As a Scottish gay man deeply invested in the advancement of LGBTQ+ rights—and with a lukewarm interest in Scots Law—I have been closely following the Supreme Court case of For Women Scotland Ltd v The Scottish Ministers. This case centers on whether individuals with a Gender Recognition Certificate (GRC) identifying them as female are legally recognised as "women" under the Equality Act 2010. After reviewing the hearings and legal arguments, I believe the appeal will be refused. Yes, I watched the whole thing—so you don't have to.

Procedural Context and the Question Before the Court

The legislative background starts with the Gender Representation on Public Boards (Scotland) Act 2018, which aims to increase the proportion of women on public boards. The Scottish Ministers issued statutory guidance which defined "woman" to include transgender women with a GRC. This definition was challenged by For Women Scotland Ltd (FWS), arguing it was beyond legislative competence because it redefined a protected characteristic in the Equality Act 2010, a reserved matter.

After the Court of Session (Inner House) upheld the guidance (I will do my best to create a post about the Scottish Courts System), FWS appealed to the UK Supreme Court. The central legal question is whether the statutory definition of "woman" in the Scottish Act, including trans women with GRCs, unlawfully expands the Equality Act definition of "woman," thereby exceeding devolved legislative competence under the Scotland Act 1998.

Arguments Advanced by the Appellants (For Women Scotland Ltd)

The core argument advanced by FWS, instructed by Aidan O'Neill KC, is that the term "woman" in the Equality Act refers exclusively to biological females. Counsel argued that the Scottish Parliament, by including trans women with GRCs in the definition, unlawfully redefined a reserved characteristic. They relied on the textualist interpretation of the Equality Act, highlighting that the Act treats sex and gender reassignment as distinct protected characteristics (sections 11 and 7).

FWS also invoked principles of statutory construction, arguing that if Parliament had intended "sex" to include acquired gender following the grant of a GRC, it would have done so explicitly. They cited Corbett v Corbett [1971] P 83 (though outdated) and academic commentary supporting a strict biological interpretation of sex. O'Neill also stressed that exceptions in Schedule 3 (e.g., for single-sex services) would become incoherent or redundant if sex were interpreted to include acquired gender.

This line of reasoning led to an aggressive courtroom posture. Rather than engaging with the purposive interpretation that underpins much of equality law, the appellants relied on rhetorical appeals to legislative sovereignty and biological determinism. The decorum of the court was notably strained, with justices often pressing counsel to clarify the coherence of their assertions under existing legislative frameworks.

Arguments Advanced by the Respondents (Scottish Ministers)

Counsel for the Scottish Ministers, Ruth Crawford KC, advanced a more measured and principle-based argument. They submitted that under the Gender Recognition Act 2004, a person with a GRC is to be treated "for all purposes" as being of their acquired gender (section 9(1)). Therefore, a trans woman with a GRC is a woman in law. Crawford contended that this includes their recognition for the purposes of public board representation.

The Respondents also highlighted that the Gender Representation on Public Boards Act did not create or modify the definition of the protected characteristic of sex. Rather, it operates in a specific public law context and remains consistent with the Equality Act and the GRA. Crawford emphasised the principle of harmonious construction, arguing that devolved legislation should be interpreted in a way that does not create unnecessary conflict with UK legislation.

Further, the Respondents relied on the decision in A v Chief Constable of West Yorkshire Police [2004] UKHL 21 and Christine Goodwin v United Kingdom (2002) 35 EHRR 18, both of which support the full legal recognition of a person’s acquired gender post-transition. These authorities underpin the view that the law is capable of accommodating trans identities within the framework of existing protections without undermining the rights of others.

Interveners and the Tone of the Proceedings

Interveners included the LGB Alliance, Sex Matters, and Equality and Human Rights Commission (EHRC). Of particular concern was the tone adopted by LGB Alliance and For Women Scotland. Their submissions, both written and oral, leaned heavily on narratives suggesting that recognition of trans identities undermines the rights of cisgender women. These submissions were forceful and, at times, polemical, leading to criticism from legal observers (plus me) about the deviation from the Supreme Court's tradition of respectful and principled advocacy.

Groups like FWS and LGB Alliance have histories of making statements many consider transphobic. The LGB Alliance has, for example, opposed the inclusion of trans people in conversion therapy bans and has publicly questioned the legitimacy of trans identities. These stances have rightly drawn criticism and should contextualise how their legal arguments are received—especially when human rights are at stake.

Legal Authorities and the Likely Outcome

The case law overwhelmingly supports the Respondents. The principle in Ghaidan v Godin-Mendoza [2004] UKHL 30 encourages courts to interpret legislation compatibly with Convention rights. Recognising GRC-holding trans women as women upholds their Article 8 (private life) and Article 14 (non-discrimination) rights under the ECHR.

Further, the Supreme Court’s own jurisprudence on devolution—particularly AXA General Insurance Ltd v Lord Advocate[2011] UKSC 46—supports a generous interpretation of the legislative competence of devolved institutions unless there is a clear conflict with reserved matters.

Given that the Scottish legislation does not redefine the protected characteristic of sex but merely applies existing legal definitions (including those in the GRA 2004), I believe the appeal will be refused. The legislation is consistent with both the letter and spirit of the UK’s legal framework, including the Equality Act and human rights law.

Conclusion

This is not simply a legal skirmish over statutory language—it is a case with immense implications for how we include or exclude trans individuals from public life. For Women Scotland and similar groups have positioned themselves as defenders of biological essentialism. But the law—grounded in principles of equality, dignity, and respect—tells a more inclusive story. I believe the UK Supreme Court will recognise that, and in doing so, reaffirm that the rights of trans people are not second-tier rights. We will all be watching the outcome with hope, and I, for one, expect justice to be done.