On April 16th 2025 the Supreme Court handed down its judgment in the case of For Women Scotland v The Scottish Ministers [2025] UKSC 16. A summary is here For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent). More expert minds will go on to unpick the detailed legal arguments but I hope what follows is a useful summary of where we are now, and where we might hope to go.
In brief, For Women Scotland appealed against guidance issued by the Scottish Government about the Gender Representation on Public Boards (Scotland) Act 2018. This had the noble aim of promoting the involvement of women in public life, but included as women, men who declared themselves women and had a Gender Recognition Certificate (GRC) to prove it, issued pursuant to the Gender Recognition Act 2004.
The Gender Recognition Act is a masterpiece of obfuscatory drafting, suggesting sex and gender identity are interchangeable
The Supreme Court unanimously allowed the appeal and declared that the meaning of “man”, “woman” and “sex” in the Equality Act 2010 referred to biological sex and not “certified sex”, a legal fiction created by a GRC.
I had been pessimistic in the days leading up the judgment, opining that I did not see how the Supreme Court could shake off the impact of the GRA. I was very worried they would have to affirm the “legal fiction” that a man is actually a woman if he pays £5 for a certificate that says he is and the best I could hope for is that the Supreme Court would send a clear message to Parliament to amend the law.
The Gender Recognition Act is a masterpiece of obfuscatory drafting, suggesting that sex and gender identity are interchangeable. Internal Government emails produced via a freedom of information request, suggests this was done deliberately to muddy the waters and thus make it more difficult to challenge a man in a female space.
Via section 9(1) the Act declares that a GRC means trans people are to be considered their “acquired gender” for all purposes, but the Act goes on to consider some rather obvious exceptions to this, such as sporting events. Unsurprisingly, activists then focused on the “all purposes” part and even successfully persuaded most public bodies that even without a GRC a man was a woman if he declared himself to be so.
The Equality Act 2010 does not expressly address section 9 (1) and the Supreme Court had to carefully analyse its provisions to decide whether reference to “sex” within that Act means biological sex or “certified sex”.
The Supreme Court concluded that to include “certified sex” would cut across the definitions of “man” and “woman” in an incoherent way, create a “two tier” system of protection for trans people but give no obvious way of establishing who has a GRC and who doesn’t, and would weaken the protections for homosexuals by interfering with their ability to have same sex spaces and associations.
I am very glad to be wrong. The implications for women of this continuing “legal fiction” are very serious. For example, lesbians would be compelled to associate with men who had a GRC. The European Court has made it clear that such men are under no compulsion to make any modifications to their bodies whatsoever, this being declared an “affront” to their human dignity.
No consideration of course appears ever to have been given to the “affront” to lesbians in being told they must welcome men into their spaces. Rather women have been berated and threatened for refusing to recognise the “female penis” which is asserted to be a wholly different thing to a “male penis”. As Cassie Brighter wrote in 2019 in an article called “What do we do about women with a penis?”:
A man’s penis swaggers and struts, conquers and acquires, penetrates. A trans gal’s genitals generally carry none of this energy. Speaking in generalities, a man’s sexuality is urgent and assertive, and can be invasive. A trans gal’s sexuality is docile, patient, hesitant, fragile.
The offensive absurdity of this take is immediately evident when we examine those cases of male rapists who suddenly and conveniently acquire a female gender identity post conviction.
The judgment is very good news but of course we are not out of the woods yet. Amnesty International, a once pre-eminent human rights organisation, intervened before the Supreme Court to argue for the erasure of the female sex as an organising category.
The most vulnerable to any continued promotion of “gender identity” as more important than sex will remain children. In March 2025 there was a very concerning High Court judgment O v P No 2 [2025] EWHC 718 (Fam)which reported that a father and his daughter had lied to the court about her medical transition; she was being provided with testosterone by Gender GP despite the father’s promise to steer clear of this organisation.
It is clear that there are a great many people in positions of power and influence who have dedicated their reputations and livelihoods — even their children — to the lie that gender identity is more important than sex or even that it subsumes sex entirely, and we must all be forced to agree on pain of ostracism and legal action.
The Supreme Court cautioned against treating this judgment as a “triumph”. On reflection, I agree. We should never have to ask the country’s highest court to confirm that sex is a matter of biology, not paper. Those who believe that sex is real and it matters should never have been subjected to a decade of threats and abuse or being stripped of their employment and reputations. No child should have been sold a lie that they can “change sex” at the cost of life long medication along with the loss of their fertility and adult sexual function. No individual should have had to take on the state in a court battle at immense financial and emotional cost, but many brave men and women did.
Now I hope we can rebuild. The Supreme Court judgment has confirmed that the Gender Recognition Act is absurd; attempts to apply it led to incoherence and confusion. It is time for its repeal. I will continue to assert that we can protect a belief in gender identity under the Equality Act and that along with same sex marriage, is sufficient to meet our obligations pursuant to the ECHR.
I do not think that people unhappy with their sex at birth should be abused or sacked for expressing that and wishing to present in a stereotypical masculine or feminine way. As someone with a physical disability I am well aware of the misery and frustration that accompanies unhappiness with your one and only body.
But my disability grounds me in reality. Regardless of how I feel about it, I will never be able-bodied and it is absurd to expend enormous amounts of energy into persuading others to say I am. The law says I must not be bullied or sacked just because I am disabled. That is my protection. To instead insist that the law attempt to promote an increasingly absurd legal fiction is no protection for any individual and it risks ultimately corroding the rule of law until there is nothing left.
I am very glad about the courage and tenacity of For Women Scotland which has led to the Supreme Court’s unanimous and unambiguous protection of the rule of law, the rights of women and the safety of children. I am very glad to be wrong in my fear that they would not. But the calamity of the last decade made my pessimism very reasonable. Let us hope this is the beginning of the end for this particular legal fiction and we can start to unpick the harm it has done. For many children of course, it is already too late.
