The supreme court has been urged to recognise “the facts of biological reality rather than the fantasies of legal fiction” in a case brought by Scottish campaigners to resolve how women are defined in law.
For Women Scotland is challenging a prior ruling by the court of session in Edinburgh, which found that guidance extending the definition of “woman” to transgender women with a gender recognition certificate (GRC) was lawful.
The supreme court hearing, which began on Tuesday, marks the conclusion of a long-running court action by For Women Scotland over the Gender Representation on Public Boards (Scotland) Act 2018, which was aimed at improving gender balance.
They have argued consistently that this minor piece of Holyrood legislation has wide-ranging ramifications for women’s rights under the UK-wide 2010 Equality Act.
Addressing the court, Aidan O’Neill KC said that For Women Scotland’s submission was that “in the Equality Act sex just means sex, as that word and the words woman and man are understood and used in ordinary, everyday language … by ordinary people”.
He argued that Scottish ministers’ position that the Equality Act created a “new legal category of ‘certificated sex’” – determined by what it says on a birth certificate, whether that remains as it was or is later altered by a GRC – was wrong and should be rejected by the court.
Campaigners who argue that the rights of trans women with a GRC could come into conflict with women’s rights under the Equality Act – such as over access to single-sex services – are hoping for a definitive ruling on the legal definition of woman. That issue has challenged politicians and policymakers in recent years as concerns about the apparent clash have grown in force.
For Women Scotland, with interventions from other campaign groups including Sex Matters and the LGB Alliance, is appealing against the ruling of Lady Haldane in 2022, who stated in her judgment that the meaning of “sex” for the purposes of the 2010 act “is not limited to biological or birth sex, but includes those in possession of a GRC”.
O’Neill told the court that historically women had been discriminated against by biological determinism – for example, defining jobs they were deemed capable of doing – but now faced “biological denialism”.
He said: “That is to say that being a woman has nothing to do with biology and it is therefore not open to women to seek to deny men who identify as women and [have a GRC] access to women’s spaces.”
O’Neill argued that to take the Scottish government’s view was “to capitulate to patriarchy rather than confront it”.
The Harry Potter author and activist JK Rowling donated £70,000 to the appeal’s crowdfunder, which has now raised more than £200,000.
Other prominent campaigners packed the court benches, including Maya Forstater, who founded Sex Matters after winning an employment tribunal that found she was unfairly discriminated against because of her gender-critical beliefs, and the former SNP MP Joanna Cherry, who has been outspoken on the Scottish government’s stalled attempts to change the process of gender recognition.
The appeal before Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Rose and Lady Simler is expected to last two days, with submissions from Scottish ministers heard on Wednesday.
