Supreme Court rules that the term sex refers to ‘biological women’

In a Judgment which brings clarity, but will no doubt give some groups cause for concern, the UK Supreme Court (UKSC) has ruled that the legal definition of a woman is based on biological sex.

Background

The Scottish Court of Session (the SCS) heard the case of For Women Scotland Ltd v Scottish Ministers in 2023. The SCS held that the term ‘woman’ includes trans women who have obtained a Gender Recognition Certificate (GRC).

The case stemmed from updated statutory guidance under the Gender Representation on Public Boards (Scotland) Act 2018 (the Act), which aims to ensure gender balance in public appointments. The guidance stated that trans women with GRCs should be considered women for the purpose of the Act.

For Women Scotland challenged this interpretation, arguing that it unlawfully extended the definition of ‘woman’ under the Equality Act 2010 (the EA), which they claimed should be based on biological sex.

The SCS confirmed that:

• Under the Gender Recognition Act 2004 (the GRA), once a person has a GRC, their gender is legally their acquired gender ‘for all purposes’, including for discrimination protection under the EA.
• The definitions of ‘woman’ and ‘sex’ under the Act can be read consistently with the GRA. The court found no legal barrier to interpreting ‘woman’ to include trans women with a GRC.
• A trans person with a GRC has two separate protected characteristics: gender reassignment and sex (based on their acquired gender). This does not conflate the two under the law.
• This interpretation does not make the EA unworkable, including in sensitive areas such as single-sex services or schools, where specific exceptions can still be applied if justified.

Equality and Human Rights Commission recommendation

Also in 2023, the Equality and Human Rights Commission (EHRC) published a recommendation that the government consider redefining ‘sex’ in the EA to mean biological sex.

The EHRC noted that the meaning of ‘sex’ in law has become particularly contested. The GRA created the concept of ‘legal sex’, such that a trans man with a GRC is legally a man and a trans woman with a GRC is legally a woman, and the courts have recognised this concept when interpreting the EA. The EHRC said that, to date, it has issued guidance to service providers on the basis that ‘sex’ in the EA covers ‘legal sex’. However, it acknowledges that this interpretation has made the meaning of ‘sex’ in the EA ambiguous so that it can be difficult for service providers to apply the law.

In the EHRC’s view, a biological definition of ‘sex’ in the EA would create legal clarity in eight areas (pregnancy and maternity, freedom of association for lesbians and gay men, freedom of association for women and men, positive action, occupational requirements, single sex and separate sex services, sport, and data collection) while creating ambiguity or being potentially disadvantageous in three (equal pay, direct sex discrimination and indirect sex discrimination). Therefore, on balance, it merited further consideration by the government.

Supreme Court decision

Overturning the decision of the SCS, Lord Hodge concluded that the meanings of the terms ‘sex’, ‘man’ and ‘woman’ in the EA refer to ‘biological sex’.

According to the UKSC, any other interpretation would make the EA ‘incoherent and impracticable’. It confirmed that ‘a person with a GRC in the female gender does not come within the definition of a ‘woman’ under the EA and the statutory guidance issued by the Scottish ministers is incorrect.’

The UKSC confirmed that its interpretation should not remove protection from transgender people, whether or not they have a GRC. The following protections are available to transgender people under the EA:

• Protection from discrimination on the grounds of gender reassignment.
• Protection from sex discrimination for trans women because they are perceived to be women.

What the ruling means for employers

This ruling brings clarity for employers in confirming that individuals assigned male at birth, even if they possess a GRC, are not legally recognised as women for the purposes of claiming sex discrimination under the EA.

However, it’s important to note that the ruling does not diminish the protections afforded to transgender individuals under the protected characteristic of gender reassignment in the EA. Employers must continue to uphold these protections, ensuring that transgender employees are not subjected to discrimination or harassment.

For more information about this article or any other aspect of people services reimagined, download our App for Apple or Android, and contact your integrated HR, employment law and health & safety team at AfterAthena today.