John Swinney has sparked a new row over the definition of woman after he seemingly contradicted the Scottish Government's position on single-sex spaces. 

During a campaign phone-in on Tuesday morning, the First Minister called on organisations to abide by the Equality Act, intimating that it allowed for services to exclude people whose gender identity was different to their biological sex. 

However, last year, the Court of Session backed the Scottish Government in a court case over the representation of women on boards, by ruling that the legal definition of “woman” is "not limited to biological or birth sex".

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Effectively, this means that currently a trans woman with a gender recognition certificate (GRC) should be recognised as a woman in law and should, by default, have access to single-sex spaces.

Campaign group For Women Scotland is appealing the Court of Session judgement, and the case is due to be heard in the Supreme Court later this year.

Mr Swinney told BBC Scotland's Morning Show: “On the question of single-sex spaces, all the provision for that is provided within the equality legislation of 2010. I want to make sure that the appropriate provisions are put in place to do so,” he said.

The First Minister added: “In relation to the safety of women and girls, which is the responsibility of government, the legislation is very clear that single-sex spaces are permissible to enable the protection of women and girls to be applied and I want to make sure there's no doubt or dubiety about that question.”

A caller pointed to Edinburgh Rape Crisis Centre, where a recent employment tribunal revealed cases where a survivor of sexual assault was “excluded” from services because she only wanted to take part in group discussions with only biological women.

She also pointed to a more recent example of a staff member suing NHS Fife after she was suspended from her job for complaining about having to share a changing room with a trans woman.

Mr Swinney told the caller: “I understand the significance and the seriousness of these issues. And I've seen some information on the two cases that you have referred to.

“My understanding on the Edinburgh rape crisis centre issue is that they are essentially reviewing their whole handling of that issue to determine the appropriate handling of that.

“I'm less familiar with the Fife health board issue, although I've heard some of the details of that.

“But fundamentally, I'll come back to my point… that the legislation does provide for the protection of single-sex spaces, but the crucial point is that it has to be applied and enforced.”

He added: “For the avoidance of doubt, my view is that this is the law, it should be enforced. So I think the protection that [the caller] is seeking is there, it has to be enforced and applied.

"And if there are cases where that is not the case, then obviously, organisations need to respond to that and to set out how they're going to go about doing that, which is what I think is happening in the cases [ERCC and NHS Fife] that have been raised."

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Dr Michael Foran, a lecturer in public law at the University of Glasgow, and the author of Sex Gender Identity and the Law, told The Herald: “This is very strange to hear. 

“The Scottish Government has introduced guidance and argued in court that sex in the Equality Act means certificated sex - biological sex unless someone is in possession of a GRC.” 

On his blog, he added: "This statement is in direct contradiction with what the Scottish Government has repeatedly argued in court and will continue to argue before the Supreme Court in November."

The academic continued: "I think it is clear that the caller understood single-sex spaces such as changing rooms and rape crisis centres to be services separated on the basis of biological sex.

"A charitable reading of Swinney’s response is that he operated on that presumption too.

"If that’s the case, then the Scottish Government has done a great deal of work to confuse providers of these services about whether or not they can lawfully run a single-sex service that operates on the basis of sex, not gender identity or certificate status."

Meanwhile, in an interview with The Times, Sir Keir Starner was asked if biological males with gender recognition certificates have the right to enter women-only spaces.

He replied: “No. They don’t have that right. They shouldn’t.

“That’s why I’ve always said biological women’s spaces need to be protected.”

During the early stages of the election campaign, the UK Government said they would update the Equality Act to make it clear that sex refers to biological sex.