Defining moment: How For Women Scotland's Supreme Court fight consumed Scottish politics

The verdict of the Supreme Court was unanimous and clear: the Scottish Government had lost.

Speaking in London, his words beamed out across the internet, judge Lord Hodge said the SNP government’s rules on what makes a woman were wrong, contravening the terms of the UK-wide Equality Act and creating “incoherence”.

‘Woman’ and ‘sex’ in the legislation refer to biology, not social gender, he said. The decision to class trans women with a gender recognition certificate (GRC) as women under rules to improve female representation on public boards not only posed a risk to equality for the sexes, but would create a hierarchy within the trans community itself, providing more rights to those with a GRC – currently a minority within a minority – than those without. If that stood, it would threaten the provision of single-sex services, stop lesbian groups from being able to exclude males, and create ongoing confusion.

Watching from a room off the Royal Mile, the supporters of For Women Scotland (FWS), the complainers in the case, cheered so loudly Hodge’s next words could not be heard. “We did it,” said FWS founder Trina Budge, who was gifted a bouquet of blooms in suffrage movement colours. “Let’s celebrate.” A rendition of Auld Lang Syne, replete with feminist lyrics, followed as broadcasters filmed on.

As the venue erupted, so did social media. “The Supreme Court being able to rule that sex is binary is absolutely insane,” wrote one commenter. “I cannot overstate how disappointed I am in the UK Supreme Court ruling. I actually feel sick that such prejudiced beings get to feel any kind of victory today,” said another.

The judgment of the Supreme Court on the case of For Women Scotland versus Scottish Ministers had been awaited by some with an intensity akin to an election result, with briefings, op-eds and explainers issued in the lead-up by players on both sides and none. Indeed, it could be argued that political careers, political capital, were much at stake in a case that was, at its origins, considered by many as of marginal interest – a fight over a fringe issue affecting few in our society, or a threat raised by bigots pursuing a divisive agenda. Anyone of the opinion that the case didn’t really matter must be now disabused of that notion, given the clamour with which it has been met.

The UK Government’s response was speedy. “We have always supported the protection of single-sex spaces based on biological sex,” a spokesperson said. “This ruling brings clarity and confidence for women and service providers such as hospitals, refuges, and sports clubs. Single-sex spaces are protected in law and will always be protected by this government.”

The Scottish Government’s took 90 minutes longer. “The Scottish Government accepts today's Supreme Court judgment,” it said. “The Supreme Court rightly counselled against reading this judgment as a triumph of one or more groups in our society at the expense of another. It is not.

“The ruling gives clarity between two pieces of relevant legislation passed at Westminster. We will now engage on the implications of the ruling. Protecting the rights of all will underpin our actions. The Scottish Government acted in good faith in our interpretation of both the Gender Recognition Act 2004 and the Equality Act 2010; and our approach was guided by the published guidance of the Equality and Human Rights Commission (EHRC).”

That UK-wide body had advised the Scottish Government and a spokesperson for ministers said it must now look at its own position. The EHRC issued revised guidance to the UK government only last week which it is understood would protect single-sex spaces. This is still to be considered by parliament. EHRC head Kishwer Falkner said the body would “be working at pace to incorporate the implications of this judgment into the updated code for public bodies”.

This is not the first bloody nose the Supreme Court has given Scottish ministers, having previously ruled that bills concerning local government and the incorporation of the UN Convention of the Rights of the Child were outwith the parliament’s powers. In a separate case, it also clarified that Holyrood cannot hold another independence referendum without explicit Westminster consent. This case continues that unsuccessful run for ministers. “What does that tell you?” one SNP insider said. “It will always find against us.”

John Swinney took a more conciliatory tone, saying the court had “brought clarity to two pieces of legislation that the Scottish Government was navigating its way through”, and that his government would “engage constructively” on the matter.

Coming one year before the next Scottish Parliament elections, it gives ministers time to get their house in order and find new solutions to one aspect of the thorniest social problem of our time – a problem so thorny, in fact, that it has created marked tears in our politics.

It is often referred to as the ‘trans debate’, but this term is often considered offensive by members of the trans community, which itself is multi-faceted. And it is also an oversimplification because, as the FWS Scotland case reveals so clearly, it is also a women’s debate. It is a debate about language, about equity, about common understanding and service delivery. It has been raging for years, and it shows no signs of abating.

“Polling shows public opinion is relatively clear on this,” says pollster Mark Diffley. “People are largely opposed to it. What a court says is not going to fundamentally change that.”

And while the issue is considered one of identity or fairness to some, to the court it was one of statutory interpretation: what do ‘man’, ‘woman’ and ‘sex’ really mean in the Equality Act? FWS challenged that in relation to government guidance issued over its Gender Representation on Public Boards (Scotland) Act of 2018.

The legislation created targets to increase the proportion of women on the panels, and when the original guidance included those who had undergone or planned to undergo gender reassignment in that category, as well as anyone deemed to be ‘living as a woman’, FWS launched what would be a successful challenge. The 2020 case saw that statutory definition ruled unlawful and outwith devolved competence. When new guidance was issued stating that a person with a GRC recognising their gender as female should be included as a woman, FWS instructed lawyers again. Groups including Sex Matters and Scottish Lesbians intervened in support of FWS, while human rights charity Amnesty presented a counter case.

After five months of inquiry and consideration, judges ruled that “interpreting sex as ‘certificated sex’ would cut across the definitions of man and woman” in the Equality Act and “create heterogeneous groupings”. They said “confusion and impracticability” had arisen over single-sex spaces and groups, as well as women’s sport, the armed forces and the public sector equality duty.

The written judgment by lords Hodge, Reed and Lloyd-Jones and ladies Rose and Simler runs to almost 90 pages and, in his oral statement, Hodge cautioned against interpreting the case as a win of one social group over another. But the charity Scottish Trans said it was “shocked and disappointed” and criticised the court for having “refused to hear from a single trans person in a case that is all about trans people”.

“The judgment seems to have totally missed what matters to trans people – that we are able to live our lives, and be recognised, in line with who we truly are,” said manager Vic Valentine. “Trans people need to be able to recover on hospital wards, use toilets, go swimming and access services just like anyone else. This judgment seems to suggest that there will be times where trans people can be excluded from both men’s and women’s spaces and services. It is hard to understand where we would then be expected to go – or how this decision is compatible with a society that is fair and equal for everybody.”

Hodge said the court is “well aware of the strength of feeling on all sides which lies behind this appeal”. “On the one hand, women, who make up one half of our population, have campaigned for over 150 years to have equality with men and to combat discrimination based on their sex. That work still continues,” he said. “On the other hand, a vulnerable and often harassed minority, the trans community, struggle against discrimination and prejudice as they seek to live their lives with dignity.

“Lesbian women, who have historically suffered marginalisation because of their sexual orientation, have entered the debate.

“It is not the task of this court to meet policy on how the interests of these groups should be protected. Our role is to ascertain the meaning of the legislation which parliament has enacted.”

Coming during parliamentary recess, there was no immediate response from parliament. But Social Security Secretary Shirley-Anne Somerville will address the chamber next week and Alba’s Ash Regan – the only MSP present at the FWS event in Edinburgh – says she expects change. “The world has shifted now,” she told Holyrood. “It was a unanimous verdict; the Scottish Government really need to consider their position. It has been unable to answer the question ‘what is a woman?’ Maybe today we can move on from that.”

Diffley suggests most parties want that too, but because the issue is so difficult for them to talk about. Labour, the Lib Dems and the Greens all backed the SNP-led gender recognition reforms that were blocked under Section 35 of the Scotland Act, for reasons including a clash with the terms of the Equality Act. Labour’s Anas Sarwar has now done something of a U-turn on that, saying his party wouldn’t have backed it if they’d known then what they know now – rationale that was met with disbelief by those who wondered why the party hadn’t been paying attention to the issues pointed out to MSPs of all parties at the time.

So, while a Scottish Government loss would ordinarily be manna for rivals, this isn’t so straight-forward.

“What the political parties are most keen to do on this issue is not talk about it at all, probably with the exception of the Tories and Reform because they can play it as a kind of wedge issue,” Diffley says. Polling shows a clear split in the positions of SNP members of such reforms, he says, making John Swinney’s job in responding to the court ruling particularly difficult.

Meanwhile, the ongoing tribunal between nurse Sandie Peggie and NHS Fife is yet to conclude and that result – which will determine whether the nurse was harassed by the health board over her resistance to the use of female changing facilities by a trans woman doctor – will open up the issue all over again. Cases like Peggie’s have “personalised” aspects of the debate, Diffley says.

And indeed, the FWS case threw a spotlight on questions which could be considered as philosophical as they are political – if for the fact that, in 2025, they are also deeply practical considerations. Should a pregnant trans man with a GRC be entitled to maternity protections? Do the particulars of abortion legislation apply to trans men with GRCs? Is the holding of a GRC directly comparable to adoption? KCs for the Scottish Government argued maybe to the first of those and yes to the last, with the second poser raised by Aidan O’Neill KC, acting for FWS. “Provisions relating to sex discrimination, and especially those relating to pregnancy and maternity and to protection from risks specifically affecting women, can only be interpreted as referring to biological sex relating to pregnancy and maternity,” said Hodge.

The Scottish Government has no recourse to appeal this time, and as it was not argued on a human rights basis the case cannot be referred to Strasbourg. Any further action would have to be raised on a different basis, which is not completely outside the realms of possibility.

“Nothing would surprise me,” said one FWS supporter before the verdict.