Background
The Supreme Court outlined the issue to be determined as being one of statutory interpretation, namely the meaning of "man", "woman" and "sex" in the Equality Act 2010 ("the EqA").
As set out by the Supreme Court:
- The appeal arose in response to the definition of the term "woman" in the Gender Representation on Public Boards (Scotland) Act 2018 ("ASP 2018") and associated statutory guidance. The purpose of the legislation was to create gender representation targets to increase the proportion of women on public boards in Scotland. The ASP 2018 and the original statutory guidance defined "woman" as including people: (i) with the protected characteristic of gender reassignment; (ii) living as a woman; and (iii) proposing to undergo/undergoing/who have undergone a gender reassignment process. This guidance was challenged in 2020 by a feminist voluntary organisation that campaigns to strengthen women's rights in Scotland. The Inner House found that this statutory definition was unlawful as it involved an area of law reserved to the UK Parliament (equal opportunities) and therefore fell outside the legislative competence of the Scottish Parliament.
- The Scottish Ministers subsequently issued new guidance which is under challenge in this appeal. The new guidance states that, under the ASP 2018 the definition of a "woman" is the same as that in the EqA. The EqA defines "woman" as "a female of any age". However, the new statutory guidance also states that a person with a Gender Recognition Certificate ("GRC") recognising their gender as female is considered a woman for the purposes of the ASP 2018.
- Under the Gender Recognition Act 2004 ("GRA 2004") an adult can receive a GRC if they provide evidence that they have or have had gender dysmorphia, have lived as their acquired gender for two years and intend to continue to do so until death. The GRC is a document which allows trans people to change their gender legally.
- The lawfulness of the new statutory guidance was challenged by the Appellant in 2022, arguing that the definition of a "woman" under the EqA refers to biological sex, meaning that a trans woman with a GRC is not considered to be a woman under the EqA, and consequently under the ASP 2018. On the other hand the Respondent submits that the definition of a "woman" under the EqA refers to "certified sex", meaning that it includes trans women with a GRC.
- To summarise the legal journey to date - the Outer House dismissed the Appellant's petition, the Appellant appealed to the Inner House, which dismissed the Appellant's appeal. The Appellant now appeals to the Supreme Court.
Supreme Court
The Supreme Court considered the origins of discrimination protection on the basis of both sex and gender reassignment. The Supreme Court held that the Sex Discrimination Act 1975, which was the first legislation to protect against sex discrimination, was drafted on the basis of the words "man" and "woman" referring to biological sex. Following this through to the enactment of the EqA it was found that there was no indication that the EqA modified the meaning of "man" and "woman" or "sex".
Looking at the interpretation of the GRA 2004 it was established that trans people with a GRC are to be considered their "acquired" gender "for all purposes". The GRA 2004 does allow this principle to be disapplied by a provision in the GRA 2004 or "any other enactment or any subordinate legislation". This disapplication will apply where the terms, context and purpose of the relevant legislation show that it does, because of a clear incompatibility or because its provision are made incoherent or unworkable by the application of the principle (principle of trans people with a GRC are to be considered their "acquired" gender).
Now turning to the EqA. There is no provision in the EqA that expressly addressed the impact of the principle from the GRA 2004. The Supreme Court found it necessary to carry out a careful analysis of the provisions of the EqA to see whether they indicate that a biological meaning of sex is intended and/or that certified sex definition would render these provisions incoherent or absurd.
The Supreme Court found that as a matter of ordinary language, the provisions relating to sex discrimination can only be interpreted as referring to biological sex. Looking at provisions under the EqA such as those relating to pregnancy and maternity, it is clear that as a matter of biology only biological women can become pregnant, therefore these provisions would be unworkable unless "man" and "woman" have biological meaning. The Supreme Court clearly stated that interpreting "sex" as certified sex would cut across the definitions of "man" and "woman" and thus the protected characteristic in an incoherent way.
The Court also noted that a certified sex interpretation would also create two sub-groups within the gender reassignment protected characteristic – those with a GRC and those without one. This would be problematic when trying to perform obligations under the EqA as there would be no obvious way of distinguishing between the two groups – simply asking someone whether they had obtained a GRC is not an option as this information is private.
The knock on effect on those with the protected characteristic of sexual orientation was also noted as certified sex would interfere with their ability to have lesbian-only spaces and associations.
Other provisions that require a biological interpretation of "sex" in order to function coherently include:
- Separate spaces and single sex services – eg changing rooms, hostels and medical services.
- Communal accommodation.
- Single sex higher education institutions.
- The operation of single sex characteristic association and charities.
- Women's fair participation in sport.
- The operation of the Public Sector Equality Duty.
- The armed forces.
The Supreme Court was clear that the meaning of "sex" and "woman" must be consistent throughout the EqA and cannot have one meaning in one section and another in a different section.
The Court concluded that the meaning of the terms "sex", "man" and "woman" in the EqA refer to biological sex and that any other interpretation would render the EqA incoherent and impracticable. The Court reiterated the point that trans people are not left without protection. They are protected from discrimination on the ground of gender reassignment. Further, they are also able to invoke the provision on direct discrimination and harassment, and indirect discrimination on the basis of sex. A trans woman can claim sex discrimination because she is perceived to be a woman – no certified sex reading is required to enable this protection.
Conclusion
The case provides useful judicial clarity as to the legal parameters of the EqA following many years of confusion and debate on this topic. Employers and service providers alike are often in the challenging position of having to balance different protected characteristics. A top priority is employee engagement. The law isn't straightforward, there are numerous complexities and competing interests. Employers which are able to foster a positive workplace culture, a sense of allyship and inclusivity will be in a much stronger position.
A further key action point for employers is to ensure that policies and procedures are up-to-date and that training is regularly carried out so that there is no uncertainty over employer expectations. Most importantly, however, is that employers ensure that this case is not seen as a watering down of trans rights (a point emphasised by the Court in its conclusions) and that issues of sex and gender are addressed sensitively and appropriately.
If you need any legal advice with regard to the issues raised in this update please do not hesitate to get in touch.
