What is at stake in the Supreme Court gender case?

Judges at the Supreme Court are considering how exactly women are defined in law, in a case which could have an impact on people’s rights across the country.

The case started out with a group of campaigning Scottish women challenging a bill passed at the Scottish Parliament.

But it has ended with the highest court in the land considering the proper interpretation of the Equality Act, a totemic anti-discrimination law which applies in Scotland, England and Wales.

The judges will spend some time considering their verdict – but what could it mean for trans people, women, other protected groups, and indeed politicians?

The issue

The question the court is considering is whether a person holding a gender recognition certificate which declares them to be a woman “for all purposes”, in the words of the Gender Recognition Act, should be included under the female sex for the purposes of the Equality Act.

The answer is unlikely to be a brief “yes” or “no”.

The five judges have heard hours of arguments and have hundreds of pages of written material to pore over.

The lawyers for each side set out a whole thicket of potential consequences and the court has been tasked with settling ambiguities in a range of areas.

The law can be a complex tapestry, and it is entirely possible that groups could lose protections under one statute, but would be able to fall back on others.

It’s also possible that judges decide that definitions vary according to context in different parts of the law.

But they will have to be mindful to the fact that these rules have to be put into practice every day in society by non-lawyers – bosses in the workplace, hospital administrators, people running refuges, secretaries of clubs, and more – so it would be best to be clear about what is expected of them.

It would be foolish to predict how the judges will line up on any particular area, but here are some of the contested areas as suggested by the arguments we have heard in court.

Individual rights

There are two broad sides to the case.

For Women Scotland, who say sex is an immutable biological fact; and the Scottish government, who say it can be changed with a gender recognition certificate.

Trans people see this case as challenging their very identity and fear that if the ruling goes to For Women Scotland, it would undermine their rights in their acquired gender.

They would still be entitled to protections under the Equality Act’s characteristic of “gender reassignment”, but not against discrimination on the grounds of sex.

So the ruling could determine whether a trans person would be able to pursue, for example, an equal pay claim as a woman.

For all the talk of the definition of “woman”, there was also a lot of focus on female-to-male transitioners – and in fairness there are just as many of them as there are male-to-female, according to census data.

Both sides in court seemed to agree that someone registered female at birth, who acquired a gender recognition certificate as a man, would lose their sex-based rights and access to spaces reserved for women.

While the government said this was in line with their choice, Aidan O’Neill – the KC representing For Women Scotland – argued that it amounted to protections being stripped from natal women, which he said was to “capitulate to the patriarchy”.

There was also a lot of focus on the idea of a “pregnant man” – the possibility of someone who gets a gender recognition certificate stating they are a man nonetheless becoming pregnant.

Would they still be entitled to pregnancy and maternity benefits enshrined in equalities law? Could they insist on being registered as the “father” of the child?

This is an extremely niche example which might ultimately only affect one person in tens of millions, at the most. Mr O’Neill had to produce case law which was “unfortunately only in French”.

But the judges in London may still have to come up with an answer to the question.