Liam Hehir: partner at Freebairn and Hehir Lawyers on the UK Supreme Court issuing a legal definition of 'woman'

The UK Supreme Court has ruled that the term woman should be based on biological sex. 

The judges ruled that the 2010 Equality Act's sex based protections only apply to biological women. 

The decision has been hotly contested after the Scottish Government argued that transgender people with a gender recognition certificate were entitled to them. 

Liam Hehir, partner at Freebairn and Hehir Lawyers, says it's a significant ruling for the purposes of the Equality Act - but it has its' boundaries. 

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Episode Transcript

Speaker 1 (00:00):
Now over in the UK, the Supreme Court has ruled
on the definition of what a woman is and it
is ruled that a woman is someone who was born
as a biological woman and does not include trans women. Now,
the case came about because of a Scottish government plan
to include transgender women in quotas where account women on
boards and try to get to fifty percent. Liam here
is a lawyer and commentator and is with us. Now,

(00:20):
Hey Liam, Hello, Hey, how specific is this ruling?

Speaker 2 (00:24):
Is this?

Speaker 1 (00:24):
I mean, is this only about whether you can count
women and trans women on boards to make your quota
or is this also going to bleed into other things
like where the trans women can play sport and stuff.

Speaker 2 (00:35):
Well it's wider than that, but not as wide as
some people think either. So the legislation involved is the
Quality Act, a twenty ten human rights Act, and that
is the act of the UK Parliament, not the Scottish Parliament,
but applies to the whole of the UK, which is
the more the framework that kind of enables you to
have these quotas, right, So it applies to anything that

(00:57):
comes within the framework of the Quality Act. So that's
not just board quotas. That is other things, but it's
also not legal, it's not throughout the whole of the
legal system, right, so it's it's a significant ruling for
the purposes of that act, but it's got it's got
its boundaries.

Speaker 1 (01:13):
Would would the boundaries include where the trans women can place.

Speaker 2 (01:17):
Bored well like that? Yeah, there's certainly our regulations there
around sort of female only spaces, and that's certainly one
and certainly that's implicated in the Act, and that's that's
certainly yeah. So yes, the answer and answer is.

Speaker 1 (01:31):
Yes, okay, I mean all practicality, though you can't always
be sure, like how are they actually going to know
whether someone who says I'm a woman is actually a
biological woman or a trans woman?

Speaker 2 (01:44):
Well, you know, we've been grappling with that for a
long time. You know, the sex testing at the Olympics
has to be a big thing. You know, sometimes sometimes
dore I say, it's more obvious than than other cases.
But like everything, you know, like the law relies on
people being honest about how they're reporting on things, and
you know, people sometimes say that they are things that

(02:05):
they're not, and that's not uncommon either. So it's really
a question is are you're going to get caught out
and secularly, you're a law or a biding person who
obeys the law because it's the right thing to do.

Speaker 1 (02:16):
Yeah, Liam, I mean, undoubtedly this is going to be
picked up in the culture war and it's going to
become part of the ammunition. But in terms of what
happens in this country legally, will this affect us?

Speaker 2 (02:26):
No, not certainly, not directly. So we have a separate
legal system to the UK. But of course the UK
is a jurisdiction that's held in a lot of esteem here,
and our laws are you know that a lot of
them are modeled on UK laws, and for a long time,
you know, we were sort of indirectly hopped into the
UK legal system. So when a judge has to make
a decision about a question of New Zealand law, they're

(02:49):
entitled to look at something that's been decided in the
UK or Australia or Canada and say, look, this is
a similar case. The reasoning here was solid, So I'm
sort of persuaded by that reasoning and I'm going to
apply it here. So New Zealand courts could easily look
at the precedent that's been set in the UK and
apply it here too if they chose to. But we

(03:10):
do also have a different judicial culture, as we've seen
over the years New Zealand. New Zealand judges are quite
willing to try to update the law or to push
the boundaries of the law, and they're probably a little
bit less different to the meaning that Parliament intended than
the UK courts are. So I wouldn't be I wouldn't
be surprised if the New Zealand courts looked at it
and said, no, that's not the way we want to go.

Speaker 1 (03:31):
Interesting, Helly, Liam, thanks very much, really appreciate it. Lim
here lawyer and commentator. For more from Hither Duplessy Allen Drive,
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