Breaking news: sex in the Equality Act 2010 means biological - not certificated sex

The Supreme Court has today handed down its judgment in For Women Scotland v The Scottish Ministers. It has unanimously held that references to the terms man and woman in the Equality Act 2010 refer to biological sex. This means that someone who obtains a gender recognition certificate to change their legal sex, is treated in line with their biological sex for the purposes of that Act.

Background to the case

This is not an employment case. The issue arose from an initiative to improve female representation on public boards. The Scottish government issued guidance in 2018 which said that a woman includes someone who was born male but now has a gender recognition certificate (GRC).

The Supreme Court said that guidance is incorrect. But its decision has wide ranging implications which go beyond the legality of the Scottish government's guidance. 

Reasons for their decision

The Supreme Court said interpreting who is a woman or a man in the Equality Act boils down to its ordinary meaning. If sex meant legal sex (which could be either birth sex or certified sex) it would cut across the protections afforded to people based on their sex in an incoherent way. 

It said that the Equality Act needs to be interpreted in a clear and consistent way in order that groups which share a protected characteristic can be identified by employers and other organisations who have obligations under it. 

The Supreme Court was particularly concerned that interpreting sex as legal sex would create two sub-groups for those people protected under the gender reassignment provisions and would give trans people with a GRC greater rights than those without a certificate. That would create particular difficulties for employers, and other organisations, as they wouldn't have an obvious means of distinguishing between the two groups, particularly as they can't ask if someone has a GRC as that information is private.

The court also acknowledged that using legal sex would weaken protections against sexual orientation discrimination and, in particular, interfere with the ability to have lesbian only spaces and associations.

The court was at pains to point out that its decision does not leave trans people unprotected. They will continue to be protected from discrimination on the ground of gender reassignment if they are disadvantaged because they are trans. In addition, a trans woman will be able to bring claims of direct sex discrimination or harassment if they are perceived to be a woman or because they associate with women and vice versa. 

Implications for employers 

The Supreme Court's judgment impacts single sex and separate sex services, clubs and associations provided for users of a particular sex and competitive sport. 

In the context of employment law it's now clear that: 

• employers that wish to appoint a woman to a particular role where they have a genuine occupational reason will be able to exclude trans women, even if they have a GRC (and vice versa) 
• positive action measures aimed at supporting women must not include trans women
• public bodies that are subject to the public sector equality duty must consider women's needs and recognise women and men as coherent groups based on sex; and
• comparators in a sex discrimination case are now clear  

The last point appears to have caused particular difficulties. The correct comparator is a person who doesn't have the protected characteristic of gender reassignment but should be the same in all other material respects. So if the claimant is male, the correct comparator must also be male. For example, if an employer only allowed biological women to use its female changing area and denied access to a trans woman who then brought a direct discrimination claim the correct comparator would be a man. The relevant question then becomes has the trans woman been treated less favourably than any other biological man? The answer is clearly, no.

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