In For Women Scotland Ltd v The Scottish Ministers the Supreme Court unanimously decided that the definition of the terms “man” “woman” and “sex” in the Equality Act 2010 (EA 2010) refer to a persons biological sex. The appeal concerned the lawfulness of statutory guidance issued by the Respondent, which stated that a gender recognition certificate (GRC) recognising that a person’s gender is female brings them within the EA 2010 definition of a “woman”. The Supreme Court stressed in its judgement that it is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010. The issues to be considered were the statutory interpretation of the EA 2010 and whether the EA 2010 treats a trans woman with a GRC as a woman for all purposes within the scope of the provisions, or whether when it speaks of a “woman” and “sex” it is referring to a biological woman and biological sex.
Background
The appeal arose around a dispute concerning the definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 (“ASP 2018). That Act sets targets for increasing the proportion of women on public boards. The original ASP 2018 definition of a “woman” included 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. In 2022 For Women Scotland (FWS) challenged that definition. The Inner House found that this statutory definition was unlawful, as it dealt with matters that fall outside the legislative competence of the Scottish Parliament. The Respondent then issued new statutory guidance which is the subject of this appeal. That guidance stated that the definition of “woman” was the same as under the EA 2010. It also stated that a person with a GRC recognising that their gender is female is considered a woman under the ASP 2018.
The Appellant challenged the lawfulness of the Respondent’s statutory guidance in the Outer House. On 13 December 2022, the Outer House dismissed the Appellant’s petition. The Appellant appealed. On 1 November 2023, the Inner House upheld the decision of the Outer House and dismissed the Appellant’s appeal and FWS appealed to the Supreme Court.
Decision of the Supreme Court
The Supreme Court unanimously allowed the appeal.
The principal issue before the court was the effect of section 9 of the Gender Recognition Act (GRA 2004) on the meaning of the words “man” and “woman” in the EA 2010. Section 9(1) GRA 2004 provides that on receipt of a GRC “the person’s gender becomes for all purposes the acquired gender”. However, s9(3) includes a carve out from the operation of that rule, namely that it is subject to a provision made in the GRA 2004 itself or in any other enactment or any subordinate legislation. The Supreme Court disagreed with the respondent that only express wording in statute or necessary implication applying a stringent test could disapply the rule in 9(1) or that it could only apply in relation to future legislation and not legislation such as the Sex Discrimination Act 1975 which was already enacted at the time of the GRA 2004. The effect of section 9(1) on the very many statutes referring to men and women, whether enacted before or after the GRA 2004, must be carefully considered in the light of the wording, context and policy of the statute in question. The court found that clarity and consistency about how to identify the relevant groups that share protected characteristics are essential to the practical operation of the provisions in the EA 2010.
As set out above, s9(3) will apply where the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1). There is no provision in the EA 2010 that addresses the effect of section 9(1) of the GRA 2004 on the definition of “sex” or the words “woman” or “man” used in the EA 2010. The Supreme Court pointed out that the mere fact that the word “biological” is absent from the EA 2010 definition of “sex” is not by itself indicative of Parliament’s intention that a “certificated sex” meaning is intended and the same is true of the absence of the word “certificated” in the definition of “sex”. The question that must be answered is whether there are provisions in the EA 2010 that indicate that the biological meaning of sex is plainly intended and/or that a “certificated sex” meaning renders these provisions incoherent or as giving rise to absurdity as it is unlikely that the legislature would have intended an interpretation that produces unworkable, impractical, anomalous or illogical results. The Supreme Court therefore carried out a careful analysis of the core provisions in the EA 2010 that depend on or relate to “sex” and, whether, as a matter of ordinary language those provisions could be interpreted as meaning biological sex, or whether they have to be interpreted as also extending to persons who have been issued with a GRC. It also considered the practicability and workability of the duties imposed and protections afforded by the EA 2010 if a “certificated sex” interpretation is adopted and whether a “biological sex” interpretation is contra-indicated because it would remove important protection under the EA 2010 from trans people with a GRC.
The Supreme Court held that the definition of sex was biological for the purposes of the EA 2010. The definition of sex in the EA 2010 makes clear that the concept of sex is binary- a person is either a woman or a man. Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men. Although the word “biological” does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman. A certificated sex interpretation would cut across the definition of the protected characteristic of sex in an incoherent way. References to a “woman” and “women” as a group sharing the protected characteristic of sex would include all females of any age (and those trans women (biological men) who have the protected characteristic of gender reassignment and a GRC). The Supreme Court did not see why the legislature should have intended those protections to apply to complex, heterogeneous groupings rather than the distinct group with shared biology leading to shared disadvantage and discrimination.
The Supreme Court also indicated that it would make no sense for conduct under the EA 2010 in relation to sex-based rights and protections to be regulated on a practical day-to-day basis by reference to categories that can only be ascertained by knowledge of who possesses a (confidential) certificate under the GRA 2004. Those seeking to perform their obligations under the EA2010 would have no obvious means of distinguishing between those who possess a GRC and therefore would fall within the definition of certificated sex and those who do not, particularly since they would not be able to ask individuals if they had obtained a GRC.
The words sex and woman appear across different parts of the EA 2010 and in many sections. The Supreme Court felt that it would be surprising if the words sex and woman were intended to have different meanings in different sections or parts of the EA 2010, The repeated references in sections to a woman who has become pregnant or who is breast-feeding only make sense if sex has its biological meaning. The Court therefore disagreed with the view of the Inner House that it was possible to have a variable definition of woman in the EA2010. By its nature a variable definition would be neither clear, constant nor predictable.
The Court also considered it is also important that there are provisions within the EA 2010 whose proper functioning require a biological interpretation of sex in order to function coherently. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and single sex higher education.
The Court also emphasised that a biological sex interpretation would not have the effect of disadvantaging or removing important protection under the EA from trans people with or without a GRC. Individuals are protected from discrimination on the ground of gender re-assignment and direct and indirect discrimination can also occur by reason of association or perception with the acquired gender.
Conclusion
The Supreme Court have counselled against those who they are aware of having strong feelings either way seeing this judgment as a victory. They pointed out that the issue before the Supreme Court was one of statutory interpretation regarding the two statutes. The Supreme Court made it clear that they are well aware of the strength of feeling in relation to this matter and it is not the task of the court to make policy on behalf of those groups.
It is important for employers to remember that this does not change existing obligations in the workplace. Employers should ensure that they have clear guidelines in place to ensure inclusivity.
While this may have clarified the statutory interpretation under the EA 2010, many are calling for clearer guidance on how to deal with the conflicting characteristics, particularly surrounding the issues of single sex spaces and hiring practices. The Supreme Court decision makes it clear that for the purposes of the EA 2010 the term “woman” or “man” for these purposes is based on the biological sex, but employers should also ensure that they are not in any way discriminating against transgender employees in the way that they operate such practices.