Background

For Women Scotland, a feminist organisation, brought judicial review proceedings to challenge statutory guidance issued by the Scottish Ministers that a trans woman with a full Gender Recognition Certificate (“GRC”) under the Gender Recognition Act 2004 should be treated as a ‘woman’ for the purposes of achieving the objective of 50% women on public boards, in compliance with the Gender Representation on Public Boards (Scotland) Act 2018.  For Women Scotland’s argued that interpreting the Act in this way went beyond the legislative competence of the Scottish Parliament.  For Women Scotland were initially unsuccessful, but succeeded on appeal to the Inner House of the Court of Session, following which the Scottish Ministers produced revised statutory guidance which said that the word ‘woman’ for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018 had the same meaning as ‘woman’ under the Equality Act 2010.  The revised guidance also stated that where a person holds a full GRC, the person’s sex is that of their acquired gender, in accordance with s.9(1) Gender Recognition Act 2004.

S.9(1) of the Gender Recognition Act 2004 says that a trans person with a GRC is entitled to have their acquired gender recognised ‘for all purposes’, subject to s.9(3) which states that this entitlement is subject to any provision made by ‘any other enactment or subordinate legislation’. 

The key question by the time the case reached the Supreme Court, therefore, was whether the Equality Act’s references to ‘sex, ‘woman’, ‘man, ‘male’ and ‘female’ should be interpreted in light of the Gender Recognition Act, which permits a person to legally change their sex on obtaining a GRC. 

Judgment

In its judgment, the Supreme Court emphasised the necessity of clear and consistent statutory interpretation, holding that the s.9(3) qualification applies where there is a clear incompatibility between s.9(1) and other legislation, or where applying s.9(1) would make that other legislation’s provisions incoherent or unworkable.  Given that there is no provision in the Equality Act that expressly addresses the effect of s.9(1), the Supreme Court concluded that it was necessary to undertake a careful analysis of the Equality Act’s provisions to decide whether a definition based on ‘certificated sex’ (a person’s acquired gender) would render the Act’s provisions incoherent or absurd.

The Court concluded that interpreting ‘sex’ as ‘certified sex’ would cut across the definition of ‘man’ and ‘woman’, and therefore the protected characteristic of sex, in an incoherent way.  The Court noted that provisions relating to pregnancy and maternity discrimination, single-sex services, and sports (amongst others) would be rendered incoherent.  The Court therefore concluded that sex must refer to biological sex, as these provisions would become unworkable unless ‘man’ and ‘woman’ were given their biological meaning. 

However, the Court emphasised that its ruling should not be taken as being a triumph of one or more groups in society over others, and made clear that its decision did not remove protection from trans people, who remained protected from discrimination on the ground of gender reassignment, as well as protected from direct and indirect discrimination and harassment on grounds of perception or association with their acquired gender. 

What does this mean?

The consequence of the Supreme Court’s decision is that all transgender people (whether or not they have a GRC) must be treated as their birth sex under the Equality Act.  The on-the-ground implications of this are likely to be profound; for example, a transgender woman with a GRC will have no legal right to use the women’s toilets or changing rooms at work.  The practical implications of navigating a situation where a transgender woman is perceived by all around her to be a woman being denied access to the female toilets and being compelled to use the male toilets cannot be underestimated.  Equally, refusing a job to a transgender woman with a GRC on grounds that there is an occupational requirement for the role to be held by a woman is likely to be difficult to navigate on a practical level. 

Given the profound and far-reaching consequences that this judgment will have, public sector organisations should ensure that they consider the distinct needs and disadvantages of biological women and women separately from those of trans people, in order to ensure that policies and practices aimed at eradicating discrimination and/or promoting equality are in line with the Supreme Court’s ruling on the interpretation of sex under the Equality Act.  This may require review and revision of existing policies and guidance, particularly in respect of single-sex services and positive action measures.