In the United Kingdom, the Supreme Court clarifies the term “woman”
Apprised by a Scottish feminist association, the United Kingdom Supreme Court has clarified the term “woman” by referring it to the “biological sex”.
This decree must be understood in its legal context. The Court gave a ruling on the interpretation of the word “woman” in the Equality Act, which was adopted in 2010. That law provides legal protection for people against discrimination at the workplace and more broadly in society. It picks up on the various laws adopted for the protection of women against discrimination at the workplace (1975), the question of discrimination based on racial criteria (1976) or on forms of handicap (1995).
What was at stake in the decision by the Supreme Court ?
In the context of this Equality Act, the question being asked was to understand whether the term “woman” and the word “sex” refer to a biological reality or whether so-called “trans women” were also included in that definition. In the United Kingdom, since 2004, a Gender Recognition Act establishes that a person can request a Gender Recognition Certificate, (GRC) to certify a change of gender.
They must provide proof that they have undergone a gender dysphoria, that they have lived under their acquired gender for at least two years and that they intend to continue so doing for the rest of their life.
The words are simple, but the question asked is a question of interpretation of the words. The Scottish legislator, who enjoys a certain legislative independence, in 2018 adopted a law demanding representation quotas of women on the management boards of public authorities. The intention was to achieve a 50/50 distribution between women and men.
For the application of that law, the Scottish authorities raised directives specifying that people bearing a female gender certificate are included in the definition of the word “woman”.
Who were the parties concerned by this appeal ?
The “For Women Scotland” feminist association has appealed against this decision by the Scottish administration. Dismissed by the Scottish jurisdictions in the first instance and on appeal, the association referred its case to the United Kingdom Supreme Court, against the Scottish Ministers. According to the feminist association, on their web-site, “There are only two sexes, a person’s sex is not a choice, nor can it be changed. Women have a right to privacy, dignity, safety and equity. Our legal rights must be protected and reinforced. We are conducting a positive campaign in favour of women and we are calling for evidence-based discussions.”
Founded in 2020, the association opposed the project by the Scottish Ministers to establish Gender Recognition Certificates on the sole basis of a self-declaration.
This question is sensitive in Scotland in particular following administrative decisions concerning imprisonment locations of those guilty of rape. One of the most widely covered cases concerns Bryson. Accused of two rapes in 2016 and 2019, he started a “gender transition” in 2020 and was incarcerated in a prison for Scottish women, whilst remaining isolated from the women prisoners. In fact, the Scottish prisons administration since 2014 has followed the policy of incarcerating prisoners according to the gender which they claim.
What does the Supreme Court say in its judgement ?
The Court voted unanimously that in the Equality Act, the words “woman” and “sex” refer to the biological reality. The Court was careful to record that its judgement concerns only the interpretation of the words in the 2010 Equality Act. At the end of its 88-page judgement, the Court specifies that its decision does not establish any discrimination against so-called “transgenders” since they already benefit from protection by law against discrimination or harassment.
On the other hand, the Court notes several reasons for applying to the word “woman” a definition linked to biology. Among the reasons quoted:
- The freedom of association for women and men who wish to found single-sex associations is protected.
- In the event of maternity, a women declaring to be a man continues to be protected from discrimination on the basis of her biological sex.
- The possibility for an employer to hire only people of one sex for particular positions is also protected. For example, women attendants on hospital wards reserved for women.
- Clarification is provided for sport associations.
- In total, the Supreme Court founded its unanimous decision on the need for clarity in the definition of the words woman, man, sex, whilst remaining consistent with the understanding of these basic realities within society. It also took into consideration the need to retain adequate protection for women.
Self-determination has its limits and this judgement reasserts that fact.
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