Amnesty joins landmark Supreme Court case on definition of woman

Despite the potential ramifications across the country, the UK Government has not requested to intervene. 

READ MORE:

• Supreme Court to hear appeal over definition of 'woman'
• For Women Scotland lose court appeal over definition of woman
• Swinney sparks new row over single-sex spaces

The case at the UK’s highest court is the latest development in a long-running legal battle over whether someone who is biologically male can legally be regarded as female for the purposes of the Equality Act.

For Women Scotland had initially challenged the SNP government over a new law designed to increase the number of women on public boards.

The legislation stated that anyone "living as a woman" would be eligible.

The group’s first action was successful, forcing the publication of new statutory guidelines which stated that transgender women should still be counted as female, so long as they held a Gender Recognition Certificate (GRC).

For Women Scotland challenged this, arguing that the Scottish Government had overstepped its powers by effectively redefining the meaning of female.

In December 2022, Lady Haldane disagreed. She said the Scottish Government had acted lawfully and that sex was “not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 [Gender Recognition] Act stating their acquired gender, and thus their sex".

An appeal by For Women Scotland was rejected by the Inner House last November prompting the Supreme Court bid.

Amnesty International UK said: “Amnesty International is intervening because we believe it is vital the Court is assisted by submissions setting out why legal gender recognition is a human rights issue and that trans people should not be expected to live without it.

"Amnesty International’s long-standing position on legal gender recognition is based on international human rights standards as well as substantive research and we are clear that human rights principles should provide the basis for the Supreme Court’s considerations in this case.”

CEO of Sex Matters, Maya Forstater, said the implications of the case were “much wider than the make-up of public boards in Scotland".

She added: “It is increasingly clear that unless there is clear recognition in law that being male or female is a material reality, and that sex-based rights are protected, women’s rights will continue to be whittled away and obscured by a cloud of uncertainty.

“We will be calling on the Supreme Court to focus on the protections for universal human rights that are at stake, and to recognise that while everyone has the right to express themselves, dress how they please and call themselves what they want, this does not override the right of women to privacy, dignity, fairness and autonomy.

"Protecting everyone’s rights requires laws and words that reflect reality."

Scottish Lesbians said lesbians were particularly impacted by the court’s decision.

Jenny Willmott, the director and co-founder of Scottish Lesbians said: “Like other minority groups, we deserve our own spaces in which we can socialise, discuss issues which impact us as lesbians, and support each other.

“Our needs go beyond safety and privacy; our whole freedom of association depends on being able to keep our spaces single-sex.

“The current legal situation means that our sexual orientation has effectively ceased to be protected under the Equality Act 2010”.

A spokesperson for the Equality and Human Rights Commission said: “We have been granted permission to intervene in the Supreme Court appeal of For Women Scotland v Scottish Ministers. 

“The EHRC works to promote and uphold the Equality Act, and the court’s determination of this issue is of significant interest to us.

“As Britain’s expert and impartial equality regulator, we believe our intervention in the forthcoming appeal will assist the Supreme Court in assessing the legal and practical implications of the case.”

A UK Government spokesperson said: "This case is between For Women Scotland and the Scottish Government. The UK Government has no involvement."

A bid to intervene by the Good Law Project was rejected. The group was representing Victoria McCloud, the UK’s first transgender judge and Prof Stephen Whittle, an academic who has been campaigning for transgender rights since the 1970s.

Ms McCloud said: "The Supreme Court is composed of very able and mature minds, aware of the law and of their duties.

"This case concerns a pure and straightforward matter of statutory reading and I have no doubt that the voices of the various campaign groups permitted to intervene, all but one of which are supportive of the Appellants' desire to create a new court-based definition of sex away from the statutes, will be accorded the weight and respect which they are due."

"The Equality and Human Rights Commission, whilst not a pressure group, has already expressed its views supporting the exclusion of trans people in many contexts.

"They do not and cannot speak equitably for the affected small group of people. However, I have every confidence the law plainly stated will prevail. All else is politics. I urge trans people to remain calm and stay safe."