The Supreme Court is deciding what a 'woman' is - but it is obvious to toddlers

15 April 2025, 14:52

Tomorrow marks the culmination of a five year legal fight when the Supreme Court decides the definition of “woman” - not in a biological sense of course, but how the word is defined in equality law in the UK.

It is almost incomprehensible that women - mostly volunteers - have had to expend so much time, energy, and money on something that is obvious to toddlers.

This began in 2018, when the Scottish Government passed the Gender Representation on Public Boards Act, a piece of legislation designed to ensure equal representation for women on these boards. However, the definition of just who or what a woman is in this piece of law relied on self-identification: women, it seemed, were nothing more to the Scottish Government than an electricity bill or a pronoun. In 2022, the Inner Court in Scotland determined that this definition was not consistent with the Equality Act and that the Scottish Government had overstepped its competency.

It’s worth remembering, even as we hope for victory tomorrow, that, since we first took the Scottish Government to court in 2020, we have clarified a great deal and, thanks to our first Judicial Review win and subsequent rulings, women are on much firmer ground when challenging policies based on self-identification. Although many organisations, including the NHS and the Scottish Government have tried to resist expunging these policies in schools, hospitals, and other public services, any ruling from the Supreme Court is likely to reinforce that identity is not a passport to women’s spaces and services.

At issue, then, is the small cohort who possess a Gender Recognition Certificate (GRC). However, this is not a numbers game. As the Equality and Human Rights Commission has made clear, if this group with GRCs really can claim the rights and protection of the opposite sex, it will make the operation of the Equality Act nigh impossible in practice.

For too long, politicians have tried to ignore these implications. The Scottish Government, indeed, seems to believe in Schrodinger’s GRC: during the passage of the Gender Recognition Reform Bill, they argued it was a simple bit of admin which would have no bearing on the Equality Act, but in court, they claimed it could turn heterosexual men into lesbians and deprive some biological women of maternity rights.

Should we lose tomorrow it is likely that the court will throw the problem back to the politicians. MPs at Westminster will be left with the complicated, thankless task of detangling the anomalies created throughout legislation. Should we win, the law will be simple and straightforward: Men are men and women are women.

We cannot help but think that many politicians and others in authority will be hoping that the Supreme Court saves them the headache.

Susan Smith of For Women Scotland, the group which is taking the legal action.

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