Women Scotland Ltd v Scottish Ministers 2025
For Women Scotland Ltd, a feminist organisation campaigning for women's, and children's, rights in Scotland, challenged guidance issued by the Scottish Ministers on the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act). The guidance stated that trans women with a gender recognition certificate (GRC) could be counted towards meeting the 50% gender representation objective for women on public boards. For Women Scotland argued this interpretation of 'woman' was unlawful and exceeded the Scottish Parliament's legislative competence under the Scotland Act 1998.
On 13 December 2022, the Outer House of the Court of Session dismissed For Women Scotland's petition challenging the guidance. The Second Division of the Inner House of the Court of Session dismissed For Women Scotland's appeal, ruling that the Guidance on the 2018 Act was lawful because a person with a GRC in the female gender is a 'woman' for the purposes of section 11 of the Equality Act 2010. For Women Scotland appealed to the Supreme Court.
For Women Scotland argued that the definition of 'sex' in Equality Act 2010 refers only to biological sex, not 'certificated sex' under the Gender Recognition Act 2004. The Scottish Ministers and the Equality and Human Rights Commission argued that Gender Recognition Act 2004 modified the meaning of 'sex' in the Equality Act 2010 to include trans people with a GRC.
Held
Appeal allowed.
The court allowed the appeal and ruled that the Scottish Ministers' guidance was incorrect. A trans woman with a GRC does not fall within the definition of 'woman' for the purposes of sex discrimination under the Equality Act 2010. Consequently, the Gender Representation on Public Boards (Scotland) Act 2018 is within the legislative competence of the Scottish Parliament when properly interpreted.
The court examined the wording, context and purpose of the Equality Act 2010 and held that interpreting 'sex' as 'certificated sex' would render core provisions of the Act incoherent and unworkable in practical application. Principles of legal certainty and consistency require a single biological definition of 'woman' and 'sex' throughout the Act. A certificated definition would undermine protections for women and create inappropriate distinctions between trans people with and without GRCs. The Equality Act 2010 provisions should be interpreted as disapplying the 'certificated sex' rule from the Gender Recognition Act 2004 under section 9(3) of that Act. The words 'sex', 'woman' and 'man' in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man. The court's conclusion does not remove or diminish the important protections available under the Equality Act 2010 for trans people with a GRC. This potentially vulnerable group remains protected. In these circumstances, and notwithstanding that there is no express provision in the Equality Act 2010 addressing the effect which section 9(1) of the Gender Recognition Act 2004 has on the definition of 'sex', the Equality Act 2010 does make provision within the meaning of section 9(3) that disapplies the rule in section 9(1) of the Gender Recognition Act 2004.
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Reproduced with permission of Reed Elsevier (UK) Limited, trading as LexisNexis.
