongoing protection and preservation of women-only spaces and services.

“Our KC set out some of the issues that arise in this completely mish-mash definition of what a man and a woman is as outlined by Scottish ministers is adopted.

“In practice, it makes the operation of single-sex spaces going forward pretty much impossible and that is a huge risk for women.”

She added: “The public are starting to realise this is about women’s rights, something we fought for for a very long time.

“This is about whether or not as a society we value women.”

She added trans people are already protected under the Equality Act, and said this redefinition is “eroding women’s protection”.

She said: “This is as insane as deciding that the characteristic of disability automatically includes everyone over the age of 60.

“It takes rights away from the people who need it and gives it to people who don’t need it.”

On Wednesday the court will hear from Ruth Crawford KC, who will respond on behalf of the Scottish Government.

The Scottish Government’s case will lean on the wording of the Gender Recognition Act 2004, which says a gender recognition certificate changes one’s sex “for all purposes”.

Despite the hearing lasting only two days, it is likely to be into 2025 before a judgement is reached.