April 17, 2025 • 12 mins
This week, the UK Supreme Court handed down a landmark decision, finding that a woman is defined by biological sex under the law.
It means transgender women with legal documentation reflecting their transition are not entitled to the same sex discrimination protections as “biological women”.
Today, we’ll be breaking down the decision, how it came to be, and what the response to it has been.
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Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
Already and this is the Daily This is the Dahlias.
Oh now it makes sense. Good morning and welcome to
the Daily OS. It's Friday, the eighteenth of April.
Speaker 2 (00:18):
I'm Lucy Tassel, I'm Zara Seidler.
Speaker 1 (00:20):
This week the UK Supreme Court handed down a landmark
decision finding that a woman is defined by biological sex
under the law. It means transgender women with legal documentation
reflecting their transition. I'm not entitled to the same sex
discrimination protections as biological women. Today we'll be breaking down
the decision, how it came to be and what the
(00:42):
response has been.
Speaker 3 (00:47):
Lucy, the legal definition of a woman is a fairly
large concept for the courts to tackle. How does this
sort of question even come before the UK Supreme Court?
Speaker 2 (00:59):
Can you take back to the beginning of this story.
Speaker 1 (01:01):
Yeah, this has been going on for quite a few
years now. It started in Scotland in twenty eighteen, and
the fact that that's where it began is important. Go
back to that later. But basically, in twenty eighteen, the
Scottish Parliament pastor law mandating that boards of public organizations
be fifty percent women fifty percent men, and the law
(01:23):
defined trans women who had or were planning to have
gender affirming surgeries as women under this law, meaning they
could contribute to the fifty percent. Now in the UK,
since two thousand and four, there's a legal process that
trans people can follow to be recognized as their This
is UK government language affirmed gender. It's called a gender
(01:44):
Recognition Certificate. According to the UK Government, a person must
meet several requirements. This includes being over eighteen, having lived
as their affirmed gender for a certain period of time,
and you have to have approval from two doctors and
then an expert panel reviews any applications that come through.
Scotland's parliament said transwomen who have this certificate should count
(02:07):
towards the public quota that they were instituting.
Speaker 3 (02:10):
Okay, so it's twenty eighteen. The Scottish Parliament has passed
this law trying to entrench gender quotas for public boards
that includes transwomen who can form part of that fifty percent. Obviously,
though that's not where this story ends. What happened in
response to that law being legislated.
Speaker 1 (02:27):
In response, a group formed called four Women's Scotland hereafter FWS.
They believe and I'm just quoting from their website here,
that there are only two sexes, that a person's sex
is not a choice nor can it be changed. FWS
on these grounds brought a case against the Scottish government.
They argued that defining a woman was actually beyond the
(02:50):
powers of the Scottish government because it's devolved from the UK.
That's the official word.
Speaker 2 (02:57):
What is that official word actually mean? Devolved?
Speaker 1 (03:00):
So basically Scotland is a country, but it's also part
of the UK, so England, Scotland, Wales, Northern Ireland. As
a result, Scotland has two governments. It has the Scottish Government.
It has responsibilities like law and order, education, healthcare and
social services. The leader of the Scottish Government is called
(03:20):
the First Minister. Then the UK Government, which is over
the top. Its responsibilities include immigration, energy, employment, in human rights,
which is important to this. The Scottish Government is below
the UK government, so its decisions can be superseded, which
has happened. Actually TDA has covered this a couple of
times in the last couple of years. So the UK
(03:42):
overruled a previous attempt by Scotland to make it easier
for people to apply for that gender recognition certificate that
I mentioned earlier. That's actually it's related, but it is
entirely separate. So the UK overruled that decision. Another important
decision was in twenty forty Scotland held a referendum on
becoming independent from the UK. It failed, and then in
(04:06):
twenty twenty two a UK court found Scotland's government needs
to ask for UK parliament permission if it ever wants
to hold another referendum.
Speaker 3 (04:15):
So there are some examples there of that relationship between
Scotland and the UK and the separate governance there. And
so going back to the case about the public boards,
you're saying that this group sues on the ground that
Scotland isn't allowed to do what it's done there in
legislating those quotas and including trans women in them.
Speaker 1 (04:37):
Yes, they basically were arguing you can't take steps to
define a woman in this way. You don't have the
power to do that.
Speaker 2 (04:45):
That's with the UK.
Speaker 1 (04:46):
Yeah, that's with the UK. So in twenty twenty FWS
actually won a court challenge on those grounds. In response,
the Scottish government issued a new set of rules. It's said, basically,
our law is aligned with a UK wide Equality Act
which came into effect in twenty ten. They basically said, no,
we do have the power to do this, and here's
(05:08):
the overall law that applies to the whole United Kingdom
that proves that we were correct in doing so. It
said the Equality Act defined a woman as quote a
female of any age, and that a person with a
GRC saying that they are female is counted under this definition.
That was their rationale. Then, in response to that guidance,
(05:29):
FWS launched another legal challenge, which as the one we're
talking about today. It argued the Act actually defines women
by quote biological sex. That's their rationale and that's the
case we're talking about today.
Speaker 3 (05:41):
Okay, So the case escalates to the UK's highest court,
the Supreme Court.
Speaker 2 (05:46):
What do we know about the trial?
Speaker 1 (05:47):
What's interesting to me about the trial is that this
is being argued between FWS and the Scottish government about
the place of trans women under the law. So trans women,
despite being the subject of this case, are not like
a represented party, if that makes sense. So a UK
legal ngo called the Good Law Project analyzed the trial.
(06:11):
They said no trans people gave evidence. Victoria MacLeod is
the UK's first trans female judge, and she often comments
on legal matters. She told The Guardian she tried to
intervene in the case but was denied, and she actually
says she's left the UK because she doesn't believe it's
safe for her to live there anymore. Ultimately, the case
(06:32):
was decided by a panel of five Supreme Court justices
and they unanimously agreed in fws's case earlier this week.
Speaker 3 (06:41):
Okay, so ultimately they found that a woman is defined
by biological sex under the law under.
Speaker 2 (06:47):
The Equalities Act.
Speaker 3 (06:48):
Can you talk to me about the reasoning that these
judges put behind their judgment.
Speaker 1 (06:53):
A core part of their judgment was that they said
the twenty ten Act that this was centering on the
interpretation of this Act. They said, this Act is actually
based on a previous act, the nineteen seventy five Sex
Discrimination Act, and they said, quote there is no doubt
that Parliament intended the words man and woman to refer
to biological sex at that time when that original Act
(07:15):
was written in nineteen seventy five. And they said, this
new Act is based on the old Act. It's all
of a piece. They also found that extending these sex
discrimination protections to people with GRCs would lead.
Speaker 2 (07:28):
To confusion GRCs. There is that certificate, the certificate.
Speaker 1 (07:32):
And they raised concerns around single sex spaces which quote
require a biological interpretation of sex in order to function coherently.
So that's things like single sex bathrooms, changing rooms, sport
armed forces. The judges did note that trans people are
still protected from discrimination under the Equality Act on the
(07:55):
ground of gender reassignment and indirect discrimination on the basis
of sex. They said, quote, a trans woman can claim
sex discrimination because she is perceived to be a woman.
Talking there about indirect discrimination. I will be very interested
to see any future tests of that precedent.
Speaker 3 (08:14):
Okay, So this is a fairly landmark decision, this sort
of definition so fraud. It's been spoken about in the
media and political circles for so long and here we
have this judgment. What has the response to the verdict
actually been.
Speaker 1 (08:30):
So FWS was obviously very excited. There's a number of
other groups like them in the UK. FWS said that
they were quote absolutely jubilant, and certainly the response from
those other groups has also been very positive. There's a
major supporter of FWS, both publicly and literally financially. In
(08:50):
Harry Potter, author JK Rowling, who made a series of
posts on x celebrating the outcome.
Speaker 2 (08:56):
So she was financially backing the group.
Speaker 1 (08:59):
She contributed money towards their legal fees a couple of
years ago, and she has been very openly in favor
of this stance and in favor of this group, she said, quote.
The fact that so many UK trans activists are shrieking
about injustice says it all. You never had the rights
you claim you've lost. You had demands, so fairly strong
(09:20):
words from her there. The Scottish government said they accepted
the ruling and would engage on its implications, basically figuring
out what that means for that vitation.
Speaker 3 (09:29):
Yeah.
Speaker 1 (09:29):
Yeah. Trans advocacy groups have spoken out against the ruling,
as you would expect. One group, Transactual said quote, the
intent seems clear to exclude trans people wholesale from participating
in UK society. Today we are feeling very excluded and
a local organization, Scottish Trans, told people not to panic
(09:52):
and that it would carefully read the judgment to understand
what its impact will be day to day.
Speaker 3 (09:58):
LiTi, just to end with, I do want to understand
whether a judgment like this could have any implications domestically
here in Australia. Obviously very separate jurisdictions, but Australia is
often both culturally and legally influenced by decisions in the UK.
Speaker 2 (10:14):
Do you think we could see a similar move here.
Speaker 1 (10:16):
It's entirely possible. I won't say it's not possible. However,
I will say certainly, at the risk of seeming shortsighted,
I think it is currently unlikely. There's a few reasons why.
According to a global survey by IPSOS in twenty twenty three,
more than half of Australians believe trans people should use
single sex facilities that correspond to their lived gender, and
(10:41):
four in five believe trans people should be protected from discrimination,
which is actually above the global average, so Australia is
perhaps more accepting on this one framework. According to this survey,
there have been demonstrations from groups like FWS in Australia
is a presence. There was one in Melbourne a couple
(11:03):
of years ago. In terms of the literal legal precedent
around transwomen and sex discrimination, there is a past case
that can illustrate this. Last year, the Federal Court found
in favor of a transwoman. Her name is Roxanne Tickle.
She argued she had been discriminated against when she was
kicked off a women only app by the app's founder,
(11:25):
who has repeatedly and publicly denied Tickle is a woman. Ultimately, also,
in terms of the actual fundamentals of where this case
started from, which in twenty eighteen we're talking about the
gender balanced boards issue, Australia has targets already in place
for government boards and overall were actually beating them. In
twenty twenty three, women held more than half of total
(11:48):
positions on Australian government boards. So even the impetus for
this specific case, there's not necessarily a need for that
in Australia because we're already achieving those goals. So possible,
not probable, is my feeling.
Speaker 2 (12:02):
Well, Lucy, thank you for breaking down that story.
Speaker 3 (12:04):
It's certainly a really big one and so many moving
parts there that will affect so many people. So appreciate
you explaining all of that, and thank you for joining
us for another week of the Daily OS. We hope
you enjoy your long weekend. We will be back on
Monday morning to accompany you on that public holiday with
a bit of news, but until then, have a great
(12:25):
weekend with your families.
Speaker 1 (12:30):
My name is Lily Madden and I'm a proud Arunda
Bunjelung Kalkotin woman from Gadighl country. The Daily oz acknowledges
that this podcast is recorded on the lands of the
Gadighl people and pays respect to all Aboriginal and Torres
Strait Island and nations. We pay our respects to the
first peoples of these countries, both past and present.
Already and this is the Daily This is the Dahlias.
Oh now it makes sense. Good morning and welcome to
the Daily OS. It's Friday, the eighteenth of April.
Speaker 2 (00:18):
I'm Lucy Tassel, I'm Zara Seidler.
Speaker 1 (00:20):
This week the UK Supreme Court handed down a landmark
decision finding that a woman is defined by biological sex
under the law. It means transgender women with legal documentation
reflecting their transition. I'm not entitled to the same sex
discrimination protections as biological women. Today we'll be breaking down
the decision, how it came to be and what the
(00:42):
response has been.
Speaker 3 (00:47):
Lucy, the legal definition of a woman is a fairly
large concept for the courts to tackle. How does this
sort of question even come before the UK Supreme Court?
Speaker 2 (00:59):
Can you take back to the beginning of this story.
Speaker 1 (01:01):
Yeah, this has been going on for quite a few
years now. It started in Scotland in twenty eighteen, and
the fact that that's where it began is important. Go
back to that later. But basically, in twenty eighteen, the
Scottish Parliament pastor law mandating that boards of public organizations
be fifty percent women fifty percent men, and the law
(01:23):
defined trans women who had or were planning to have
gender affirming surgeries as women under this law, meaning they
could contribute to the fifty percent. Now in the UK,
since two thousand and four, there's a legal process that
trans people can follow to be recognized as their This
is UK government language affirmed gender. It's called a gender
(01:44):
Recognition Certificate. According to the UK Government, a person must
meet several requirements. This includes being over eighteen, having lived
as their affirmed gender for a certain period of time,
and you have to have approval from two doctors and
then an expert panel reviews any applications that come through.
Scotland's parliament said transwomen who have this certificate should count
(02:07):
towards the public quota that they were instituting.
Speaker 3 (02:10):
Okay, so it's twenty eighteen. The Scottish Parliament has passed
this law trying to entrench gender quotas for public boards
that includes transwomen who can form part of that fifty percent. Obviously,
though that's not where this story ends. What happened in
response to that law being legislated.
Speaker 1 (02:27):
In response, a group formed called four Women's Scotland hereafter FWS.
They believe and I'm just quoting from their website here,
that there are only two sexes, that a person's sex
is not a choice nor can it be changed. FWS
on these grounds brought a case against the Scottish government.
They argued that defining a woman was actually beyond the
(02:50):
powers of the Scottish government because it's devolved from the UK.
That's the official word.
Speaker 2 (02:57):
What is that official word actually mean? Devolved?
Speaker 1 (03:00):
So basically Scotland is a country, but it's also part
of the UK, so England, Scotland, Wales, Northern Ireland. As
a result, Scotland has two governments. It has the Scottish Government.
It has responsibilities like law and order, education, healthcare and
social services. The leader of the Scottish Government is called
(03:20):
the First Minister. Then the UK Government, which is over
the top. Its responsibilities include immigration, energy, employment, in human rights,
which is important to this. The Scottish Government is below
the UK government, so its decisions can be superseded, which
has happened. Actually TDA has covered this a couple of
times in the last couple of years. So the UK
(03:42):
overruled a previous attempt by Scotland to make it easier
for people to apply for that gender recognition certificate that
I mentioned earlier. That's actually it's related, but it is
entirely separate. So the UK overruled that decision. Another important
decision was in twenty forty Scotland held a referendum on
becoming independent from the UK. It failed, and then in
(04:06):
twenty twenty two a UK court found Scotland's government needs
to ask for UK parliament permission if it ever wants
to hold another referendum.
Speaker 3 (04:15):
So there are some examples there of that relationship between
Scotland and the UK and the separate governance there. And
so going back to the case about the public boards,
you're saying that this group sues on the ground that
Scotland isn't allowed to do what it's done there in
legislating those quotas and including trans women in them.
Speaker 1 (04:37):
Yes, they basically were arguing you can't take steps to
define a woman in this way. You don't have the
power to do that.
Speaker 2 (04:45):
That's with the UK.
Speaker 1 (04:46):
Yeah, that's with the UK. So in twenty twenty FWS
actually won a court challenge on those grounds. In response,
the Scottish government issued a new set of rules. It's said, basically,
our law is aligned with a UK wide Equality Act
which came into effect in twenty ten. They basically said, no,
we do have the power to do this, and here's
(05:08):
the overall law that applies to the whole United Kingdom
that proves that we were correct in doing so. It
said the Equality Act defined a woman as quote a
female of any age, and that a person with a
GRC saying that they are female is counted under this definition.
That was their rationale. Then, in response to that guidance,
(05:29):
FWS launched another legal challenge, which as the one we're
talking about today. It argued the Act actually defines women
by quote biological sex. That's their rationale and that's the
case we're talking about today.
Speaker 3 (05:41):
Okay, So the case escalates to the UK's highest court,
the Supreme Court.
Speaker 2 (05:46):
What do we know about the trial?
Speaker 1 (05:47):
What's interesting to me about the trial is that this
is being argued between FWS and the Scottish government about
the place of trans women under the law. So trans women,
despite being the subject of this case, are not like
a represented party, if that makes sense. So a UK
legal ngo called the Good Law Project analyzed the trial.
(06:11):
They said no trans people gave evidence. Victoria MacLeod is
the UK's first trans female judge, and she often comments
on legal matters. She told The Guardian she tried to
intervene in the case but was denied, and she actually
says she's left the UK because she doesn't believe it's
safe for her to live there anymore. Ultimately, the case
(06:32):
was decided by a panel of five Supreme Court justices
and they unanimously agreed in fws's case earlier this week.
Speaker 3 (06:41):
Okay, so ultimately they found that a woman is defined
by biological sex under the law under.
Speaker 2 (06:47):
The Equalities Act.
Speaker 3 (06:48):
Can you talk to me about the reasoning that these
judges put behind their judgment.
Speaker 1 (06:53):
A core part of their judgment was that they said
the twenty ten Act that this was centering on the
interpretation of this Act. They said, this Act is actually
based on a previous act, the nineteen seventy five Sex
Discrimination Act, and they said, quote there is no doubt
that Parliament intended the words man and woman to refer
to biological sex at that time when that original Act
(07:15):
was written in nineteen seventy five. And they said, this
new Act is based on the old Act. It's all
of a piece. They also found that extending these sex
discrimination protections to people with GRCs would lead.
Speaker 2 (07:28):
To confusion GRCs. There is that certificate, the certificate.
Speaker 1 (07:32):
And they raised concerns around single sex spaces which quote
require a biological interpretation of sex in order to function coherently.
So that's things like single sex bathrooms, changing rooms, sport
armed forces. The judges did note that trans people are
still protected from discrimination under the Equality Act on the
(07:55):
ground of gender reassignment and indirect discrimination on the basis
of sex. They said, quote, a trans woman can claim
sex discrimination because she is perceived to be a woman.
Talking there about indirect discrimination. I will be very interested
to see any future tests of that precedent.
Speaker 3 (08:14):
Okay, So this is a fairly landmark decision, this sort
of definition so fraud. It's been spoken about in the
media and political circles for so long and here we
have this judgment. What has the response to the verdict
actually been.
Speaker 1 (08:30):
So FWS was obviously very excited. There's a number of
other groups like them in the UK. FWS said that
they were quote absolutely jubilant, and certainly the response from
those other groups has also been very positive. There's a
major supporter of FWS, both publicly and literally financially. In
(08:50):
Harry Potter, author JK Rowling, who made a series of
posts on x celebrating the outcome.
Speaker 2 (08:56):
So she was financially backing the group.
Speaker 1 (08:59):
She contributed money towards their legal fees a couple of
years ago, and she has been very openly in favor
of this stance and in favor of this group, she said, quote.
The fact that so many UK trans activists are shrieking
about injustice says it all. You never had the rights
you claim you've lost. You had demands, so fairly strong
(09:20):
words from her there. The Scottish government said they accepted
the ruling and would engage on its implications, basically figuring
out what that means for that vitation.
Speaker 3 (09:29):
Yeah.
Speaker 1 (09:29):
Yeah. Trans advocacy groups have spoken out against the ruling,
as you would expect. One group, Transactual said quote, the
intent seems clear to exclude trans people wholesale from participating
in UK society. Today we are feeling very excluded and
a local organization, Scottish Trans, told people not to panic
(09:52):
and that it would carefully read the judgment to understand
what its impact will be day to day.
Speaker 3 (09:58):
LiTi, just to end with, I do want to understand
whether a judgment like this could have any implications domestically
here in Australia. Obviously very separate jurisdictions, but Australia is
often both culturally and legally influenced by decisions in the UK.
Speaker 2 (10:14):
Do you think we could see a similar move here.
Speaker 1 (10:16):
It's entirely possible. I won't say it's not possible. However,
I will say certainly, at the risk of seeming shortsighted,
I think it is currently unlikely. There's a few reasons why.
According to a global survey by IPSOS in twenty twenty three,
more than half of Australians believe trans people should use
single sex facilities that correspond to their lived gender, and
(10:41):
four in five believe trans people should be protected from discrimination,
which is actually above the global average, so Australia is
perhaps more accepting on this one framework. According to this survey,
there have been demonstrations from groups like FWS in Australia
is a presence. There was one in Melbourne a couple
(11:03):
of years ago. In terms of the literal legal precedent
around transwomen and sex discrimination, there is a past case
that can illustrate this. Last year, the Federal Court found
in favor of a transwoman. Her name is Roxanne Tickle.
She argued she had been discriminated against when she was
kicked off a women only app by the app's founder,
(11:25):
who has repeatedly and publicly denied Tickle is a woman. Ultimately, also,
in terms of the actual fundamentals of where this case
started from, which in twenty eighteen we're talking about the
gender balanced boards issue, Australia has targets already in place
for government boards and overall were actually beating them. In
twenty twenty three, women held more than half of total
(11:48):
positions on Australian government boards. So even the impetus for
this specific case, there's not necessarily a need for that
in Australia because we're already achieving those goals. So possible,
not probable, is my feeling.
Speaker 2 (12:02):
Well, Lucy, thank you for breaking down that story.
Speaker 3 (12:04):
It's certainly a really big one and so many moving
parts there that will affect so many people. So appreciate
you explaining all of that, and thank you for joining
us for another week of the Daily OS. We hope
you enjoy your long weekend. We will be back on
Monday morning to accompany you on that public holiday with
a bit of news, but until then, have a great
(12:25):
weekend with your families.
Speaker 1 (12:30):
My name is Lily Madden and I'm a proud Arunda
Bunjelung Kalkotin woman from Gadighl country. The Daily oz acknowledges
that this podcast is recorded on the lands of the
Gadighl people and pays respect to all Aboriginal and Torres
Strait Island and nations. We pay our respects to the
first peoples of these countries, both past and present.
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