What is a woman (or a man)?

That is the issue the Supreme Court is currently hearing arguments about in the case of For Women Scotland v The Scottish Ministers.

Background to the case

This is not an employment case. It's about whether guidance issued by the Scottish government which says that a woman includes someone who was born male but now has a gender recognition certificate (GRC) describing them as female is legally correct.

The Supreme Court has been asked to determine whether references to the word sex in the Equality Act 2010 should be read as being modified by a GRC and specifically, the meaning of these words contained in s9(1) of the Gender Recognition Act 2004:

‘Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).’

An earlier decision on this case (which is binding in Scotland and persuasive in England and Wales) held that the definition of sex is not limited to biological or birth sex.

How does the Equality Act describe sex?

Sex refers to a person being either a man or a woman and man means a male of any age and woman a female of any age. Those descriptions are lifted from the Sex Discrimination Act 1975. Prior to the introduction of the Gender Recognition Act, it's commonly accepted that this referred to biological sex although that term isn't used anywhere in the Equality Act or its predecessor. 

Why does this matter?

In many cases it doesn't. People are protected against less favourable treatment on the grounds of sex, gender reassignment and other protected characteristics if they face direct discrimination or harassment. Someone with or without a GRC who believes that they have been treated unlawfully because they are trans will be able to rely on the gender-reassignment provisions to advance their case. Their legal sex will largely be irrelevant to that determination.

But, there are some circumstances where sex matters. The Equality Act contains a number of exceptions to the ‘non discrimination’ rules. In the context of sex, these allow an employer/service provider to offer single sex services and to restrict job applications to people of a particular sex if there is a genuine occupational requirement for the job to be undertaken by someone of that sex. There are others, but I'm focussing on these two in this blog.

An employer who wants to rely on these exceptions must have a legitimate aim and demonstrate that the measures they have taken to achieve it are proportionate. 

These exceptions are in place because parliament recognised that equality doesn't always mean treating everyone in the same way, and sometimes it is necessary to remove barriers or address particular disadvantages suffered by one group.

If sex in that context means legal sex does that mean that people who have a GRC have an absolute right to use services restricted to users of their acquired gender and apply for positions limited to a particular sex? Not necessarily, but the law isn't entirely clear on this point and many employers worry that if they exclude people with a GRC they will be sued. 

The EHRC issued guidance on discriminatory adverts in September this year which says that: 

The Equality Act 'also permits an occupational requirement to exclude transgender persons where it is objectively justified, and this can include those who have obtained a GRC.’

And, the explanatory notes to the Equality Act give an example of a counsellor working with victims of rape which may have to be a woman (and not a trans woman), even if they have a GRC in order to avoid causing further distress to victims.

When will judgment be handed down?

The case concluded on 27 November 2024 and we expect the Supreme Court to hand down its decision in the new year.

It's possible that the Supreme Court can decide this case without having to provide definitive guidance on what sex actually means. I hope they don't take this option, not least because employers, service providers and their users need legal certainty about what a woman (or man) means.  

Not everyone agrees with me on this. Melanie Field has written a powerful article which argues that the law is already clear but is not being implemented and enforced in line with the Equality Act. She argues that if sex means biological sex, new exceptions will need to be created to deal with the unintended consequences for trans people.

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