Supreme Court rules that meaning of ‘man’ and ‘woman’ in Equality Act 2010 refers to biological sex

At a glance

• Supreme Court rules that the terms 'man', 'woman' and 'sex' in the Equality Act 2010 refer to biological sex
• Any other interpretation would render discrimination legislation incoherent and impracticable to operate
• Single sex facilities and services cannot include trans men in male facilities and services or trans women in female facilities and services, regardless of whether the individual has a Gender Recognition Certificate
• This interpretation of the Equality Act 2010 does not remove protection from trans people, with or without a GRC.
• Trans people are protected from discrimination on the ground of gender reassignment. They are also able to invoke the provisions on direct discrimination and harassment, and indirect discrimination on the basis of sex.

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In a judgment handed down today, For Women Scotland Ltd v The Scottish Ministers the Supreme Court has determined the meaning of ‘man’, ‘woman’ and ‘sex’ in the Equality Act 2010 as referring to biological sex, not acquired or certificated sex under a Gender Recognition Certificate.

Background

The appeal arose in the context of a challenge to the lawfulness of statutory guidance issued by the Scottish Parliament on the Gender Representation on Public Boards (Scotland) Act 2018 (ASP 2018). This legislation created 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: (1)  with the protected characteristic of gender reassignment; (2) living as a woman; and (3) proposing to undergo / undergoing / who have undergone a gender reassignment process. In 2020, For Women Scotland (FWS), a feminist voluntary organisation, challenged the law and guidance. The Inner House found that the 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 issued new statutory guidance which states that, under the ASP 2018, the definition of a ‘woman’ is the same as that in the Equality Act 2010 (EqA). The EqA defines ‘woman’ as ‘a female of any age’. The new statutory guidance 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.

FWS challenged the lawfulness of the new statutory guidance. The Outer House and Inner House both dismissed the claim, but the Supreme Court allowed the appeal, holding unanimously that the terms ‘man’, ‘woman’ and ‘sex’ in the EqA refer to biological sex, and do not include individuals who hold a GRC (referred to in the judgment as ‘certificated sex’).

The legal framework

Protection from sex discrimination was initially recognised in the Sex Discrimination Act 1975 (SDA). The SDA made it unlawful (1) for a woman to be treated less favourably than a man because of her sex (direct discrimination) and (2) to apply a requirement or condition which applies equally to both sexes but where the proportion of women who can comply is smaller compared to the proportion of men (indirect discrimination). The legislation also recognised and accommodated for exceptions to the general rule; for example, where people would be undressing together, living in the same premises or using sanitary facilities together, considerations of decency and privacy required separate facilities to be provided for men and women. The words ‘man’ and ‘woman’ were used throughout the SDA to distinguish between different groups on the basis of sex.

The Sex Discrimination (Gender Reassignment) Regulations 1999 amended the SDA to include a prohibition on discrimination on the ground of gender reassignment. Both the SDA and the 1999 Regulations were replaced by the EqA which enacted protections against discrimination based on protected characteristics including sex and gender reassignment.

The Gender Recognition Act 1994 (GRA) provides that when a full GRC is issued to a person that person’s gender becomes ‘for all purposes' the acquired gender, subject to any provision made by the GRA or any other Act or Regulations. The majority of trans people who do not possess a full GRC remain in law their biological sex. A person aged 18 or over can apply for a GRC on the basis of ‘living in the other gender’ or having changed gender in an overseas country. Where the application is based on the person living in the other gender, the panel must grant the application if satisfied that the applicant satisfies four criteria, namely that the applicant: (1) has or has had gender dysphoria; (2) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made; (3) intends to continue to live in the acquired gender until death; and (4) complies with the evidential requirements which includes two medical reports. The applicant must also provide a statutory declaration that the applicant has lived in the acquired gender for two years and intends to do so until death. There is no requirement for the applicant to have undergone or to intend to undergo gender reassignment surgery.

The proceedings in the Supreme Court

Four organisations were given permission to intervene: Sex Matters, a human rights charity; the EHRC; Amnesty International UK and (combined) Scottish Lesbians; The Lesbian Project; and LGB Alliance.

The judgment stresses 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 is it to define the meaning of the word ‘woman’ other than when it is used in the provisions of the EqA. The principal question which the court addresses is the meaning of the words which Parliament has used in the EqA legislating to protect women and members of the trans community against discrimination. The court’s task is to see if those words can bear a coherent and predictable meaning within the EqA consistently with the GRA as a matter of statutory interpretation.

The judgment of the Supreme Court

The court noted that there can be no doubt that Parliament intended that the words ‘man’ and ‘woman’ in the SDA would refer to biological sex. Secondly, the legislation recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilities together, considerations of privacy and decency required that separate facilities be permitted for men and women. Thirdly, a range of other exceptions were considered necessary and reasonable, particularly (1) in relation to sport and competitive activity where typical masculine physique would give an unfair advantage and (2) where positive action was needed to ensure that there was a reasonable representation of men and women on the boards of certain bodies.

The EqA imposes duties on individuals and organisations not to discriminate unlawfully by regulating the practical day-to-day conduct of employers, service-providers and others in relation to employees, workers, service users and members of the public who have one or more protected characteristics. Since sex as a protected characteristic is a ground for these legal rights, it must be possible for sex to be interpreted in a way that is predictable, workable and capable of being consistently understood and applied in practice. The group-based rights or protections in the EqA recognise that people who share a particular protected characteristic often have common experiences or needs, whether arising from differences of biology or physiology, or societal expectations or structures affecting their group. These shared experiences or needs can and do give rise to particular disadvantage if they are not met, and they differentiate that group from other groups without the protected characteristic. Clarity and consistency about how to identify the relevant groups that share protected characteristics are essential to the practical operation of the EqA.

There is no provision in the EqA that expressly addresses the effect (if any) which the GRA has on the definition of ‘sex’ or the words ‘woman’ or ‘man’ used in the EqA. The question that must therefore be answered is whether there are provisions in the EqA 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. An interpretation that produces unworkable, impractical, anomalous or illogical results is unlikely to have been intended by Parliament.

The definition of sex in the EqA 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 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 (irrespective of any other protected characteristic) and those trans women (biological men) who have the protected characteristic of gender reassignment and a GRC (and who are therefore female as a matter of law). The same references would necessarily exclude men of any age, but they would also exclude some (biological) women living in the male gender with a GRC (trans men who are legally male). The converse position would apply to references to ‘man’ and ‘men’ as a group sharing the same protected characteristic.

The Supreme Court could identify no good reason why the legislature should have intended that sex-based rights and protections under the EqA should apply to these complex groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group. It makes no sense for conduct under the EqA 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) GRC.

A strong indicator that the words ‘sex’, ‘man’ and ‘woman’ in the EqA have their biological meaning (and not a certificated sex meaning) is provided by the provisions on pregnancy and maternity. Since, as a matter of biology, only biological women can become pregnant, the protection is necessarily restricted to biological women. The repeated references to a woman who has become pregnant or who is breast-feeding only make sense if sex has its biological meaning. If the acquisition of a GRC applies to these words, so that biological women living as trans men are male, they would be excluded from protection when pregnant notwithstanding a continued capacity to become pregnant.

Just as the pregnancy provisions manifestly require sex, woman and man to be interpreted in accordance with the biological meaning of those words, the same is also true of several other provisions. Properly understood these further provisions would be unworkable, inconsistent and incoherent if they bore a certificated sex meaning.

The EqA recognises sex and gender reassignment as distinct and separate bases for discrimination and inequality, giving separate protection to each. The definition of gender reassignment does not depend on having a GRC. Since neither possession of a GRC nor the protected characteristic of gender reassignment require any physiological change or even any change in outward appearance, there is no obvious outward means of distinguishing between a person with the protected characteristic of gender reassignment who has a GRC and a person with that characteristic who does not. The only difference between these two groups is possession of a paper certificate and that fact is confidential to the person who has it and subject to stringent restrictions on disclosure. The consequence of an interpretation of sex in the EqA as extending to certificated sex would also create an odd inequality of status between those who share the protected characteristic of gender reassignment but do or do not hold a GRC, with the smaller group (holders of a GRC) given additional rights, and no obvious means of distinguishing between the two groups.

The Supreme Court could see no good reason why the legislature should have intended that people with the protected characteristic of gender reassignment should be regarded and treated differently under the EqA depending on whether or not they possess a (confidential) GRC, even though in many (if not most) cases there will be no material distinction in their personal characteristics, either as regards gender identity, or appearance, or as to how they are perceived or treated by others or society at large.

There would also be consequences for the protected characteristic of sexual orientation. A person with same sex orientation as a lesbian must be a female who is sexually oriented towards (or attracted to) females, and lesbians as a group are females who share the characteristic of being sexually oriented to females. This is coherent and understandable on a biological understanding of sex. On the other hand, if a GRC were to alter the meaning of sex it would mean that a trans woman (a biological male) with a GRC (so legally female) who remains sexually oriented to other females would become a same sex attracted female, a lesbian. The concept of sexual orientation towards members of a particular sex is rendered meaningless. It would also affect the composition of the groups who share the same sexual orientation (because a trans woman with a GRC and a sexual orientation towards women would fall to be treated as a lesbian) in a similar way as described above in relation to women and girls. As well as the inevitable loss of autonomy and dignity for lesbians such an approach would carry with it, it would also have practical implications for lesbians across several areas of their lives. If a GRC changes a person’s sex for the purposes of the EqA, a women-only club or a club reserved for lesbians would have to admit trans women with a GRC (legal females who are biologically male and attracted to women).

The core provisions which refer to sex, man or woman, are not capable of being read fairly and consistently with the terms of the GRA without defeating their purpose and meaning. The definition of these terms is not capable of being interpreted on the basis of certificated sex. Rather, sex has its biological meaning throughout the EqA. To reach any other conclusion would turn the foundational definition of sex on its head and diminish the protection available to individuals and groups against discrimination on the grounds of sex.

In addition, the provisions of the EqA which regulate the provision of services and public functions contain exemptions from the general prohibition against discrimination. Some of these permit what would otherwise constitute gender reassignment discrimination. In enacting these exemptions, the intention must have been to allow for the exclusion of those with the protected characteristic of gender reassignment, regardless of the possession of a GRC, in order to maintain the provision of single or separate services for women and men as distinct groups in appropriate circumstances.

These provisions are directed at maintaining the availability of separate or single spaces or services for women (or men) as a group – for example changing rooms, homeless hostels, segregated swimming areas (that might be essential for religious reasons or desirable for the protection of a woman’s safety, or the autonomy or privacy and dignity of the two sexes) or medical or counselling services provided only to women (or men) – for example cervical cancer screening for women or prostate cancer screening for men, or counselling for women only as victims of rape or domestic violence. If sex has its biological meaning, then a service-provider can separate male and female users as obvious and distinct groups. For example, a homeless shelter could have separate hostels for men and women provided this pursued a legitimate aim, which might be the safety and security of women users or their privacy and dignity (and the same for male users). By contrast, if sex means certificated sex, the service-provider would have to allow access to trans women with a GRC. If as a matter of law, a service-provider is required to provide services previously limited to women also to trans women with a GRC even if they present as biological men, it is difficult to see how they can then justify refusing to provide those services to all biological men.

A similar problem arises in relation to the positive action provisions (addressing particular needs, disadvantages, or under-representation of persons who share a protected characteristic). If sex means certificated sex, how can an organisation consider the needs of, or disadvantage to, women separately from men, and if it identifies a need for positive action, must it include trans women with GRCs (but not those without) within that action, and exclude biological females with GRCs?

The practical problems that arise under a certificated sex approach are clear indicators that this interpretation is not correct. The meaning of the terms ‘sex’, ‘man’ and ‘woman’ in the EqA is biological and not certificated sex.

In the context of the case, the appointment of a trans woman who has a GRC does not count as the appointment of a woman and so does not count towards achieving the goal set in the gender representation objective, namely that the board has 50% of non-executive members who are women.