Could For Women Scotland Impact How Australian Courts Understand What ‘Women’ Means?
07.07.2025
On 16 April 2025, in a unanimous decision, the UK Supreme Court found that, for the purposes of the Equality Act 2010 (UK), ‘sex’ means one’s biological sex at birth and ‘women’ means only people who were female sex at birth: For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16. The Court rejected the Scottish Ministers’ contention that transgender women with gender recognition certificates were ‘women’ for the purposes of the Equality Act (as well as the corollary, that ‘men’ included transgender men with such certificates). The effects of the Supreme Court’s decision will be deeply felt by transgender people in the UK, and the judgment will no doubt be subject to significant critical analysis.
This blog post concerns the question of whether the ruling in For Women Scotland has relevance in Australia, and particularly whether it might influence Australian courts in interpreting the Sex Discrimination Act 1984 (Cth)—the rough federal equivalent to the Equality Act. The issue is a live one. Last year, the construction of the words ‘woman’ and ‘sex’ were considered in the context of a gender identity discrimination claim brought by a transgender woman against an app marketed as ‘female-only’: Tickle v Giggle for Girls Pty Ltd (No 2) [2024] FCA 960 (Tickle v Giggle (No 2)). The Federal Court’s conclusion that ‘sex’ (in its ordinary meaning) was changeable, and thus that the complainant’s discrimination claim was successful, is currently under appeal. Similar questions of construction have also been raised in a decision by the Administrative Review Tribunal to uphold a decision by the Australian Human Rights Commission not to grant an exemption to a lesbian group, which sought to hold events that would exclude transgender women: Lesbian Action Group and Australian Human Rights Commission [2025] ARTA 34. That decision is currently the subject of a judicial review application in the Federal Court.
I argue that, although Australian courts are presently grappling with similar questions to those that arose in For Women Scotland, it is unlikely that the Supreme Court’s reasoning will hold much persuasive weight. I explain that the Court’s conclusion turned on the specific contextual clues in the Equality Act as to the meaning of the words ‘sex’, ‘man’ and ‘woman’ within that statute. The Equality Act, and the specific statutory framework by which transgender people in the UK can achieve legal recognition of their gender identities, differs in important respects from the Sex Discrimination Act and the approach Australian courts have taken to issues of transgender recognition.
I. The judgment in For Women Scotland
A. Background to the dispute
In the British system of devolved governments, the Scottish Parliament is prevented from legislating in certain areas that are reserved as the exclusive remit of the UK Parliament. ‘Equal opportunities’ is one of these areas: Scotland Act 1998 (UK) at s 29, Sch 5 s L2. Since May 2016, however, amendments to the Scotland Act have created exceptions that allow, in certain circumstances, the Scottish Parliament to legislate with respect to the inclusion of people with ‘protected characteristics’ in non-executive posts on boards of Scottish publish authorities. ‘Protected characteristics’ are those defined in the Equality Act, and include, among others, sex and gender reassignment.
In 2018, the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018 (Scot) (Gender Representation Act), setting out a ‘gender representation objective’ that 50% of non-executive members of the boards of public authorities be women: s 1(1). Decision-makers are required to have regard to that objective when making appointments, though the circumstances in which preference can be given to a female candidate are circumscribed: ss 3-4.
As enacted, the Gender Representation Act defined a ‘woman’ to include a person who has ‘the protected characteristic of gender reassignment (within the meaning of s 7 of the Equality Act 2010)’ if
they are living as a woman and are proposing to undergo, are in the process of undergoing, or have undergone ‘a process (or part of a process) for the purpose of becoming female’: s 2.
That definition was nullified in 2022, by a decision of the Court of Session: For Women Scotland Ltd v Lord Advocate [2022] CSIH 4; 2022 SC 150. The Court found that being a transgender woman was not a protected characteristic under the Equality Act, though ‘sex’ and ‘gender reassignment’ were protected characteristics. That is, in purporting to define a new, intersectional, category of protected characteristic, rather than relying on the protected characteristics defined in the Equality Act, Scottish Parliament had gone further than the exception in the Scotland Act described above. The definition of ‘woman’ in the Gender Representation Act was therefore beyond the Scottish Parliament’s competence.
The effect of the Court of Session’s judgment was that the Gender Representation Act was left with no express definition of ‘woman’.
In response to that judgment, the Scottish Ministers issued statutory guidance, as contemplated by s 7 of the Gender Representation Act. The guidance was that ‘woman’ under that Act had the same meaning as under the Equality Act, but made clear that the Ministers considered this included transgender women with gender recognition certificates. It is that guidance which was the subject of the judicial review application in For Women Scotland.
B. The construction dispute
The Scottish Ministers defended a construction of the Equality Act that meant, in short, sex is determined by your sex at birth, unless you held a gender recognition certificate, in which case it was the sex reflected by the certificate. The Supreme Court referred to this as the ‘certificated sex’ construction.
Gender recognition certificates are documents issued pursuant to the Gender Recognition Act 2004 (UK), which entitle transgender people who hold them to be treated in accordance with their gender identity under most legislation. The central question in For Women Scotland was how that Act interacted with the Equality Act. It is useful to briefly outline how each works.
1. Gender Recognition Act 2004
The Gender Recognition Act creates a process by which a transgender person may acquire a gender recognition certificate (these can be interim or full). Holding a full certificate means the gender reflected on their certificate (their ‘acquired gender’), will be their gender ‘for all purposes’, subject to any provision made by the Act or any other enactment: s 9(1), (3). Legislation can implicitly or explicitly exclude the effect of the Gender Recognition Act. In those cases, holding a certificate will have no effect for the purposes of that legislation.
Prior to the enactment of the Gender Recognition Act, English courts had considered that, on its ordinary meaning, ‘woman’ means only people who were female sex at birth. This meant, for instance, that (prior to the enactment of marriage equality) marriage between any two people who were male sex at birth would be void, even if one was a transgender woman who had undergone sex reassignment surgery. This remains the position in the UK if the effect of the Gender Recognition Act is excluded.
Only a minority of transgender people in the UK hold a gender recognition certificate, according to statistics tendered by an intervener in For Women Scotland: at [26]. That seems to reflect the difficult process involved in acquiring one.
2. Equality Act 2010
The Equality Act is the centrepiece of British anti-discrimination legislation. It is an amending and consolidating statute that subsumed the Sex Discrimination Act 1975 (UK) and the Equal Pay Act 1970 (UK), as well as the Disability Discrimination Act 1995 (UK), the Race Relations Act 1976 (UK) and other parts of legislation addressing different forms of discrimination.
In broad terms, the Equality Act identifies and defines ‘protected characteristics’ for which discrimination will be banned (at ss 4-12), including sex and gender reassignment. It then defines the meaning of direct and indirect discrimination (ss 13-19A), and proscribes those forms of discrimination on the grounds of protected characteristics in various contexts (hiring, employment, education etc), with a number of exceptions to those proscriptions (Pts 2-7).
Relevantly, s 11 provides that a reference to a person with a protected characteristic of ‘sex’ is a reference to a ‘man’ or a ‘woman’. Section 212(1) defines ‘man’ as a male of any age, and ‘woman’ as a female of any age. ‘Male’ and ‘female’ are not further defined in the Equality Act. Section 7 provides that a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning their sex by changing physiological or other attributes of sex. Holding a gender recognition certificate is not required to establish that a person has the protected characteristic of gender reassignment. The scope of that definition was not at issue in For Women Scotland.
Importantly, while the Equality Act was enacted after the Gender Recognition Act, it does not make express how or whether the latter affected the meaning of ‘sex’, ‘man’ or ‘woman’ in the former: at [158]. An argument that legislation enacted after the Gender Recognition Act could only reverse that position by express words was rejected by the Court: see [103].
C. The Supreme Court’s reasoning
1. The words ‘sex’, ‘man’ and ‘woman’ have consistent meanings throughout the Equality Act
The Court’s starting point was that it was likely that the words ‘sex’, ‘man’ and ‘woman’ took on a uniform meaning throughout the Equality Act, applying the presumption that a word has a consistent meaning throughout the same enactment: at [13], [176]. The bench noted that, while rebuttal of that presumption is possible, such cases will be ‘rare’ and it is ‘generally only done where it is clear that there is a genuine drafting error resulting in differential usage of the word or term in the text of the legislation’: at [176]. The bench considered the presumption that these words had a consistent meaning was further supported by the fact that they were each defined in the Act, and only once: at [175], [195].
The Court considered that, because the Equality Act imposed duties on a wide array of persons (employers, organisations and public authorities) with respect to people with protected characteristics, it was particularly important that those protected characteristics took on a clear and consistent meaning. The bench reasoned: ‘[s]ince sex as a protected characteristic is a ground for these legal rights, it must be possible for sex to be interpreted in a way that is predictable, workable and capable of being consistently understood and applied in practice by this wide range of duty bearers’: at [152].
2. References to women’s reproductive characteristics are irreconcilable with the Scottish Ministers’ construction
The Court then considered that ‘a strong indicator’ that those words had their ‘biological meaning’, rather than the Scottish Ministers’ certificated sex construction, was to be found in provisions that referred to women breastfeeding, being pregnant or giving birth: at [177], see also [178]-[179], [185]-[188]. For example, s 17(2) provides that: ‘A person (A) discriminates against a woman if A treats her unfavourably because of a pregnancy of hers.’ No references to, or protections of, people other than women breastfeeding, being pregnant or giving birth are found in the Act. The Court considered it would be strange, and therefore unlikely, that Parliament intended to exclude transgender men with gender recognition certificates from these protections: at [195]-[196].
3. The ‘certificated sex’ construction produces incoherencies in the application of the Equality Act
The balance of the Supreme Court’s reasons considered whether the rest of the Equality Act’s provisions better supported a construction based on sex at birth or, instead, the certificated sex construction advanced by the Scottish Ministers. This reasoning traversed the policy implications of each construction in various areas covered by the Act, such as single-sex spaces, sports and associations. Much of that reasoning turned on particular problems arising from the fact that, on the Scottish Ministers’ construction, men and women would be two heterogenous groups, namely:
Men, who would include cisgender men (that is, men who were male sex at birth and who do not have a gender recognition certificate), transgender men with certificates and transgender women without certificates; and
Women, who would include cisgender women (that is, women who were female sex at birth and who do not have a certificate), transgender women with certificates and transgender men without certificates.
Single-sex spaces offer one example of the Court’s approach. Schedule 3 to the Act sets out a number of exceptions to various proscriptions against discrimination. Paragraph 27 states that providing a single-sex service will not be prohibited sex discrimination if any one of a number of conditions are met, and the limited provision is a proportionate means of achieving a legitimate aim. Those conditions include where a service is likely to be used by two or more persons at the same time, in circumstances where a person might reasonably object to the presence of the opposite sex: Sch 3, para 27(6). The Court observed that ‘[w]hile many women in a female-only changing room … might reasonably object to the presence of biological males [people who are male sex at birth], it is difficult to see how the reasonableness of such an objection could be founded on possession or lack of a certificate’: at [217]. The Court noted that that was especially so where changing room users would not know which other users held certificates, where there was not necessarily a relationship between physical appearance or presentation and holding a certificate.
Similarly, the Court considered that requirements that certain public sector organisations collect data about women would be frustrated, as the group would include some transgender men (those without certificates), some transgender women (those with certificates), along with cis-gender women (who do not have certificates). The Court observed that: ‘[t]his is a confusing group to envisage because it cuts across and fragments both biological sex and gender reassignment into heterogenous groupings which may have little in common. Any data collection exercise will be distorted by the heterogenous nature of such a group’: at [239].
The thrust of the Court’s reasoning here turned on the policy implications of the certificated sex construction specifically, under which some transgender people would be treated in accordance with their gender identity (if they held certificates), while most would not (as they did not hold certificates). That is to say, the focus was not on the policy implications of treating transgender people in accordance with their gender identity in general, but the implications of doing so inconsistently, and only for a minority. The Court was at pains to note that its conclusions would not affect the position of the majority of those transgender people, who did not have certificates, who would be treated in accordance with their sex at birth whether or not the certificated sex construction was adopted: at [26], [263].
II. Differences in construing the Australian Sex Discrimination Act 1984
Like the UK, Australia has legislation which prohibits discrimination on the basis of sex and gender identity. At the federal level this is the Sex Discrimination Act 1984 (Cth). Unlike the UK, our federal anti-discrimination laws remain separate, subject-matter specific pieces of legislation. The meaning of the words ‘sex’, ‘man’ and ‘woman’ in the Sex Discrimination Act have recently been contested. As originally enacted, the Sex Discrimination Act included protections against direct and indirect discrimination on the basis of sex, marital status and pregnancy as well as prohibiting sexual harassment and victimisation in certain contexts. Those protections have expanded over time, including in 2013 when amendments introduced protections against discrimination on the basis of gender identity, intersex status and sexual orientation. Notably, the definition of ‘gender identity’ is broader than the Equality Act’s protected characteristic ‘gender reassignment’, capturing gender-related identity, appearance and mannerisms: s 4.
A. Australian courts have understood the ordinary meanings of ‘sex’, ‘man’ and ‘woman’ differently to British courts
It is useful to note at the outset that Australian and British courts have long diverged on the question of what the word ‘woman’ ordinarily means. In 1988, the NSW Court of Appeal found that a transgender woman who had undergone gender-affirming surgery was not a ‘male person’ for the purposes of a sex-specific criminal offence, declining to follow UK case law on this issue: R v Harris(1988) 17 NSWLR 158. In 1993, the Full Court of the Federal Court of Australia similarly found that transgender women who had undergone gender-affirming surgery could be entitled to social security benefits as wives: Secretary, Department of Social Security v SRA (1993) 43 FCR 299. The courts in both cases considered a person’s gender depended on their self-identification, societal perception and physical attributes: see Harris at 159, 161 (Street CJ), 191-2 (Mathews J); SRA at 325 (Lockhart J).
There remains an open question as to what, if any, medical treatment Australian courts would consider a transgender person must have undergone before being treated in accordance with their gender identity under the Sex Discrimination Act. In AB v Western Australia (2011) 244 CLR 390, the High Court considered two transgender men were entitled to receive a male gender recognition certificate under WA legislation, even though they retained some female reproductive organs. The decision concerned the operation of that specific legislation, and did not require the Court to consider what ‘man’ or ‘woman’ ordinarily meant. In any case, whether an Australian court would accept self-identification alone remains an unanswered question.
B. Australian courts would not be limited to considering a ‘certificated sex’ construction of the Sex Discrimination Act
In short, while the British position is that transgender women are never women within the ordinary meaning of that word, Australian courts have been ready to accept that they are, at least where they have undergone gender affirming surgery. The British position was only changed by the introduction of the Gender Recognition Act; the Australian courts in Harris and SRA did not require the introduction of a similar scheme to reach their conclusions. Indeed, both judgments predated the introduction of documents like gender recognition certificates or procedures to change sex markers on birth certificates in Australian States and Territories.
The legal context in which ‘sex’, ‘man’ and ‘woman’ are construed in the Sex Discrimination Act is therefore a markedly different one than the Supreme Court considered in For Women Scotland. Influenced by the precedents of Harris and SRA, Australian courts would take as their starting point that ‘men’ and ‘women’, on their ordinary meanings, can include transgender men and women respectively, even where they have not undergone any process to legally change their sex markers. That is, Australian courts would not be limited to considering a ‘certificated sex’ construction. The difficulties identified by the Supreme Court for that particular construction, which would require the inconsistent treatment of transgender people, would not be issues Australian courts would need to grapple with.
C. Australian courts may be more willing to find a variable construction of the word ‘woman’ in the Sex Discrimination Act than the Supreme Court
Other parts of the Supreme Court’s analysis might have a stronger bearing on the construction of the Sex Discrimination Act, however. Like the Equality Act, the Sex Discrimination Act only protects women from discrimination on the grounds of pregnancy, childbirth and breastfeeding. Similar provisions were significant for the Supreme Court’s conclusion in For Women Scotland, which considered it likely that ‘women’ in these provisions meant everyone with female reproductive characteristics, including those who held a male gender recognition certificate. Applying the presumption that statutory language has a consistent meaning throughout an enactment, these provisions provided a powerful reason for rejecting the certificated sex construction throughout the Equality Act.
One response might be that Australian courts have considered the presumption of consistency as weaker than the Supreme Court. The High Court has described the presumption as a ‘slight’ one which ‘readily yields to the context’ in which words appear (though the word discussed in that judgment was arguably less significant to the enactment it appeared within than the word ‘women’ is to theSex Discrimination Act). On that view, Australian courts might be content to find that ‘women’ has a variable meaning throughout the Sex Discrimination Act.
Such a construction might also be easier to find in the Sex Discrimination Act as, unlike in the Equality Act, those terms ‘sex’, ‘man’ and ‘woman’ are not defined: cf For Women Scotland at [175], [196]. Indeed, express definitions of ‘woman’ and ‘man’ were removed from the Sex Discrimination Act in 2013, at the same time as protections against gender identity discrimination were included. The Explanatory Memorandum for the amending Act explained the reason for the repeals was to ensure ‘man’ and ‘woman’ would not be construed ‘so narrowly as to exclude, for example, a transgender woman from accessing protections from discrimination on the basis of other attributes contained in the [Act]’.
III. Conclusion
The UK Supreme Court’s decision in For Women Scotland tells us little about the semantic meaning of the words ‘sex’, ‘man’ and ‘woman’. Instead, it turns on the specific framework of the UK’s Gender Recognition Act, and its impact on the Equality Act. That legal context differs in important ways from Australia’s, where courts have considered for some time that the ordinary meaning of the word ‘woman’ can include a transgender woman, without a statutory scheme needed to do so. Key strands of the Supreme Court’s reasoning therefore do not carry over neatly to construing the Sex Discrimination Act, if at all. In that context, the Supreme Court’s reasoning will prove only of limited guidance to Australian courts.
Nina Dillon Britton is an associate to a Judge of the Federal Court of Australia and a sessional academic at the University of Sydney, from which she also holds a law degree.
Suggested citation: Nina Dillon Britton, ‘Could For Women Scotland Impact How Australian Courts Understand What ‘Women’ Means?’ (7 July 2025) <https://www.auspublaw.org/blog/2025/07/could-for-women-scotland-impact-how-australian-courts-understand-what-women-means>