For Women?
- A Homa Trainee
- 12 hours ago
- 6 min read
Some reflections on the recent Supreme Court judgment
By Sophie B, a Year 4 HOMA Trainee
Last Wednesday, the Supreme Court handed down judgment in the case of For Women Scotland Ltd v The Scottish Ministers. Whilst not pretending to provide a comprehensive analysis, we thought it might be helpful to explain some elements of the judgment for HOMA trainees, and to offer some ideas as to what it might mean for the work that we do together.
The judgment concerns the definitions of sex (in particular, the terms ‘women’ and ‘men’) in the Equality Act 2010.
The Gender Recognition Act
To understand the case, it helps to know a bit of background. In 2004, the Gender Recognition Act (the GRA) was enacted. The GRA created a mechanism by which a person can change their gender in law. Such a person must go through a lengthy and difficult process. They may or may not decide to undergo medical treatment, including surgery. But they will need to demonstrate, in a number of different ways, that they have a settled intention to live permanently in their chosen gender. Having done this, they can obtain a Gender Recognition Certificate (GRC). The GRA says that a person with a GRC is recognised for ‘all purposes’ as being a person of their acquired gender.
Notice that even under the GRA, you can only be recognised as a man or a woman. There is no certificate available for a person who is ‘non-binary’, or otherwise has a different gender-identity.
The majority of people who identify as trans do not have a GRC. Only around 8,500 GRCs have ever been issued.
The Equality Act 2010 (EqA)
The EqA is a long, complicated statute. It sets out a number of ‘characteristics’ (like age, sex and disability) which require protection against discrimination, harassment and victimisation. It then formalises different ways of providing such protection. It acknowledges that sometimes, the assertion of the rights of one group of people may conflict with the rights of another group. It tries to find ways to enable the rights of different groups to be balanced against each-other.
Like all statutes, it is imperfect: it contains errors and fudges, and gives rise to unintended consequences.
Against that background, the position as previously understood was that where the EqA referred to ‘women’, it generally included those women who were ‘biologically’ male (that is, assigned male at birth) but had gone through the process of obtaining a Gender Recognition Certificate (a GRC). This is consistent with the GRA, as described above.
One effect of this was that where a ‘women-only’ service was established (for example, a women’s rape-crisis centre) the starting point would be that trans women could expect to be included within the service, provided that they had a GRC. Trans women without a GRC could not expect to be included.
There were two additional complexities. Firstly, it is not possible to tell whether a person has a GRC or not simply by looking at them. And whether a person has a GRC is a private, confidential piece of information. Accordingly, in practice, because of the difficulties inherent in finding out whether or not a person had a GRC, many service-providers took the view that the better, or safer course would be to allow all transwomen into women-only spaces, whether or not they had a GRC.
Secondly, if a service provider had good reasons for deciding that the service should be provided only to those women who are biologically female (assigned female at birth), it could decide to exclude ALL transwomen, whether or not they had a GRC. In other words, contrary to what some reports have suggested, it has always been possible to exclude trans people from the vast majority of single-sex spaces, provided that you have a clear rationale for doing so (or, in the language of the Act, that to do so was a ‘proportionate means’ of giving effect to a ‘legitimate aim’).
Now, there was another difficulty. You will notice that above I said that the EqA was regarded as generally including trans women with a GRC, when it talked about women. But some bits of the Act don’t work when you follow that logic: for example, the sections discussing maternity rights and breastfeeding. It makes little sense to include trans women with a GRC in the definition of women for the purposes of those bits of the Act, because trans women are not physically capable of giving birth or breastfeeding. Moreover, such a definition would serve to exclude from the protection of the Act trans men with a GRC, even if they have given birth. These were important conceptual difficulties with the EqA. However, the lower courts concluded that none of this caused too much bother in practice, and a ‘common-sense’ reading of these provisions could be maintained without doing violence to the rest of the Act.
The outcome was a careful fudge, which sought to balance the rights of (in particular) women assigned female at birth, with the rights of trans people. As is often the way with the law, the outcome did not please everybody. Particularly after 2018, it was the subject of the ire and condemnation of some feminist groups on the one hand, and of some trans activist groups on the other. But generally, it created a model by which the various rights at play could be carefully considered and balanced against each other.
The Judgment
The Supreme Court’s decision drives a coach-and-horses through this careful fudge. Its starting point is the understandable, but rather narrow and legalistic view that it is not acceptable for a term to have different meanings at different places within the same statute. Without wishing to diminish the complexity of the 88-page judgment, it is largely on this basis that it concludes that where the Act says ‘women’, it must always mean ‘biological women’.
This has various consequences, the full extent of which will take years (and a great deal of lawyers’ time) to establish. However, in the short term it is likely to mean that service providers will feel either emboldened or pressured to exclude trans people (with or without GRCs) from single sex services. The ensuing uncertainty, and consequent meaningful reduction in safety for trans people, is a real, devastating and immediate blow.
For HOMA
There are some other points which it is possible and important to make now.
At HOMA, we support the rights of all people. We are particularly mindful today of the anger, sadness and fear that trans people, their loved ones and allies are feeling. We stand in solidarity with you.
Secondly, we remind you that this is a judgment about the definition of terms for the purposes of the interpretation of the Equality Act 2010. However it may be portrayed by some individuals and sections of the media, it is not a judgment on what those terms means more generally – to us as individuals or as a society. These deeper meanings are not matters on which the courts can rule. They are for us to develop, together, as a community.
So, this judgment has little to do with the vital conversations in which we are engaged - within HOMA and as a society - on:
what we mean when we talk about ‘women’ and ‘men’; and
how a person chooses to define themselves, within or outside those categories.
At HOMA, we encourage trainees to continue those conversations, with each other and (where appropriate) with our clients. We encourage open, tender and respectful discussion, bearing in mind that different people will be beginning from different places, and bringing with them different life experiences.
We remember that as therapists our role is to help our clients to develop and define their own meanings, not to impose our own upon them.
We remember that one possible outcome of therapy is to enable clients to live in a way that is meaningful and authentic to them - whilst recognising the constraints and risks posed by the society within which they (and we) exist.
Sometimes, our conversations with each other and with our clients may also offer an opportunity to enable us and our clients to develop a deeper understanding of, and greater empathy for the points of view of others – including both those of trans people, and of women concerned to protect women-only spaces.
These conversations, these imperatives are rendered more, rather than less urgent, by this judgment.
An invitation from the Homa Team
Join us for an open conversation at Homa. All trainees, tutors and therapists are welcome
We will gather to listen to each other, to share our thoughts, to talk about how this judgement affects us as therapists and as people.
At this time of polarisation it is essential that we keep talking and listening. We invite you to join the conversation, whatever your perspective.
“The moment we stop listening to diverse opinions is also when we stop learning. Because the truth is we don’t learn much from sameness and monotony. We usually learn from differences.” Elif Shafak
Where: Homa Room 3
Date: 9 June 2025
Time: 5.30 - 7.30pm
RSVP: Please email hello@homa.london to let us know you will be coming.
Comments