LBORI on the UK Supreme Court Ruling
For Women Scotland Ltd v. The Scottish Ministers
Implications for lesbians globally
Introduction
On April 16, 2025 the Supreme Court of the United Kingdom handed down a landmark ruling, to decide whether men having a “gender recognition certificate” (GRC) are women for purposes of the UK’s Equality Act of 2010. In effect, the Court was asked to define “woman” and “sex” for purposes of the Equality Act. The Equality Act protects a number of categories of people on the basis of historic oppression, including age, race, sex, “gender reassignment,” disability, religion or belief, sexual orientation, marriage or civil partnership, and pregnancy or maternity.
The ruling was anxiously awaited by lesbians everywhere, not just in the UK. The stakes were high for all women, but especially for lesbians: Would lesbians be allowed to gather publicly – as lesbians, excluding all men – for social purposes and for political campaign purposes? Where public boards designate a certain number of seats for women, or for lesbians, would a man having a GRC qualify?
When the ruling was made, it was greeted by lesbians worldwide with relief and joy. In short, the Court ruled that the Equality Act has always defined woman and sex as biological, and not to be conflated with “certificated” sex. It thereby excludes all men from the category of woman and of lesbian. The Court defined lesbian as “a female who is sexually oriented towards (or attracted to) females.” That is, men cannot be lesbians and have no right to enter lesbian spaces, with or without a GRC. It was spectacularly good news for UK lesbians, who have experienced discrimination in public places such as pubs for being perceived as “TERFs,” that is, for excluding males from their public gatherings. That discrimination would now be unlawful.
UK lesbians deserve particular credit for their work that led to this major legal victory, including the groups Scottish Lesbians and Lesbian Persistence.
The Court did state that under the Equality Act “transgender” people will continue to be protected from discrimination – without defining “transgender people” – based on either their status as “trans” or someone’s perception of them as female; so obviously there is still some political campaigning that needs to be done in this area in the UK. There is good reason for courts to avoid defining “transgender people,” because even those who call themselves “transgender” are unable or unwilling to produce a coherent definition. Nevertheless, this was a significant win for women and girls, including lesbians.
What specifically might this UK ruling mean for lesbians in other countries? For one thing, it seems to advance a trend of rolling back so-called “transgender rights” that had already been underway in a number of countries. In this article we will take a look at the countries represented by LBORI member organizations, describing the current state of the law regarding lesbians vis a vis “gender identity,” and how and whether the FWS ruling might influence lesbian rights outside of the UK.
United States
The current US President has issued an Executive Order stating that only two immutable sexes are to be recognized, male and female. Federal agencies have generally complied, for instance by removing preferred pronouns from employees’ online profiles; and passports are no longer being issued with inaccurate sex markers. The execution of some of Trump’s EOs has been blocked by court injunctions; for example, there are still men housed in women’s prisons, pending judicial outcomes, and there are still men claiming to be women in the US military.
At the state level there is sharp division regarding recognition of “transgender people,” depending on whether the state has a Republican (“red”) or Democratic (“blue”) majority. Red states typically have legislation providing for single-sex prisons, shelters, sports, and/or public toilets. Blue states typically protect “trans status,” and are preparing to clash with federal policy in court. But red states also tend to disenfranchise lesbians as part of “LGBTQ+,” for example, by banning or attempting to prohibit teachers from discussing same-sex relationships with their young students, along with all things “trans” and “queer.” It all needs judicial resolution at the federal level.
The lawfulness of so-called “gender affirming care” for minors (more accurately called the use of medical procedures to disguise children’s sex characteristics) is the central subject of an important lawsuit pending before the US Supreme Court, United States v. Skrmetti. In this case, the state of Tennessee had banned the procedures on children, and several parties sued to have the ban removed, including some parents, the Biden administration, and the American Civil Liberties Union (ACLU). The US chapter of Women’s Declaration International filed an amicus curiae brief in that case; Women’s Liberation Front (WoLF) also filed an amicus brief. The ruling is expected in June, 2025.
The Skrmetti case raises issues far broader than just the administration of cross-sex hormones and surgical sterilization of minors. Additional issues include whether there can be male “women,” whether “transgender” describes a class that is sufficiently coherent to be protected under the US Constitution, and whether transgender ideology harms lesbians, gay men, and bisexuals; a ruling that answers these questions may benefit lesbians. The judiciary is not supposed to be influenced by global trends; but the FWS ruling, coming from the highest court in a country whose common-law legal system we share, could possibly provide cover for the US Supreme Court justices if they want to rule similarly.
Germany
In Germany, the Self-Determination Act (“Selbstbestimmungsgesetz”) has been in force since November 1st, 2024. Under this law, adults may change their sex entry once a year between female, male, diverse, and no entry.
No medical-psychological assessments or operations are required for this. A self-declaration at the registry office is sufficient.
Children from the age of 14 may also ask for a change of sex entry according to their “gender identity” with the consent of their parents, or, alternatively, a court. Highly controversial guidelines on medical procedures have been drawn up by medical associations and allow puberty blockers and medical interventions from the age of 14.
On February 23rd, Christian Democrats and Social Democrats were elected by a majority of voters. They are currently negotiating a coalition government. Before the election, the Conservatives had promised to abolish the law, but the Social Democrats rejected this, meaning that the law will be evaluated until 2026.
German feminists are actually rallying once again to fight the law and are hoping that the changes in the UK and the USA will help them to do so successfully.
New Zealand
The UK ruling is in stark contrast to the situation of lesbians in New Zealand, where the law currently permits self-identification, i.e., male inclusion in the legal category of “woman.” NZ’s Human Rights Act and Births, Deaths, Marriages and Relationships Registration Act allows for legal changes of sex markers without any requirement for medical transition.
In contrast to the UK’s ruling, which reaffirms that “woman” and “lesbian” are categories rooted in biological sex, NZ law conflates sex with self-declared “gender identity.” This has left many lesbians legally vulnerable and socially marginalised.
Lesbians are working to restore our sex-based rights and protections, but have not yet challenged the status quo in a court of law in New Zealand. However, following unsuccessful mediation attempts facilitated by the Human Rights Commission, one lesbian group, Lesbian Action for Visibility in Aotearoa (LAVA) escalated the matter to the Human Rights Review Tribunal. The Tribunal’s decision in this case could have significant implications for the balance between freedom of expression and anti-discrimination protections within New Zealand’s legal framework. In 2021, Wellington Pride had declined LAVA’s application to host a stall at an event because the organisers perceived LAVA’s views as “anti-transgender.” LAVA contends that this exclusion constitutes unlawful discrimination based on their ethical beliefs, political opinions, and sexual orientation. The case will be heard later this year.
There is also a new bill in the pipeline: Introduced by the New Zealand First party, the Fair Access to Bathrooms Bill seeks to mandate the provision of clearly marked unisex and single-sex bathrooms in all new public buildings. The bill aims to restore the privacy and safety of women and girls. The public discussion around this bill will certainly be informed by the UK’s Supreme Court ruling.
Should a legal challenge against the erasure of lesbians and for the re-establishment of sex-based protections arise, the UK findings will surely be useful to lawyers, activists, and legislators in NZ. Although NZ courts are fully independent, decisions from the UK Supreme Court can be cited as precedents. Hopefully, NZ judges will look to the UK ruling to help interpret terms like “sex” or “discrimination” under NZ’s Human Rights Act 1993, even though they’re not bound to follow it.
Australia
The finding of the UK Supreme Court that Man and Woman refer to biological sex will not explicitly apply in Australian Law. The finding on the other hand could be very influential in that it will supply an argument that can be used without associating women’s rights with bigotry, extreme right wing organisations, Nazis, or Donald Trump.
Currently most of Australia has “self-ID” laws where a man can claim to become a woman just by claiming female identity.
For example, there is a football team in New South Wales that won its division with five players who, in the terms of international athletic standards, had gone through male puberty. The young women who objected to the unfairness were the ones sanctioned.
Legal cases on the meaning of “woman” currently in appeal to the Federal Court
1. The Lesbian Action Group applied to the Australian Human Rights Commission for an exemption to run public events for lesbians, i.e., women with the sexual orientation of being attracted to persons of the same sex.
– The exemption request was based on the clauses in the Sexual Discrimination Act referring to Special measures intended to achieve substantive equality between men and women, or people who have different sexual orientations.
– The exemption was refused by the Australian Human Rights Commission.
– On appeal to the Administrative Review Tribunal, the finding was that anyone can be excluded from public events for Lesbians, except a man who identifies as a woman who is sexually attracted to women.
– The Appeal to the Federal Court will be heard February 2026.
2. “Tickle vs Giggle for Girls”, where the judge found that a man who identifies as a woman was indirectly discriminated against by being excluded from a social media platform established to provide support for women. Significant in the judgement was the statement that “on its ordinary meaning, sex is changeable.” This Appeal will be heard in August 2025.
The finding of the UK Supreme Court could be very useful as a protection from and defence against criminal charges of “Hate Speech.” An Australian Court would have to find that a paraphrasing of the finding of the UK Supreme Court was “hateful.” “Hate Speech” laws recently passed in Victoria define hate speech in terms of Gender Identity as anything that a “reasonable transgender person” finds hateful. There is no defence that a statement can be proven true.Transgender activists claim that “misgendering” and “deadnaming” are hateful.
Self-ID laws allow the alteration of a Birth Certificate to change the birth sex recorded. Thus the social experience of birth as a boy baby, growing up as a boy child, the acquisition of qualifications and work experience under a male name, the fathering of children, marriage as a man are all declared as never having happened. There is an obvious legal minefield in the area of a person claiming that he or she has been “deadnamed” when asked to fulfill obligations undertaken in the persona of the male person that never existed. The finding of the UK Supreme Court that sex means biological sex may give the confidence to people harmed by the gender transition of an intimate or business associate to bring legal action.
Norway
There are no cases pending in Norway that impact the protection of lesbians vis a vis people claiming “trans” status. In light of the UK ruling, Lezbicon is consulting with lawyers with an eye toward putting together a lawsuit having a lesbian-rights issue.
Italy
In Italy there is a law regulating “gender transition” that involves Court approval based on psychological and medical reports, but does not require surgical intervention. Although a national self-ID bill is not in the offing, there is a strong push to promote self-ID at a local level and within schools, universities, and professional associations. The ongoing battle in Italy at the moment is more cultural than legal. However, the UK ruling is certainly going to help. It should serve as a warning of the legal incoherence that an obscure notion such as “gender identity” can bring into the Italian legal system.
Conclusion
In the short time since the UK ruling, there has been angry pushback by transgenderists in the UK. Some vow that they will defy the high court’s ruling. Lesbians worldwide are watching closely to see whether and how the ruling will be implemented, and whether the return to reality and common sense will be adopted into the laws and policies of other countries; because incorporating the reality of sex into every aspect of law and policy is crucial to our ability to take part in public life as lesbians with reasonable liberty and safety.
Lesbian Bill Of Rights International (LBORI)
WDI USA Lesbian Caucus
LAZ reloaded (Germany)
Lesbian Resistance NZ
Lesbian Action Group (Australia)
Lezbicon (Norway)
Arcilesbica (Italy)
https://www.lborinternational.com
