Background
The case of For Women Scotland Ltd (Appellant) v The Scottish Ministers has a lengthy and convoluted history. The 2018 Act sought to address under-representation of women on boards of Scottish public authorities. Both the 2018 Act and related guidance defined "woman" as including those with the characteristic of "gender reassignment" and living as a woman, whether or not they had a Gender Recognition Certificate ("GRC"). When this was challenged by For Women Scotland ("FWS") in 2020, the Inner House of the Court of Session held that the definition combined two separate and distinct protected characteristics - gender reassignment and sex - essentially creating a new protected characteristic of a "transgender woman". In doing so the Scottish Parliament were in effect amending the terms of the Equality Act 2010 ("the Equality Act"), something that was not within their legislative competence to do.
In response to that judgment, the Scottish Ministers issued revised guidance, this time defining "woman" as biological women and those who had acquired a GRC stating their "acquired gender" as female. In 2022, FWS challenged that revised guidance as seeking to introduce a new protected characteristic of "legal sex", arguing that the Scottish Government was, once again, acting outside of their legislative competence. However, on this occasion FWS were unsuccessful. The Court held that "sex" could have a variable meaning depending on context, but that under the Equality Act it included those with a GRC. The practical effect of the judgment was that a transgender woman with a GRC would be treated as a woman under the Equality Act 2010, but a transgender woman without a GRC would not. That judgment was unsuccessfully appealed to the Inner House in 2023.
The appeal to the Supreme Court
FWS appealed to the Supreme Court, who unanimously upheld the appeal holding that the terms "man", "woman" and "sex" in the Equality Act refer to biological sex. The Court was careful to point out that in coming to their judgment they were not adjudicating on the arguments in the public domain on the meaning of gender or sex. Their role was limited to interpreting the meaning of these words in the Equality Act.
The Court considered the legislative history of protection from sex discrimination and discrimination on the basis of gender reassignment. It also considered the interaction between the 2018 Act and the Equality Act and undertook an analysis of the provisions of the Equality Act to determine whether a biological meaning of sex is intended and whether including those holding a GRC would render the legislative provisions incoherent or absurd.
The Supreme Court's reasons
The Court concluded that "The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary, a person is either a man or a woman…. Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group". A certified sex interpretation would, according to the Court, "cut across the definition of the protected characteristic of sex in an incoherent way". In support of this conclusion the Court identified a number of provisions contained in the Equality Act that would be rendered incoherent including those relating to pregnancy and maternity discrimination (which transgender men with a GRC would be excluded from despite being biologically female).
The Court highlighted the practical difficulties caused where employers and service providers would have no obvious way of distinguishing between transgender men or women with a GRC and those without, since they are prohibited from asking whether someone has a GRC. The Court also specifically rejected the idea suggested by the Inner House in the earlier appeal that "women" and "sex" can refer to biological sex in some parts of the Equality Act and certificated sex in others, stating it "would offend against the principle of legal certainty and the need for meaning which is constant and predictable".
The Supreme Court was of the view that their conclusion that the Equality Act refers to biological sex does not disadvantage transgender people, with or without a GRC. Protection is available on the ground of gender reassignment as well as direct and indirect discrimination and harassment on the grounds of sex, including perceived sex.
Impact
On a practical level this judgment renders the guidance issued by the Scottish Government on the 2018 Act incorrect. The 2018 Act will therefore operate to encourage the participation of biological women in senior positions in public life. This is in reality a narrow legal issue, however its impact is likely to be felt more widely. Headlines that "transgender women are not legally women" need to be placed in the context that this is "for the purposes of the Equality Act".
Transgender people still have the right not to be discriminated against because of the protected characteristic of gender reassignment and their exclusion from single-sex services may still need to be objectively justified in certain circumstances. This involves employers and service providers seeking to balance the impact on all those affected and show that there is a sufficiently good reason for excluding transgender people or limiting their access to the service. The Equality and Human Rights Commission has said that they will issue updated guidance in the summer, but readers should note that the issue of objective justification can be a difficult one and we would recommend that advice is taken in relation to specific circumstances.
