For Women Scotland ruling and the impact on lesbians

Celebrating with fellow lesbians outside the Supreme Court

This blog looks at why the lesbian intervention was so important to the FWS ruling, and what it means for lesbians. The case was to decide whether or not men with a gender recognition certificate (GRC) should be considered “women” for purposes of the Equality Act 2010. The Act protects women because of our sex, and lesbians because of our sexual orientation. (It had been established in an earlier case that men without a GRC are not “women”.)

First though, a couple of my favourite quotes from the judgment, to give you a flavour of it.

The first came directly from our intervention, in which our wonderful KC, Karon Monaghan had argued that a lesbian is not attracted to male bodies. And added, for good measure, “Nor is she sexually attracted to certificates.”

The Supreme Court, in a phrase I bet it never thought it would use, said at para 204

“𝗣𝗲𝗼𝗽𝗹𝗲 𝗮𝗿𝗲 𝗻𝗼𝘁 𝘀𝗲𝘅𝘂𝗮𝗹𝗹𝘆 𝗼𝗿𝗶𝗲𝗻𝘁𝗲𝗱 𝘁𝗼𝘄𝗮𝗿𝗱𝘀 𝘁𝗵𝗼𝘀𝗲 𝗶𝗻 𝗽𝗼𝘀𝘀𝗲𝘀𝘀𝗶𝗼𝗻 𝗼𝗳 𝗮 𝗰𝗲𝗿𝘁𝗶𝗳𝗶𝗰𝗮𝘁𝗲.”

Second, we had pointed out that allowing men with a GRC to be counted as lesbians, meant (under the terms of the EA) that we could not have clubs or associations with more than 25 people in them. The Court’s response at para 207 is priceless.

“𝗜𝘁 𝗶𝘀 𝘂𝗻𝗽𝗿𝗶𝗻𝗰𝗶𝗽𝗹𝗲𝗱 𝘁𝗼 𝗮𝗻𝘀𝘄𝗲𝗿 𝘁𝗵𝗶𝘀 𝗽𝗿𝗼𝗯𝗹𝗲𝗺 𝗯𝘆 𝘀𝗮𝘆𝗶𝗻𝗴, 𝗮𝘀 𝘁𝗵𝗲 𝗦𝗰𝗼𝘁𝘁𝗶𝘀𝗵 𝗠𝗶𝗻𝗶𝘀𝘁𝗲𝗿𝘀 𝗱𝗼, that associations can restrict membership to less than 25 members so that they are not an “association” for the purposes of Part 7. It is also impractical.”

𝗪𝗵𝘆 𝘄𝗲𝗿𝗲 𝗹𝗲𝘀𝗯𝗶𝗮𝗻𝘀 𝗶𝗺𝗽𝗼𝗿𝘁𝗮𝗻𝘁?

In making their decision, the judges considered core provisions of the Equality Act. The first was whether the EA could be interpreted to mean that “sex” referred to certificated sex (ie, as conferred by a GRC) rather than biological sex. Answer: It can only mean biological sex.

The second concluded that the EA recognises people with the protected characteristics of sex and gender reassignment (including those with a GRC) as distinct groups, gives separate protection to each, and does not conflate gender reassignment and sex.

The third related to sexual orientation. (paras 204-9). The judges did not accept that a biological male could ever become a “same-sex attracted female”, which would have been the effect of saying that “sex” was certificated rather than biological. It’s worth quoting the entire paragraph. The judges completely accepted the argument we had made in the lesbian submission.

para.206 ... 𝘢 𝘱𝘦𝘳𝘴𝘰𝘯 𝘸𝘪𝘵𝘩 𝘴𝘢𝘮𝘦 𝘴𝘦𝘹 𝘰𝘳𝘪𝘦𝘯𝘵𝘢𝘵𝘪𝘰𝘯 𝘢𝘴 𝘢 𝘭𝘦𝘴𝘣𝘪𝘢𝘯 𝘮𝘶𝘴𝘵 𝘣𝘦 𝘢 𝘧𝘦𝘮𝘢𝘭𝘦 𝘸𝘩𝘰 𝘪𝘴 𝘴𝘦𝘹𝘶𝘢𝘭𝘭𝘺 𝘰𝘳𝘪𝘦𝘯𝘵𝘦𝘥 𝘵𝘰𝘸𝘢𝘳𝘥𝘴 (𝘰𝘳 𝘢𝘵𝘵𝘳𝘢𝘤𝘵𝘦𝘥 𝘵𝘰) 𝘧𝘦𝘮𝘢𝘭𝘦𝘴, 𝘢𝘯𝘥 𝘭𝘦𝘴𝘣𝘪𝘢𝘯𝘴 𝘢𝘴 𝘢 𝘨𝘳𝘰𝘶𝘱 𝘢𝘳𝘦 𝘧𝘦𝘮𝘢𝘭𝘦𝘴 𝘸𝘩𝘰 𝘴𝘩𝘢𝘳𝘦 𝘵𝘩𝘦 𝘤𝘩𝘢𝘳𝘢𝘤𝘵𝘦𝘳𝘪𝘴𝘵𝘪𝘤 𝘰𝘧 𝘣𝘦𝘪𝘯𝘨 𝘴𝘦𝘹𝘶𝘢𝘭𝘭𝘺 𝘰𝘳𝘪𝘦𝘯𝘵𝘦𝘥 𝘵𝘰 𝘧𝘦𝘮𝘢𝘭𝘦𝘴. 𝘛𝘩𝘪𝘴 𝘪𝘴 𝘤𝘰𝘩𝘦𝘳𝘦𝘯𝘵 𝘢𝘯𝘥 𝘶𝘯𝘥𝘦𝘳𝘴𝘵𝘢𝘯𝘥𝘢𝘣𝘭𝘦 𝘰𝘯 𝘢 𝘣𝘪𝘰𝘭𝘰𝘨𝘪𝘤𝘢𝘭 𝘶𝘯𝘥𝘦𝘳𝘴𝘵𝘢𝘯𝘥𝘪𝘯𝘨 𝘰𝘧 𝘴𝘦𝘹. 𝘖𝘯 𝘵𝘩𝘦 𝘰𝘵𝘩𝘦𝘳 𝘩𝘢𝘯𝘥, 𝘪𝘧 𝘢 𝘎𝘙𝘊 𝘶𝘯𝘥𝘦𝘳 𝘴𝘦𝘤𝘵𝘪𝘰𝘯 9(1) 𝘰𝘧 𝘵𝘩𝘦 𝘎𝘙𝘈 2004 𝘸𝘦𝘳𝘦 𝘵𝘰 𝘢𝘭𝘵𝘦𝘳 𝘵𝘩𝘦 𝘮𝘦𝘢𝘯𝘪𝘯𝘨 𝘰𝘧 𝘴𝘦𝘹 𝘶𝘯𝘥𝘦𝘳 𝘵𝘩𝘦 𝘌𝘈 2010, 𝘪𝘵 𝘸𝘰𝘶𝘭𝘥 𝘮𝘦𝘢𝘯 𝘵𝘩𝘢𝘵 𝘢 𝘵𝘳𝘢𝘯𝘴 𝘸𝘰𝘮𝘢𝘯 (𝘢 𝘣𝘪𝘰𝘭𝘰𝘨𝘪𝘤𝘢𝘭 𝘮𝘢𝘭𝘦) 𝘸𝘪𝘵𝘩 𝘢 𝘎𝘙𝘊 (𝘴𝘰 𝘭𝘦𝘨𝘢𝘭𝘭𝘺 𝘧𝘦𝘮𝘢𝘭𝘦) 𝘸𝘩𝘰 𝘳𝘦𝘮𝘢𝘪𝘯𝘴 𝘴𝘦𝘹𝘶𝘢𝘭𝘭𝘺 𝘰𝘳𝘪𝘦𝘯𝘵𝘦𝘥 𝘵𝘰 𝘰𝘵𝘩𝘦𝘳 𝘧𝘦𝘮𝘢𝘭𝘦𝘴 𝘸𝘰𝘶𝘭𝘥 𝘣𝘦𝘤𝘰𝘮𝘦 𝘢 𝘴𝘢𝘮𝘦 𝘴𝘦𝘹 𝘢𝘵𝘵𝘳𝘢𝘤𝘵𝘦𝘥 𝘧𝘦𝘮𝘢𝘭𝘦, 𝘪𝘯 𝘰𝘵𝘩𝘦𝘳 𝘸𝘰𝘳𝘥𝘴, 𝘢 𝘭𝘦𝘴𝘣𝘪𝘢𝘯. 𝘛𝘩𝘦 𝘤𝘰𝘯𝘤𝘦𝘱𝘵 𝘰𝘧 𝘴𝘦𝘹𝘶𝘢𝘭 𝘰𝘳𝘪𝘦𝘯𝘵𝘢𝘵𝘪𝘰𝘯 𝘵𝘰𝘸𝘢𝘳𝘥𝘴 𝘮𝘦𝘮𝘣𝘦𝘳𝘴 𝘰𝘧 𝘢 𝘱𝘢𝘳𝘵𝘪𝘤𝘶𝘭𝘢𝘳 𝘴𝘦𝘹 𝘪𝘯 𝘴𝘦𝘤𝘵𝘪𝘰𝘯 12 𝘪𝘴 𝘳𝘦𝘯𝘥𝘦𝘳𝘦𝘥 𝘮𝘦𝘢𝘯𝘪𝘯𝘨𝘭𝘦𝘴𝘴. 𝘐𝘵 𝘸𝘰𝘶𝘭𝘥 𝘢𝘭𝘴𝘰 𝘢𝘧𝘧𝘦𝘤𝘵 𝘵𝘩𝘦 𝘤𝘰𝘮𝘱𝘰𝘴𝘪𝘵𝘪𝘰𝘯 𝘰𝘧 𝘵𝘩𝘦 𝘨𝘳𝘰𝘶𝘱𝘴 𝘸𝘩𝘰 𝘴𝘩𝘢𝘳𝘦 𝘵𝘩𝘦 𝘴𝘢𝘮𝘦 𝘴𝘦𝘹𝘶𝘢𝘭 𝘰𝘳𝘪𝘦𝘯𝘵𝘢𝘵𝘪𝘰𝘯 (𝘣𝘦𝘤𝘢𝘶𝘴𝘦 𝘢 𝘵𝘳𝘢𝘯𝘴 𝘸𝘰𝘮𝘢𝘯 𝘸𝘪𝘵𝘩 𝘢 𝘎𝘙𝘊 𝘢𝘯𝘥 𝘢 𝘴𝘦𝘹𝘶𝘢𝘭 𝘰𝘳𝘪𝘦𝘯𝘵𝘢𝘵𝘪𝘰𝘯 𝘵𝘰𝘸𝘢𝘳𝘥𝘴 𝘸𝘰𝘮𝘦𝘯 𝘸𝘰𝘶𝘭𝘥 𝘧𝘢𝘭𝘭 𝘵𝘰 𝘣𝘦 𝘵𝘳𝘦𝘢𝘵𝘦𝘥 𝘢𝘴 𝘢 𝘭𝘦𝘴𝘣𝘪𝘢𝘯) 𝘪𝘯 𝘢 𝘴𝘪𝘮𝘪𝘭𝘢𝘳 𝘸𝘢𝘺 𝘢𝘴 𝘥𝘦𝘴𝘤𝘳𝘪𝘣𝘦𝘥 𝘢𝘣𝘰𝘷𝘦 𝘪𝘯 𝘳𝘦𝘭𝘢𝘵𝘪𝘰𝘯 𝘵𝘰 𝘸𝘰𝘮𝘦𝘯 𝘢𝘯𝘥 𝘨𝘪𝘳𝘭𝘴.

So allowing men with a GRC to count as lesbians would make homosexuality meaningless!

The judgment was also concerned that using certificated sex would allow males into lesbian associations.

The lesbian argument was not the only reason, of course, that the judges found in favour of FWS, but it was a major contributory factor, and I think it’s fair to say, made the case unloseable.

𝗪𝗵𝗮𝘁 𝗱𝗼𝗲𝘀 𝗶𝘁 𝗺𝗲𝗮𝗻 𝗳𝗼𝗿 𝗹𝗲𝘀𝗯𝗶𝗮𝗻𝘀?

A crucial part of the judgment is that having a GRC does not give men any more rights under the EA than men who self-ID. If the judgment had gone the other way, we would have been legally obliged to allow men with a GRC into our spaces. But, as we’re not allowed to ask for a GRC, in practice we would have had to admit all self-IDing men.

The most important points for lesbians are:

- men cannot be lesbians

- men have no right to enter women’s or lesbian space

- having a GRC does not give a man access to women’s or lesbian spaces (including changing rooms, toilets, hospital wards, prisons etc)

- no men can apply for jobs or other posts designated as reserved for women

- lesbians have the right to meet without men

For lesbians this means we are allowed to form lesbian-only clubs and associations (such as Lesbian Persistence) and maintain our boundaries. Lesbian-only websites or pages can exclude all men, with or without a GRC.

So you can organise your lesbian discos, book clubs, walking groups or sewing circles, and advertise them openly without the fear of being forced to allow some men to enter.

NB This does not stop a service or a dating site from including men who masquerade as “lesbians”, but it should describe itself differently, to make clear that it’s a mixed provision.

𝗗𝗮𝘁𝗮 𝗰𝗼𝗹𝗹𝗲𝗰𝘁𝗶𝗼𝗻

The judgment also demolishes the idea that data collection should be done on the basis of certificated rather than biological sex. It says that doing so would “impede clarity of analysis of the different needs of groups with different protected characteristics”. Although it doesn’t mention sexual orientation in this section, it would also mean that lesbian or gay categories should only relate to lesbian women or gay men, and says that data collection about “trans people” should not include people who are not trans. Which would effectively remove the categories of “LGBT+”

You can watch the hearing, or the judgment, or read the case here

Sally Wainwright 2025