The Supreme Court ruling is a victory for women

The Supreme Court ruling on the definition of ‘woman’ in the Equality Act is a victory for women, proper statutory interpretation and the reality-based community.

It started with the Scottish government trying to take something away from women. The Gender Representation on Public Boards Act, passed by the Scottish Parliament in 2018, required 50 per cent of non-executive appointments to public boards to be women. But the act defined ‘woman’ to include ‘a person who has the protected characteristic of gender reassignment’ provided that person was ‘living as a woman’ and intended to undergo ‘a process… of becoming female’. In theory, this could have meant that a public board could be made up of 50 per cent men and 50 per cent men ‘living as a woman’ and be compliant with the law.

Scottish feminist group ‘For Women Scotland’ challenged this in court on the grounds that redefining ‘woman’ for the purposes of equalities legislation was outside the powers of the Scottish Parliament. The Court of Session agreed, and the Scottish government issued new statutory guidance that made two assertions: 1) the definition of ‘woman’ was the same as that contained in the Equality Act 2010, and 2) a gender recognition certificate (GRC) not only changed a person’s legal gender but their sex. This time the court sided with the Scottish government, ruling that ‘the meaning of sex for the purposes of the 2010 Act’ was ‘not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act [the Gender Recognition Act] stating their acquired gender, and thus their sex’.

The Gender Recognition Act was introduced to accommodate the small number of dysphoria sufferers who wished to be recognised as a gender other than their birth sex. But now the court was saying that it interacted with the Equality Act in such a way as to bring about a change in a person’s legal sex. For Women Scotland appealed to the Supreme Court, and it has handed down a unanimous judgment saying that the definition of the terms ‘woman’ and ‘sex’ in the Equality Act mean biological woman and biological sex and that conflating these with ‘certificated sex’ is not supported in statute.

The court began from the point that the 1975 Sex Discrimination Act recognised two separate categories – man and woman – on the basis of biological sex, something confirmed when that Act was challenged in court and parliament responded with the Sex Discrimination Regulations 1999. The regulations introduced protection against discrimination, based on gender reassignment, alongside those based on sex and, crucially, did not simply legislate to say that gender reassignment and sex were the same thing. These are the regulations that eventually ended up in the Equality Act. If the regulations did not change the meaning of biological sex before they became part of the 2010 Act, and the 2010 Act says nothing about them changing the meaning of sex, then the pre-existing definitions continue to be in place.

The Gender Recognition Act states that people who hold a GRC must be treated in accordance with their acquired gender. However, it also says that this rule can be disapplied ‘by any other enactment or by subordinate legislation’. Because the Equality Act is silent on its interaction with this section of the GRA, the Supreme Court was required to interpret the statutes to construe their meaning. It began with an ordinary-meaning reading, noting that the 2010 Act references discrimination relating to pregnancy. The justices pointed out that, since only biological women can get pregnant, the term ‘woman’ in that context could only mean biological women.

The ruling is starker than might be expected

The court also found that adopting a ‘certificated sex’ reading would mean creating two sub-groups: trans people with a GRC who would be recognised as having a different sex, and trans people without a certificate who would not. This, the justices added, would create great difficulty for organisations and institutions bound by the Equality Act, who would have to set about trying to determine who had or didn’t have a certificate, a question they cannot ask directly because the information is private. Furthermore, conflating gender reassignment and sex would deprive lesbians of the right to have separate spaces and would also interfere with the provision of single-sex services in changing rooms, hostels, medical settings, communal accommodation and single-sex schools. The justices warned that interpreting sex as anything other than biological would hinder charities, women’s participation in sport, the public sector equality duty, and the armed forces.

The suggestion, advanced by the Court of Session, that ‘sex’ could carry a biological meaning in some parts of the Equality Act and a ‘certificated’ meaning in others, was rejected flat out by the Supreme Court. The meaning must be consistent. As such, a GRC does not make a man a woman (or vice versa) for the purposes of the Equality Act and, therefore, the Scottish government’s statutory guidance is wrong.

The terms of the ruling, and its unanimity, are perhaps starker than might be expected. There is, in the written judgement, an unmistakeable tone of concern over the confusion created by misinterpretation of the law and an urgency to bring clarity. And while the judgment represents a resounding victory for For Women Scotland and those who assert the importance of sex and gender remaining separate categories, the court is careful to note that the Equality Act continues to protect trans people from discrimination and harassment. One example given is that a female-identified man could bring an action for sexual discrimination on the basis that he is perceived to be a woman. The court also stresses that the Equality Act’s protections apply regardless of whether a trans person has a gender recognition certificate.

Any parsing of the judgment beyond this is best left to legal practitioners and scholars, but to this layman, the Supreme Court appears to have upheld both the correct interpretation of the law and the principle of non-discrimination. It is a victory for women, but one that does not strip trans people of a single right or protection.