‘What is a woman’ ruling: ‘There will be people who think this embeds discrimination’

Read time: 5 mins

In brief…

• Campaigners drank champagne outside the Supreme Court after it determined that the word “woman”, as referred to in the 2010 Equality Act, refers only to “biological women”, and not to trans women who have undergone gender reassignment procedures.
• The judge insisted that transgender people are still protected from harassment on the basis of their gender identity under law, and said the finding should not be seen as a victory for either side of the trans ‘debate’.
• The News Agents describe the conversation around trans issues as “toxic”, often taking priority over real issues which women face, such as sexual assault from men, pay issues and childcare.

What’s the story?

Approximately 0.5% of the British population identify as transgender, but the conversation around their existence and rights has dominated culture wars and bitter social media conversation in recent years.

Today, activist group For Women Scotland, won a Supreme Court ruling over the legal definition of the word "woman" as recognised by law in the 2010 Equality Act.

The judge agreed there was a clash between this definition and the protections against discrimination offered to trans people who have undergone gender reassignment procedures in the 2004 Gender Recognition Act.

Acts protecting women pre-dating the 2010 equality act applied to "biological women", which Lord Hodge, who presided over the case, said must remain in legal issues relating to women.

He was explicit, however, that trans people are still a protected group in UK law against "discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender."

Kemi Badenoch, leader of the Conservatives, has celebrated the Supreme Court's decision, claiming "women are women and men are men: you cannot change your biological sex."

What's the background?

The case was originally brought by For Women Scotland due to a law introduced in 2018 by Scotland's SNP government in 2018, which sought to increase the number of women on the boards of public companies.

This, following the 2010 Equality Act, included trans women, which the group objected to.

Emily Maitlis describes the conflict between the Equality Act and the Gender Recognition Act as a "parliamentary fudge".

"It's a fuck up, it is an overlap of two bits of legislation that they've had to make sense of," she says.

"It was a unanimous decision by the court that the terms women and sex in the Equality Act referred to a biological woman and biological sex."

Was this a victory for the women who brought the legal challenge?

Judge Hodge was specific in his ruling – while the 2010 Equality Act refers to "biological women", trans women are still protected under law against discrimination due to their gender, and said the result of the trial was not to be seen as a victory for either side of the issue.

But as For Women Scotland activists popped champagne outside the court in front of TV cameras, Emily says this was precisely "the sense of victory versus defeat that we have seen played out".

"It is a victory for women's campaigners who say a woman is a woman at birth, and you cannot change your sex just because you've got a gender recognition certificate," says Jon Sopel.

"And I think that trans activists would say they have suffered a heavy defeat today."

Lewis Goodall says that many trans people will see today's ruling as having created a two-tier system.

"If you're a trans person, you've gone through the full process of gender reassignment, which is meant to affirm your identity in the law, you do not count as a woman in this case – in one of the UK's most important anti discrimination laws," Lewis says.

"There is something by definition about a court judgment, which is – if you'll forgive the use of the word in this context – binary. It is a win or a loss. You're guilty or innocent."

"Whatever you think about that, whether you think that's right or sensible or wrong, there will be people who do think that embeds discrimination."

The News Agents are all in agreement that this case never needed to happen – as parliament could have stepped in at any point to clear up what the definitions of the Equality Act really were.

"It chose not to do so, basically because most politicians found this question too difficult," Lewis adds.

What's The News Agents' take?

The ruling has made headline news across the UK, but ultimately affects a very small number of people.

"This debate, in reality, affects very few people, but has taken up an inordinate amount of oxygen," says Jon.

Lewis describes the ongoing conversation around trans rights in the UK as "toxic", and often "not measured whatsoever".

He adds that the judgement, rather than being a moment of "clarity or closure" could instead give a green light to people with "an unpleasant agenda" against trans people to ramp up attacks on trans people, their rights and their identities.

Jon says that while there are women's groups who argue against trans inclusion "from a feminist perspective", the topic has been "seized" by the populist right and are claiming the result as a huge victory.

"I understand why many women, feel really passionate about it, but I do sometimes feel there is just an element, like there is with the immigration debate, where we basically, alight upon a group of people, and we seem to pretend all of our problems within society are down to that group of people," says Lewis.

"If we think about the problems women face, let's talk about sexual violence. We know who perpetrates the vast majority of female violence. It's men. It's men who are born as men, in the streets, or it's in the family home. It is unequal pay. It is issues around childcare."

He says these issues are "squeezed out" of the conversation around women's rights in order to focus on trans issues.

"It is increased and amplified out of all proportion by the media, which is obsessed with it.

"I'm not saying it's just a media debate, but my word is it frothed up and made into a frenzy."

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