The UK’s most senior judges are about to deliver a judgement on a landmark case setting out the definition of a woman.
The very definition has caused friction across the political sphere, with the country’s most esteemed and expensive lawyers debating the topic.
In November, acting on behalf of feminist campaign group For Women Scotland (FWS), Aiden O’Neill KC told the Supreme Court justices – Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Rose and Lady Simler – “sex just means sex”.
The 2010 Equality Act’s language was plain, he argued, urging the highest court in the land to recognise the “facts of biological reality rather than fantasies of legal fiction”.
But representing Scottish ministers, Ruth Crawford KC told the court the Gender Recognition Act 2004 was clear that a gender recognition certificate (GRC) changes sex “for all purposes”.
That argument is that someone who was born a man, but has gone through the process of obtaining a GRC, was entitled to legal protections “just as much as others enjoy those protections who are recorded as a woman at birth”.
The ruling is imminent. With the justices’ setting out their position on Wednesday, April 16.
Regardless of the results, the ramifications are significant.
It aimed to ensure that at least 50% of the non-executive members of the Scottish public boards were women.
Then equalities secretary Angela Constance argued it would “shatter the glass ceiling once and for all”.
Consultations led to multiple calls to make the legislation inclusive of transgender people, with former Labour MSP Mary Fee submitting amendment on this.
She argued the legislation should include a person “who has the protected characteristic of gender reassignment”.
The Scottish Government accepted those amendments and the Bill became law.
The Act stated that “woman” would include those who have “taken the decision to undergo a process for the purpose of becoming female” though this would “not require the person to dress, look or behave in any particular way”.
It continued: “It would be expected there would be evidence that the person was living continuously as a woman – always using female pronouns, using a female name on official documents, describing themselves and being described by others using female language.”
The legislation would “not require an appointing person to ask a candidate to prove whether they meet the definition of woman in the Act”.
Gender critics took the case to the Court of Session in Edinburgh arguing the legislation was beyond Holyrood’s competence and infringed on reserved equality laws.
FWS argued that it would effectively allow anyone who identified as a woman to be treated as such.
The group argued the definition “enables a situation whereby someone who is legally male, who fits the criteria for ‘woman’ can legitimately be considered for the Board, but someone who is legally female does not”.
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That is, a trans-man - someone born female but who identifies as male - would not be covered by the law.
FWS took the matter to the Court of Session, arguing Scottish ministers had acted beyond their competence.
This official challenge was lost but on appeal the inner Court of Session ruled the Scottish Government had exceeded its powers.
That led ministers to issue new statutory guidance, which said the definition of “woman” was the same as that in the Equality Act and that a person with a GRC confirming their female gender has the sex of a woman.
It went back to court, at the same time the Gender Recognition Reform (GRR) Bill was making its way through Holyrood, the legislation attempting to simplify the process for a trans person to obtain a GRC.
While that legislation passed in Holyrood, it was blocked by the UK Government’s then Tory Scottish Secretary Alister Jack. He argued it would have a “serious adverse impact” on the operation of UK-wide equality law.
Right before the GRR Bill was passed in Holyrood, Lady Haldane ruled in December 2022 that sex was “not limited to biological or birth sex”, adding it included those in possession of a GRC.
FWS appealed but the Court of Session upheld that initial ruling.
In November 2023, Lord Justice Clerk Lady Dorrian, Lord Malcolm and Lord Pentland concluded that a person with a GRC would have both the protected characteristics of gender reassignment and sex.
Once again, For Women Scotland appealed, taking the case to the Supreme Court.
Their argument was that "sex" in the Equality Act refers solely to biological sex determined at birth and that "woman" should be understood accordingly as "a female of any age".
Responding, the Scottish Government argued that the GRA 2004 creates a general interpretative principle that the "acquired gender" recognised by a full GRC becomes the person's sex "for all purposes.”
Therefore the legislation created “a fundamental right and a human right to be recognised in one’s acquired gender”.
Ms Crawford was asked about the possibility of someone who was born female but then went through the process to obtain a GRC granting them all the legal rights of male.
This “deep political water” was, she said, for parliament to resolve, not the court.
The repercussions will be huge, regardless of what the justices decide.
If Lady Haldane’s decision is upheld then it could mean single sex exemptions no longer apply – that could mean the UK-wise Equality Act could be completely altered.
Sir Keir Starmer has dodged this question in the past, but this ruling could make the issue inescapable.
That is only heightened with the intervention of the European Human Rights Commission.
Experts there produced a 310-page update to its statutory guidance, essentially arguing the 2010 Equality Act could be inoperable because of how public bodies interpret self-ID policies.
If the Supreme Court rules in favour of FWS, anchoring sex to biology, there would be significant legal fallout.
Trans individuals with GRCs would still be protected under "gender reassignment" but not under their acquired sex.
There is, it seems, no way for the UK or Scottish government to avoid the "deep political water".
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