UK Supreme Court rules on definition of a woman
For Women Scotland v Scottish Ministers
On Wednesday 15 April the UK Supreme Court handed down its judgment in respect of the definition of “sex” and a “woman” in the Equality Act 2010. An eagerly awaited judgment, and subject to much public discussion, debate and anticipation, the For Women Scotland v Scottish Ministers case, considered whether a trans woman with a Gender Recognition Certificate should be considered, for the purposes of the Equality Act, a woman.
The Court found it did not. It stated that the definition of woman and sex in the Equality Act means a “biological woman” and “biological sex”. This means that trans men and trans women with or without a Gender Recognition Certificate are, for the purposes of the Equality Act, the sex that they were born into, their biological sex.
The Court said it would be inconsistent with other parts of the Equality Act in relation to pregnancy, maternity and sex-based protections for a trans person with a Gender Recognition Certificate to be included within the definition of “sex”.
The Court stressed that trans people are protected by the protected characteristic of gender reassignment in the Equality Act. It is unlawful to discriminate against or harass a trans person because of their protected characteristic of gender reassignment.
The function of the Court is to interpret legislation which has been drafted by Parliament. This is why the judgment issued today was at pains to clarify that the principal question to be addressed was the meaning of words that Parliament has used when drafting the Equality Act. The Court clearly felt that parliament’s intention when drafting the legislation was for the meaning of the words sex and woman to be a biological ones.
Although the judgment is now issued, many questions still arise, and we are yet to see how this will play out in society. The debate regarding bathrooms, sports and single sex spaces is unlikely to disappear overnight. What is not clear is the legal effect of holding a Gender Recognition Certificate, if it does not change that person’s sex, for example.
Although this may be seen as a victory for some and a crushing defeat for others, perhaps now is the opportunity for Parliament to look again at how it walks the line between women’s spaces and trans rights, and how legislation can be drafted to enhance and uphold the rights of all. Clearly the unique experience of the trade union movement in advising and advocating for both trans members and those looking to uphold single sex spaces at work could feed into such considerations, making the conversation richer, fuller and reflect the real-world experience of ordinary working people.
Email Alice Bowman
Call us free on 0808 560 0872
Arrange a callback by using our enquiry form
Share this page
Call free: 0808 560 0872
