The Supreme Court has issued its judgment in the case of For Women Scotland Ltd v The Scottish Ministers and determined that the terms “man”, “woman” and “sex” refer to biological sex for the purposes of the Equality Act 2010.

Facts

This case initially arose in relation to the definition of the word “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 (“ASP 2018”). Statutory guidance issued by the Scottish Government stated that the definition of a “woman” for the ASP 2018 was to be the same as the definition in the Equality Act 2010 (“EA 2010”), being “a female of any age”. With that said, the statutory guidance also stated that an individual with a Gender Recognition Certificate (“GRC”), which recognised their gender as female, would meet the definition of a woman under ASP 2018.

For Women Scotland Ltd the appellant raised a challenge to the lawfulness of the Scottish Government’s guidance, arguing that the definition of a “woman” under the EA 2010 was confined to biological sex and, consequently, trans women with a GRC were not considered to be women for the purposes of the EA 2010 and ASP 2018. By contrast, The Scottish Ministers, the respondent argued that the definition of a “woman” under the EA 2010 included individuals whose certified sex was a woman and, therefore, trans women with a GRC were included under the definition.

The case was initially heard by the Outer House in December 2022, which found in favour of the respondent. The appellant appealed to the Inner House which again found in favour of the respondent, dismissing the appellant’s appeal. The appellant then proceeded with an appeal to the Supreme Court. 

The decision

The judges in the Supreme Court reached a unanimous verdict that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex.

It was noted that the terms “man” and “woman” were initially used in the Sex Discrimination Act 1975 to differentiate between groups on the basis of their sex, and that no subsequent legislation, including the Sex Discrimination (Gender Assignment) Regulations 1999, had amended the definition of these terms so that they would no longer refer to biological sex.

The Supreme Court determined that Section 9(1) of the Gender Recognition Act 2004 (“GRA 2004”), which states that trans individuals with a GRC should be regarded as their “acquired” gender, can be implicitly disapplied when alternative legislation is incompatible with the application of Section 9(1), or when its application would make the alternative legislation incoherent or unworkable. As such, express disapplication of the GRA 2004 was not necessary in the EA 2010, and Section 9(1) could be set aside if (i) the provisions of the EA 2010 indicated that a biological definition of “sex” and “woman” was intended, or (ii) a certified sex definition would make provisions of the EA 2010 incoherent or absurd.

In its evaluation of the EA 2010, the Supreme Court asserted that the provisions of the Act were inconsistent with Section 9(1) of the GRA 2004 and, therefore, that the definition of a “woman” does not include individuals whose biological sex is not female. The decision offers nine key reasons for this:

1. The EA 2010 enacts group-based protections against discrimination on the grounds of certain protected characteristics, including sex and gender reassignment, and imposes duties of positive action.
2. It is crucial that the EA 2010 can be interpreted in a clear and consistent way, so that groups which share a protected characteristic can be identified by those whom the Act imposes obligations on. Clarity is required so that the obligations within the EA 2010 can be performed in a practical way.
3. Interpreting “sex” as certified sex would create heterogeneous groupings and cut across the definitions of a “man” and “woman”. As a result, the protected characteristic of sex would become incoherent.
4. As a matter of ordinary language, the provisions of the EA 2010 relating to pregnancy, maternity, and risks specifically affecting women can only be interpreted as referring to biological sex.
5. The Supreme Court rejected the Inner House’s suggestion that the words “man” and “woman” could have variable meanings, so that the provisions relating to pregnancy and maternity in the EA 2010 would refer to biological sex, whilst elsewhere the definitions would include certified sex.
6. The interpretation of the respondent would create two sub-groups within those who share the protected characteristic of gender reassignment. Trans people with a GRC would benefit from the protections under both sex and gender reassignment, whereas those without would only be protected under gender reassignment. As such, trans people with a GRC would possess greater rights than those who do not. The Supreme Court noted that, in practice, it would be difficult to distinguish between differing sub-groups and duties, as there is a protection against asking trans people if they have obtained a GRC. 
7. Certificated sex interpretation would weaken the protections given to those with the protected characteristic of sexual orientation, for instance by interfering with the ability to have lesbian-only spaces and associations.
8. There are provisions within the EA 2010 which require a biological interpretation of sex in order to function. These include provisions which concern the single-sex services and spaces (including changing rooms, hostels and medical services).
9. Similar incoherence would apply to provisions relating to single-sex characteristic associations, such as participation in sport, the operation of the public sector equality duty, and the armed forces.

Lord Hodge, Lady Rose and Lady Simler agreed that the language in the EA 2010 demonstrated that the words “sex”, “woman”, and “man” were always intended to reflect biological definitions, and that these words cannot extend to include certified sex without rendering the definition of such “incoherent and unworkable”.

The Supreme Court stressed that the decision does not mean trans people are not protected under the EA 2010, highlighting that trans people, with or without a GRC, are protected from discrimination due to gender reassignment. This protection extends to direct discrimination, indirect discrimination, and harassment which occurs due to the perception or association with the trans person’s acquired gender.

Key takeaways

The implications of this decision are wide ranging, and further case law will be required to determine how this judgment will be applied moving forwards.

An immediate impact of the decision is that trans people with a GRC will not be considered as their certified sex in relation to same-sex spaces and associations. By way of reminder, those looking to create a same sex space will still have to justify their exclusion of other groups as a proportionate means of achieving a legitimate aim.

If you have any queries about the judgment, please reach out to one of our experienced employment lawyers.

If you would like to read the full judgment, please click here.

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