For women judgment

The Supreme Court has ruled, in a unanimous decision, the definition of a woman for the purposes of the Equality Act 2010 (EqA 2010) is a biological woman.

Background

The Court addressed the question: ‘is a person with a full gender recognition certificate (GRC) which recognises that their gender is female, a ‘woman’ for the purposes of the Equality Act 2010?’ The appeal was brought by a feminist organisation, For Women Scotland, against the Scottish Ministers. The Appellant challenged the lawfulness of statutory guidance which had been published by the Respondent in which a ‘woman’ was defined as including an individual with the relevant Gender Recognition Certificate (GRC). The guidance was published following the Gender Representation on Public Boards (Scotland) Act 2018. It sets targets for increasing the proportion of women on public boards. The Act stated the definition of a ‘woman’ included those: “(i) with the protected characteristic of gender reassignment; (ii) living as a woman; and (iii) proposing to undergo / undergoing / who have undergone a gender reassignment process.”

The petition was previously unsuccessful in the Inner House. The Inner House had held that there was no distinction within the terms of the Gender Recognition Act 2004 between sex and gender. It held that the interpretation would not result in contradictions with the EqA 2010. Therefore, individuals with a GRC would benefit from both protections. This decision was appealed.

Judgment

The Appeal was allowed.

The Court stated that it was ‘well aware’ of the strength of feeling on both sides. It made clear that its role was to ascertain the meaning of the existing legislation, not to create policy.

The Court discussed its interpretation of the EqA 2010 while having regard to s9(1) of the Gender Recognition Act 2004 (GRA 2004). S9(1) of the GRA 2004 states that trans people are to be considered their acquired gender for ‘all purposes’. There is no provision in the EqA 2010 which addresses this. The Court took a detailed analysis of the legislation. It held that taking an ‘ordinary’ reading of the legislation would result in the provisions relating to sex discrimination being interpreted as referring to biological sex. An example was given in the provisions relating to pregnancy. As only biological women can become pregnant, it must refer to biological women. Continuing, the Court explained that this definition must be true for the entirety of the Act to ensure it is interpreted in a clear and coherent way.

To include individuals with a GRC, would create sub-sets within the groups, granting trans people with a GRC greater protections than trans people who do not have one. It would also be difficult to distinguish between groups, as an individual’s GRC status is often considered private information.

The judgment continues, outlining protections which are in place for trans people under the EqA 2010. The Court explains that taking a biological definition of women does not cause disadvantage to trans people, or those without a GRC. The EqA 2010 provides protection on the grounds of gender reassignment to trans people. Trans people are also able to bring claims of direct discrimination and harassment, and indirect discrimination on the basis of their acquired sex. Case law has established an individual is able to be protected if they are perceived as or associated with a protected characteristic. Thus, a trans woman would be able to bring a claim for sex discrimination as she is perceived as a woman. This protection would be in place regardless of if she had a GRC.

What does this mean?

The ruling could have significant social and political implications. It has the potential to increase the tension between employees’ views. For employers, practical steps should be considered to prevent these from affecting the workplace. It will be key for employers to develop policies and procedures which staff are then adequately trained on. Importantly, gender critical views, gender ideology and trans people all continue to be protected by the EqA 2010, in different ways, but employers should take all appropriate steps to encourage tolerance, comfortable co-existence, a commitment to no discrimination and avoiding harassment in the workplace, at all times.

The Equality and Human Rights Commission has stated that it is working to update its statutory and non-statutory guidance. In the meantime, it has published an interim update to highlight the main consequences of the judgment.

We will be keeping a close eye on developments and will provide further updates as and when they are published. If you or your business would benefit from guidance on the upcoming changes to employment law, please don’t hesitate to get in touch with our specialist Employment Law team.