Supreme Court issues judgment on the meaning of “sex”, “man” and “woman” in the Equality Act  2010

In its landmark ruling, the Supreme Court has held that references to “sex”, “gender”, “man” or “woman” in the Equality Act 2010 should be interpreted as meaning biological sex only. 

The immediate aftermath of this decision has seen a surfeit of legal commentary on the wider implications for equalities and diversity legislation and, in particular, for the transgender community.  There is (not unreasonably) significant concern from trans rights groups that the Judgment weakens transgender protections and plunges an already marginalised group further into the political, social and legal periphery. 

In this article we explain the background to the appeal, the rationale for the Supreme Court’s decision and endeavour to unpick the wider implications that the decision may have for employers and public service providers.  

Background

The central question for the Supreme Court was: what does the Equality Act mean by “man” and “woman”?  Does it mean biological sex only or does it mean both biological sex as well as “certified sex” (i.e. trans persons holding a full GRC).

The issue arose as a result of the Gender Representation on Public Boards (Scotland) Act 2018 (which aimed to increase female representation on public boards) and, in particular, its accompanying guidance which defined “woman” as including both biological women as well as trans women with a full GRC. It said that this interpretation reflected the Equality Act 2010 definition of a “woman”.

In drafting its guidance, the Scottish Government relied on section 9(1) of the Gender Recognition Act 2004 (GRA 2004), which states that where a gender recognition certificate (GRC) has been issued to a person, that person’s gender is, for all purposes, that of their acquired gender.  

Section 9(1), however, is subject to the provisions of section 9(3) which allows an exception to this rule if there is “…anything else in the GRA 2004 or any other enactment or subordinate legislation which negates that assumption”.

The Scottish Government’s position was that because the Equality Act does not itself contain any definition of “woman”, “man” etc, post-dated the GRA 2004 and does not explicitly negate the assumption in section 9(1) GRA 2004, the sex-based rights and protections afforded by it to individuals and groups sharing a protected characteristic, must also include those trans men and women holding a full GRC.  In the alternative, they argued that the definition of “sex”, “man” and “woman” should have a variable meaning depending on which section of the Equality Act is being invoked. 

This position was challenged by For Women Scotland Ltd who argued that this altered the UK-wide definition of “woman” used in equality law, and this was outside the remit of the Scottish Parliament’s devolved powers.  

Following an unsuccessful application for judicial review, For Women Scotland appealed to the Supreme Court.

Decision

In a unanimous decision, the Supreme Court rejected the Scottish Ministers’ position.

Whilst the Court acknowledged that the Equality Act did not expressly exclude the application of section 9(1) GRA 2004, the Equality Act itself must be read as a whole, taking into account the surrounding context and the purpose for which it was drafted.   The Court concluded that it was inherently obvious from the surrounding context and historical backdrop that biological sex was what was clearly meant. 

The Court rejected the proposition advanced by the Scottish Ministers that because the Equality Act post-dated the GRA 2004, it must have been drafted with the GRA 2004 in mind.  The Court rationalised that the Equality Act was only a consolidating legislation to enact group-based protection against discrimination on the grounds of sex and gender reassignment, and to impose duties of positive action. 

The Court’s view was that if sex was defined as “certified sex” rather than biological sex, this would cut-across these group-based protections (and, in particular, the risks specifically posed to women) and would create absurd results.  It would also create practical day-to-day difficulties, as ascertaining the category into which an individual falls could only be established by knowledge of who does or does not possess a GRC (and it is against the law to ask if a GRC has been obtained).

Clarity and consistency about the meaning of the protected characteristics and how to identify the relevant groups that share protected characteristics were, the Court said, essential to the practical operation of the Equality Act.  Without this, the provisions would be incoherent.

In a detailed analysis of the predecessor legislation and the effect that a certified-sex interpretation would have on core protections in the Equality Act, the Supreme Court cited numerous examples to underscore its point.  A select few, for those who are interested in the details, are set out below.

Pregnancy and maternity discrimination

Focusing first on pregnancy and maternity discrimination it was, the Court held, an indisputable fact that, as a matter of biology, only women can become pregnant and breastfeed.  The associated rights and protections afforded under this part of the Equality Act, therefore, must be properly construed and restricted to biological women as well as those living as trans men (whether or not they have a GRC).

Were a certified-sex interpretation to be applied to the meaning of “woman”, this would result in protection for biological women (including those living as trans men but without a GRC) and trans women (biological men holding a full GRC) but would exclude from protection trans men (i.e. biological women holding a full GRC).   This would create a two-tier system, whereby trans men holding a full GRC would not be protected from pregnancy and maternity discrimination (and would potentially need to pursue gender reassignment discrimination in order to obtain the benefit of this protection) whereas those who did not have a GRC would be protected. 

Gender reassignment discrimination

The Court also had regard to the effect such an interpretation would have on gender reassignment discrimination, protection from which does not require possession of a GRC or any outward physiological change.

A certified-sex interpretation of the Equality Act would create an inequality of status between those who have a GRC (and who benefit from additional rights as holders of a GRC) and those who do not – but with no way of distinguishing between the two.

Sexual orientation discrimination

Furthermore, the Court held that anything other than a biological interpretation of sex would render the definition of “sexual orientation” (which is framed by reference to persons of the “same sex”, the “opposite sex”, or “either sex”) meaningless, and weaken protection for this group.  A certified-sex interpretation of the Equality Act would mean that a trans woman (i.e. a biological man holding a full GRC) who is in a relationship with a biological woman, would be protected from discrimination on the grounds of sexual orientation, and have the right to access lesbian-only spaces. 

The Court did not believe that this is what the Equality Act could have intended– and so the only obvious conclusion to draw is that “sex” means biological sex.

Single sex services

The Court also identified the difficulties a certified-sex interpretation to the Equality Act would have on the exceptions to the general prohibition on sex discrimination. 

As currently, drafted, the Equality Act allows for the provision of separate services and facilities (e.g. changing rooms, homeless/refuge hostels, medical screening programmes) for persons of each sex.

A certified sex-based approach would necessarily mean that those segregated services would have to allow access to a trans woman with a GRC (and vice versa). 

Aside from the difficulty of being able to distinguish between those with or without a GRC, as noted above, the Court pointed out that it would be practically impossible to establish the conditions necessary for separate services for each sex when each group includes people of both biological sexes.   

Does the Judgment weaken transgender rights?

The Supreme Court was very clear that it did not consider a biological sex interpretation would disadvantage or remove important protections afforded to trans people (with or without a GRC) under the Equality Act. 

Nevertheless, as explained above, just as a certified-sex interpretation of the Equality Act can serve to weaken protections for women, a biological interpretation can, unavoidably, have adverse implications for trans employees. 

Take for instance, equal pay.  To bring an equal pay claim, a complainant must identify a comparator of the opposite sex, in the absence of which their claim is bound to fail.  A certified-sex interpretation of the Equality Act would mean that a trans woman (i.e. a biological man with a GRC) paid less than a biological man doing like work or work of equal value, would be able to bring a claim.  However, on a sex-based interpretation, they cannot as there is no comparator of the opposite sex to point to.

Likewise, the Judgment means that a trans person cannot bring a claim for sex discrimination on the grounds that they are a woman/man (although see our further comments below).

However, whilst there is demonstrably a conflict of rights in this area that will no doubt require further statutory intervention before they are reconciled (if they can be reconciled at all), it is important to remember that trans people continue to be protected from discrimination on the grounds of gender reassignment, which remains in full force and effect.   They also remain protected from other provisions in the Equality Act which are not necessarily contingent on a complainant possessing the relevant protected characteristic themselves.

The protection afforded by direct discrimination, for example, encompasses discrimination based on association and perception.  It does not require the complainant to have the relevant protected characteristic in order to benefit from that protection.  

Likewise, with harassment. The “unwanted conduct” relied on need only “relate” to a protected characteristic; the recipient of that conduct does not need to possess the protected characteristic themselves.

Recent case law has also subsequently clarified that associative discrimination extends to indirect discrimination.  This means that where a group who shares a protected characteristic is put at a disadvantage, a person who is also put at that same disadvantage may claim discrimination even though they do not share the relevant protected characteristic.

Comment

There is no doubt that this Judgment has far-reaching implications for the trans-community, for service providers, sports bodies and public sector organisations.  In the days and weeks ahead, there is likely to be much commentary and debate as to what this all means and the steps that must now be taken to safeguard the rights of everyone.

It is important to remember however, that the Judgment is not a ruling on the meaning of “sex” and “gender” as it is used in other legislation, or a definitive legal opinion on the social status of the trans community.  It is not intended to be a roll-back of their rights and protections nor otherwise a comment on the future legislative direction of travel. It does not change the status of the majority of trans people who do not possess a full GRC. 

Implications for employers

Whilst at first blush the decision would also appear to have significant implications for sex-based rights in the workplace (positive discrimination, genuine occupational requirements etc.), the reality is that the implications for employers are relatively limited. 

Clearly the ruling will have an impact on equal pay legislation, as it means that a trans woman, for example, will not have the right to bring an equal pay claim on the basis that she is paid less than a (biological) man. This will no doubt create practical issues for employers, which (one would hope) would be addressed in any forthcoming guidance.

However, trans men (with or without a GRC) will continue to benefit from pregnancy and maternity rights afforded to women, and trans people (with or without a GRC), as well as men and women, can be barred from certain roles under the general occupational requirement exemption, provided their exclusion can be objectively justified.  

Although the ruling also means that trans people can be excluded from single-sex services by default (with no need for providers to identify a legitimate aim to exclude them), this does not mean that they are bereft of all protection.   Failing to provide appropriate services and facilities to trans employees could, of itself, be discriminatory on the grounds of gender reassignment.

Next steps

The Equality and Human Rights Commission is urgently updating its guidance in light of the Supreme Court’s decision and we would recommend waiting for this (due out in the summer) before making any significant changes to working practices.  In the meantime, our advice for employers is to:

• review how data is currently collected: current guidance recommending that this be collected on the basis of self-identification may be revised, and it would be sensible to ensure you have systems and procedures in place to implement any necessary changes swiftly if necessary;

• undertake an urgent review of sex-based facilities and if gender-neutral toilets or changing facilities are not provided, seek to introduce these, where possible, as a priority;

• provide refresher equalities training for staff and reiterate the importance of mutual dignity and respect in the workplace; and

• reach out to trans employees to keep the lines of communication open and offer support.

If you require further advice and assistance in relation to any of the matters raised above, please contact Prettys Employment Team on 01473 232121 or you can contact Sheilah at scummins@prettys.co.uk

You can also see our other employment law services here.