The Supreme Court handed down its highly anticipated judgment in For Women Scotland v The Scottish Ministers yesterday. The Supreme Court was asked to decide whether a trans woman with a full gender recognition certificate (GRC) fell within the definition of a ‘woman’ under the Equality Act 2010 (EA 2010). The Court concluded that they did not.

The issue arose from a decision of the Scottish government, back in 2018, to introduce a law to increase the number of women on public boards. In the statutory guidance supporting the new law, they stated that transgender women – people who were assigned male at birth but had legally changed their gender to female with a GRC – were ‘women’.

This had a knock-on impact on the EA 2010 where the protected characteristic of sex refers only to a man or a woman. A ‘woman’ is defined as ‘a female of any age’. The Scottish government’s guidance meant that a GRC recognising that a person’s gender was female brought them within the EA 2010 definition of a ‘woman’. So, for example, those holding a GRC would have the right to access single-sex services provided for members of the opposite (biological) sex (save where the exclusion could be justified).

The guidance was endorsed by the Court of Session. For Women Scotland appealed. The Supreme Court, allowing the appeal, held:

  • The terms ‘man’, ‘woman’ and ‘sex’ in the EA 2010 refer to biological sex. To hold otherwise would lead to a lack of coherence within the statute. The Scottish government’s guidance was not correct. In particular:
    • Defining ‘sex’ to include GRC-acquired sex would undermine the legal definitions of ‘man’ and ‘woman,’ creating inconsistent and unworkable groupings – especially in areas like pregnancy, maternity, and sex-specific protections, which refer to biological sex.
    • Giving extra rights to GRC-holders would create an unfair division among trans people and leave service providers unable to lawfully distinguish between them (as they are unable to ask whether a person holds a GRC).
    • The Scottish government’s interpretation would also undermine protections based on sexual orientation – for instance, by compromising the legality of lesbian-only spaces and groups.
    • Many provisions – such as those for changing rooms, single-sex services, hostels, and medical spaces – require a consistent, biological definition of sex to function properly.
  • The correct interpretation of the EA 2010 did not disadvantage trans people (with or without a GRA). They have rights which attach to the protected characteristic of gender reassignment.
  • Trans people also have protection through discrimination by association. Individuals are not required to hold the relevant protected characteristic in order to be able to claim direct discrimination and harassment – they only need to show that they are perceived as holding the characteristic or are associated with it. Likewise, s19A EA 2010 extends indirect discrimination to cover people who suffer the ‘same disadvantage’ as the protected group, even if they do not (for EA 2010 purposes) fall within it.

Comment

Whatever outcome had been reached by the Supreme Court in this case, it was going to be controversial. However, from a dispassionate legal perspective, it is, at least, understandable. Statutory interpretation can only be pushed so far. The Gender Recognition Act 2004 made it clear (s9(3)) that its provision (s9(1)) stating that those holding a full GRA held ‘for all purposes’ their certificated gender would not apply if another existing statute could not be interpreted coherently in accordance with it. The Supreme Court held, in the case of the EA 2010, that, despite what the Scottish government had advised, it could not be interpretated coherently in accordance with it. It cut across protection for pregnant employees, created a two-tier system of protection for trans people (depending on whether or not they held a GRA) and made provision for single-sex services dysfunctional at best.

What is perhaps the most important point to be taken from the Judgment is its focus on the ways in which trans rights are already protected under the EA 2010. The combination of the protected characteristic of gender reassignment and the extension of direct discrimination, harassment and indirect discrimination to cover discrimination by association mean that trans people do have clear routes to protection from discrimination.