'Sex' means biological sex under Equality Act, judges rule

The possession of a gender recognition certificate does not alter a person’s sex under the Equality Act, the Supreme Court has ruled.

Judges unanimously ruled that ‘woman’ and ‘sex’ under the Act refers to biological woman and biological sex, and therefore excludes trans women and trans people.

The judgment was handed down on Wednesday morning.

The case was brought by campaign group For Women Scotland, who had argued that ‘woman’ should be considered an “immutable biological state” by law and therefore would not take into account a GRC. 

The Scottish Government’s legal team had argued holders of a GRC were “entitled to the protections” of their preferred sex under the Act.

Lord Hodge said: “The unanimous decision of this court is that the terms ‘woman’ and ‘sex’ in the Equality Act 2010 refer to a biological woman and biological sex.

“But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another. It is not.”

He went on the explain that trans people continued to be protected by the Equality Act as they had the protected characteristic of gender reassignment. He also said the trans community was covered by discrimination by association – meaning a trans woman could bring forward a case of sex discrimination on the basis she is perceived to be a woman.

But on the question more broadly, judges said interpreting the definition of sex to mean certified sex rather than biological sex led to “incoherence” and “practical problems”.

In particular, Lord Hodge pointed to issues that such an interpretation would have on single-sex space exclusions.

Judges heard the legal arguments over two days last November.

The Scottish Government has said it will “now engage on the implications of the ruling”, saying it had “acted in good faith” in its interpretation of the two laws.

A spokesperson said: “We will be engaging with the UK Government to understand the full implication of this ruling, particularly in relation to Equalities law, which remains largely reserved. And we will engage with the EHRC as a matter of urgency on the need to review its guidance considering this judgment.

“Finally, we want to reassure everyone that the Scottish Government is fully committed to protecting everyone’s rights, to ensure that Scotland remains an inclusive country.”

The Equality and Human Rights Commission, which intervened in the case, welcomed the ruling. Chair Baroness Kishwer Falkner said: “We are pleased that this judgment addresses several of the difficulties we highlighted in our submission to the court, including the challenges faced by those seeking to maintain single-sex spaces, and the rights of same-sex attracted persons to form associations.”

The verdict will have far-reaching implications, including on the operation of the Equality Act and the Scottish Government’s stalled Gender Recognition Reform Bill.

It has had a mixed political reaction.

A UK Government spokesperson said: “We have always supported the protection of single sex spaces based on biological sex. This ruling brings clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs.

“Single sex spaces are protected in law and will always be protected by this government.”

Scottish Labour said the ruling must be “respected”.

Equalities spokesman Paul O'Kane added: “Now that we have this clarity, the SNP Government must now provide clear guidance for Scottish public services so they can implement the Equality Act properly and uphold the rights and dignity of all.”

The Scottish Conservatives said the ruling was “a victory for women and for common sense”.

Party leader Russell Findlay said: “John Swinney now needs to respect women’s rights and get rid of the dangerous gender policies which have become embedded in Scotland’s public institutions.”

Meanwhile the Scottish Greens expressed concern about the verdict, labelling it a “huge blow to some of the most marginalised people in our society”.

MSP Maggie Chapman said: “It could remove important protections and will leave many trans people and their loved ones deeply anxious and worried about how their lives will be affected and about what will come next... We will continue to stand with trans people and resist the nasty and aggressive culture war that is being waged against them and challenge any attempts to remove their rights.”

Vic Valentine, manager of Scottish Trans, said: “We are really shocked by today’s Supreme Court decision – which reverses twenty years of understanding on how the law recognises trans men and women with Gender Recognition Certificates. 

“The judgement seems to have totally missed what matters to trans people – that we are able to live our lives, and be recognised, in line with who we truly are.  

“Trans people need to be able to recover on hospital wards, use toilets, go swimming and access services just like anyone else. This judgement seems to suggest that there will be times where trans people can be excluded from both men’s and women’s spaces and services. It is hard to understand where we would then be expected to go - or how this decision is compatible with a society that is fair and equal for everybody.” 

Protected characteristics under the Equality Act cover both gender reassignment and sex.

It allows for the provision of single-sex services, including the exclusion of trans people from those services where it is deemed a proportionate means of achieving a legitimate aim.

But questions were raised about the status of a person who has obtained a GRC, which allows trans people to change the sex registered on official documents.

A case was initially raised by For Women Scotland in relation to the Gender Representation on Public Boards Act, passed by the Scottish Parliament in 2018, which aims to increase the number of women in public boards.

That originally defined ‘woman’ as a person with the protected characteristic of gender reassignment, living as a woman, and proposing to undergo, undergoing, or who have undergone a gender reassignment process.

A challenge brought by the campaign group resulted in the Court of Session ruling it unlawful as it fell outwith the competence of the Scottish Parliament, in that it altered a definition set out in the UK-wide Equality Act.

The Scottish Government has since amended the legislation to remove the section on the definition of a woman. However, the government has maintained its position that the definition of ‘woman’ is inclusive of trans women with a GRC under UK law.