Supreme Court Judgement - For Women Scotland vs Scottish Ministers: Social Justice Secretary Statement - 22 April 2025

Thank you,  Presiding Officer for this opportunity to update Parliament on the Supreme Court’s decision, to uphold For Women Scotland’s appeal.

The Scottish Government does, of course, accept the judgment of the Supreme Court. It is a significant legal ruling, and it is right that we take time to consider it carefully.

Before I turn to the details of the judgment it is important to recognise the tone and the temperature of the surrounding debate concerning real individuals in our community, in our workplaces and in our families that has often been deeply distressing to them.

It should be clear to all of us in this chamber regardless of our view on any of these matters included in the judgment last Wednesday that it has had a very significant impact on many people. 

This judgment, as the Supreme Court made clear, must not be used as a licence for division and hostility. 

The pursuit of equality for women, and for trans people, is our collective responsibility. All of us in this chamber must ensure that the rights and dignity of all are upheld  - and our debate must be rooted in empathy, compassion and equality.

Indeed, in his delivery of the judgment, Lord Hodge giving the Opinion of the Court said that the Court counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another.  It is not.

Turning to the judgment Presiding Officer. This case centres on the Guidance issued for the Gender Representation on Public Bodies (Scotland) Act 2018 and the meaning of “woman” set out in that Guidance, which is the same meaning as under the Equality Act 2010.

The Scottish Government successfully defended our Guidance twice - in both the Outer and Inner House. However, the Supreme Court is the final decision-maker on such legal issues, and it has delivered a carefully considered judgment. The definition of woman in the guidance was the definition in the Equality Act.

And as we were guided on the meaning of that definition by guidance from the Equalities and Human Rights Commission, the EHRC, which is the enforcement body for the 2010 Act.

As we heard in last week’s judgment, issues arose from a tension between two pieces of Westminster legislation and how they interact. The question of compatibility between the Gender Recognition Act of 2004 and the Equality Act 2010 was central to the Court’s ruling.

In paragraph 8, the Supreme Court said that the central question in relation to the appeal was whether the 2010 Act treats a trans woman with a Gender Recognition Certificate  - a GRC -  as a woman, for all purposes within the scope of its provisions. Or whether when the 2010 Act refers to a “woman” and “sex” it is referring to a biological woman and biological sex.

The Supreme Court concluded that the meaning of the terms “sex,” “man” and “woman” in the 2010 Act is biological.

The Supreme Court notes within its judgment, that in the statutory guidance to the Gender Representation on Public Boards (Scotland) Act 2018, that Scottish Ministers reflected the stance of the EHRC that a person issued with a full GRC in the acquired gender of female is a “woman” within the meaning of the Equality Act.

It concluded that the Scottish Government guidance on the Gender Representation on Public Boards (Scotland) Act 2018 is incorrect in relation to its definition of “woman”. 

The judgment also makes it very clear that trans people continue to have protection and rights.  

As the Press Summary issued by the Supreme Court on the judgment said:

“trans people are protected from discrimination on the ground of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex. In the light of case law interpreting the relevant provisions, a trans woman can claim sex discrimination because she is perceived to be a woman.”

 We fully accept the Supreme Court’s judgment and have begun to analyse the impact.  

We are amending the guidance on the public boards legislation to take account of the ruling.

There has been commentary as to the implications of this ruling in respect of the Gender Recognition Reform (Scotland) Bill. 

This Bill was prevented from proceeding to Royal Assent by an Order made by the then Secretary of State.  Following the judgment last week, the Scottish Government has no plans to bring it back.

While the UK Government has indicated they intend to bring forward proposals to reform the Gender Recognition Act 2004, we have not yet seen any firm proposals. This government stands ready to engage constructively on any plans following last week’s judgment.

Gender recognition is a fundamental piece of equality legislation, and let me be very clear, this government does not support the repeal of the 2004 Act.  

Presiding Officer,

Immediately following last week’s judgment, I wrote to UK Government counterparts seeking an urgent meeting.

This reflects that the judgment does, of course, have implications across the UK: given that the 2004 Act extends across the UK; and the 2010 Act extends to England, Wales, and Scotland.

And I am awaiting a response to that letter.

I, along with the Cabinet Secretary for Health and Social Care, will also be meeting with the EHRC on Thursday and will seek an update on their plans for renewed guidance by the summer.

The government calls for that process to be inclusive and ensuring engagement with all of those on whom it will impact.

This guidance is also important for the Governments across Scotland, England & Wales as well as public authorities, and the private sector and voluntary sector organisations following the Supreme Court judgment.

All organisations must comply with all relevant legislation and guidance from the EHRC will be key in this process.

I wanted to reach out to stakeholders as soon as possible after the judgment to give the government’s initial response and to offer to meet again to discuss the Scottish Government’s ongoing work.   

Stakeholders that represent trans and non-binary people are reporting real anxiety from their networks and service users and concerns about their daily lives.

It is significant that the Supreme Court stated in their judgement that the rights of the trans community are enshrined in law.

I want to reassure our trans community that you are valued, and the Scottish Government is fully committed to protecting everyone’s rights – and that includes your community.

I have also had the opportunity to speak to the Women’s Rights Network. I was grateful for their time and hearing directly from them their views on both the judgment and on its implementation.

As I have done today, I restated categorically that the Scottish Government fully accepts the judgment of the Supreme Court and is now working on next steps. Given the length of the judgment, it is important to work through this in detail and I offered to meet again once that work has been undertaken.

An invite was also sent to For Women Scotland which they have chosen not to accept but fed back that they want us to move on with implementation. I can assure them and this chamber that this work is progressing.

Presiding Officer, I spoke earlier about the principles of empathy, compassion and equality.  And on these principles, I firmly believe that the role of this Parliament is to provide leadership – ensuring equality, inclusion and human rights are not optional values; they are the foundation of a fair society and at the heart of our public services. 

This government and, I hope all in our Scottish Parliament, will continue to advance equality and protect the rights of women, girls, and the LGBTQI+ community.

Our work reflects a clear and enduring belief that everyone in Scotland should be free to live their lives with dignity, safety, and respect.

We will continue to work closely with LGBT+ organisations to ensure their communities are empowered and human rights protected.

Our Parliament has a strong track-record advancing the rights of LGBT+ people and I am sure we will all continue to ensure further progress is made.

We engage proudly and visibly with the LGBT+ communities during Pride season and LGBT History Month — and we must do so throughout the year. 

And the Scottish Government will continue to accelerate equality through our National Advisory Council on Women and Girls -  driving real  change in Scotland by challenging systemic inequality, and ensuring that the voices of women and girls are not only heard but acted upon.

And indeed, this Parliament has also been at the forefront of many changes including legislation on domestic abuse and on victims of sexual violence. That’s why this government has, for example progressed our world leading Equally Safe Strategy – tackling violence against women and girls.

But we all recognise I am sure that there remains so much more to do to tackle these challenges, barriers and dangers that women and girls face.

To that end I announced at the end of February that the Scottish Government will work in partnership with the National Advisory Council, as they have requested, to develop an Equality Strategy for Women and Girls before the end of this Parliament. These actions demonstrate that equality is not just a principle — it is something we are committed to making real in people’s lives, every day.

In conclusion Presiding Officer, I’d like to return to where I began, with the people we all serve.

The issues that surround the Supreme Court case are challenging and will need careful consideration so that the public sector can ensure the dignity and safety of everyone that uses their services.

It is vital that the EHRC now issue clear, practical guidance in response to that judgment. 

This judgment has confirmed the definition of “woman” under the Equality Act. There have been very challenging arguments over the past 5 years, and I hope that we can move to a point where we again can focus on progressing equality for the people of Scotland.

The pursuit of equality is not a contest between communities. It is a collective effort to build a fairer Scotland for all and the foundation on which this Parliament was built.