[Added: April 2025
Well the Supreme Court Decision is out and they have allowed the appeal and ruled that for the purposes of the Equality Act 2010, sex is determined biologically and not be reference to a Gender Recognition Certificate. I’m not a fan of the decision but we are where we are. I have written about what the Supreme Court held and why here: https://hrcentre.uk.brightmine.com/commentary-and-insights/the-definition-of-a-woman-the-legal-meaning-and-practical-implications-of-the-supreme-court-ruling/167641/]

This week the Supreme Court will hear the case of For Women Scotland Ltd v The Scottish Ministers. FWS (a campaigning organisation) are arguing that statutory guidance issued by the Scottish Government about the effect of the Gender Representation on Public Boards (Scotland) Act 2018 is unlawful. The guidance says that a woman includes someone born male but who now has a gender recognition certificate describing them as female. 

The case is not really about the 2018 Act, which only applies in Scotland. It is really about the meaning of ‘male’ and ‘female’ in the Equality Act 2010. This is because the 2018 Act was originally held to have gone beyond the powers of the Scottish Government by specifying that all trans women were women. This adopted a definition of the protected characteristic of sex that went beyond the Equality Act 2010 in which sex and gender reassignment are treated separately. As a result of that case the Scottish Government issued new guidance saying that woman had the meaning given to it by the Equality Act, but went on to say:

In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.

FWS are now challenging this part of the guidance arguing that it is incorrect. Their application to have it struck down was rejected by the Court of Session and will now be heard by the Supreme Court.

So the question is this: when The Equality Act 2010 refers to sex – to the question of whether someone is male or female – is it limited to biological sex or does it also refer to someone with a gender recognition certificate (GRC)? In other words, is a trans woman with a GRC treated as being of the same sex as someone who is biologically female? 

The argument that the Scottish Government’s guidance is right to say that she is has the advantage of being short and straightforward. S.9(1) of the Gender Recognition Act 2004 says:

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).

(emphasis added)

S.9(3) of the Act says that this provision is subject to provisions made in any other enactment, so the Equality Act 2010 could have expressly disapplied it – but did not. On that basis, the argument goes, the concept of sex in the Equality Act encompasses both the sex into which someone is born and also the sex that they are deemed to be once they have a GRC.

The arguments against this interpretation are long and complex. That doesn’t mean that they will fail. The Supreme Court would not have agreed to hear the case if they thought there was no point worth arguing. FWS has very helpfully made its written case publicly available. They don’t need to do this so it would be churlish to complain about the font it is written in or the extent to which it uses italics (less is more guys) – but reading it did make my head swim a bit.  It sets out a number of problems contradictions and anomalies that it says result from including individuals with a GRC as being members of the sex aligned with their gender identity.

I have to say that the problems that are relied on in the written case seem rather abstract and theoretical to me. I struggle to see how treating a trans woman with a GRC as a woman for the purposes of the Equality Act 2010 presents any real practical difficulty. 

Take direct discrimination for example. This depends not on the identity of the victim but the reason for the treatment complained of. It is direct sex discrimination to treat someone less favourably because they are a woman or because they are not a woman. But the Tribunal only has to decide what was going on in the mind of the discriminator. Whether the victim is actually a woman or not (and by what criteria you judge that question) doesn’t matter. The same goes for harassment. If there is unwanted conduct ‘related to’ the protected characteristic of sex or conduct of a sexual nature then that is enough if the conduct has the required effect on the victim. There is no need for a tribunal to decide whether or not someone with a GRC is either a woman or a man – the question does not arise. 

Indirect discrimination is slightly different. There we are looking at an unjustifiable ‘provision criterion or practice’ which places people who share a protected characteristic at a particular disadvantage. The question could arise as to whether a trans woman with a GRC shares the characteristic of being a woman with those who were born female. But it is hard to envisage a circumstance where the issue of whether such trans women should be counted as women would make a difference to the outcome. In their written submissions FWS argue:

For example, height requirements (such as used to be imposed for service in the police) would be likely to place women at a particular disadvantage. However, when men are included within the definition of woman, the nature of any actual disadvantage will inevitably be reduced (page 19)

The fact that the best example they can come up with is a condition that is no longer used is telling I think. But even if that requirement were still in effect I very much doubt that the whole population of trans women with a GRC would be sufficient to skew the statistics to the extent that women would no longer be disproportionately disadvantaged by a height requirement. 

Equal Pay raises an interesting question. To claim Equal Pay an employee must identify a comparator of ‘the opposite sex’. Suppose a trans woman with a GRC is paid less than a man. As I understand the FWS argument, she should not be able to claim equal pay because her male comparator would not be of the opposite sex. I have to say that the idea that a trans woman would be prevented from claiming in such circumstances strikes me as wrong. Surely if she has a GRC she should be accepted as being of the opposite sex of her male comparator? It is true that this means that a trans man with a GRC could not claim equal pay citing a man as a comparator – but would a trans man even want to bring such a claim?

What about occupational requirements? Part 1 of Schedule 9 of the Equality Act allows an employer to insist that a job should be done by a woman in circumstances where the nature or context of the work makes it an occupational requirement – and insisting on recruiting a woman is a proportionate means of achieving a legitimate aim. Suppose a man sought to challenge the employer’s use of that exception and argued that because a trans woman was given one of the available roles that meant that ‘being a woman’ was not really an occupational requirement? In theory I suppose the question of whether trans women counted as women under the Equality Act would then arise – but I really can’t see any Tribunal getting tangled up in that. Surely they would just say that irrespective of the legal definition of a woman, the employment of a trans woman in a role does not on its own show that being a woman is not an occupational requirement?

It would then follow that a trans man with a GRC could be lawfully excluded from a role reserved for women – but I’m not sure who would really find that objectionable. Imagine a trans man who has gone to the trouble of obtaining a GRC trying to get a job reserved exclusively for women and suing for sex discrimination when he is turned down. It just seems incredibly unlikely. The same principle would hold for shortlists for political parties or other forms of permitted positive action. 

Note that the Equality Act does allow an occupational requirement to exclude trans people when it is a proportionate means of achieving a legitimate aim to do so (Schedule 9, para 3). So if the employer thought that a job could only be done by a woman but could not be done by a trans woman and could justify that choice then that too could be lawful. Defining trans women as women would not make a difference to that argument.

The same is true for the provisions relating to single sex accommodation and facilities. These can be reserved for women but does that mean that such services must not exclude trans women with a GRC? The Court of Session pointed to provisions which allow discrimination based on gender reassignment in such services where that is a proportionate means of achieving a legitimate aim. FWS argue in their written case that the Court was wrong about that and that employers or service providers would not be able to make that distinction– but I have to admit that I can’t quite follow their argument. It’s at page 40 of their written case so have a look for yourself and see what you think. 

[Edit: I’ve just had another look at this and I think I get it now! – see the PS at the end of the post]

I do see a potential issue with the rules on associations. Schedule 16 of the Equality Act allows for associations to be restricted to people who share a protected characteristic. So a lesbian support group could lawfully exclude people who were not lesbians. FWS argues that a trans woman with a GRC who is attracted to women would have to be accepted as a lesbian if the Equality Act treated her as a woman. I think that is probably right – there is no exception in the Act allowing for gender-reassignment discrimination in such a case. But is that position obviously objectionable? I do not want to speak for others but I suspect that there may be disagreement among lesbians as to whether a trans woman attracted to women should be regarded as a lesbian or not.  I also very much doubt that the Supreme Court will want to be drawn into ruling on the legal definition of a lesbian.  

One issue that was relied on in the Court of Session relates to maternity discrimination. Section 18 of the Equality Act says that “a person discriminates against a woman if… in relation to a pregnancy of hers” the person treats her unfavourably (emphasis mine – obviously). This section (and the similarly worded S.17 which deals with non-work cases) clearly refers to the claimant as being a woman. But what if a trans man had a GRC and was pregnant? If the guidance issued by the Scottish Ministers is right, he would be a man rather than a woman and so, the argument goes, unable to claim pregnancy discrimination.

I want you to imagine the look on the Employment Judge’s face as you explain that your employer client was not guilty of pregnancy discrimination because the employee they dismissed for being pregnant had a gender recognition certificate which meant that they were not a woman and therefore barred from claiming. In its written case FWS says that this argument would have to succeed (pages 34/35). The Court of Session disagreed. with that reasoning, saying that what matters in that scenario is the fact of the pregnancy and the use of the term ‘woman’ in that context could be given a purposive interpretation so that a trans man with a GRC could still claim. My instinct is that the Court of Session is right about that. But in any event I suspect the Supreme Court would not want to make a definitive ruling on such a hypothetical case. 

And that, I think, may be a key point. We should remember that this case is about statutory guidance given by the Scottish Government about a Scottish Act dealing with gender representation on public boards. I struggle to see the Supreme Court being keen to engage in a lengthy legal analysis of hypothetical discrimination claims – unlikely to arise in practice – in order to decide whether that guidance is accurate or not. I think the most straightforward approach is to say that the guidance is lawful – because it is in accordance with the clear wording of the Gender Recognition Act and that although Parliament could have qualified that wording in the Equality Act it chose chose not to do so. If that means that there are some potentially difficult cases that may then arise in the interpretation of the Equality Act then we can wait for an actual case to crop up in real life before deciding the point.  

One of the really great things about the Supreme Court is that cases are livestreamed. I will certainly be watching (here) and it may be possible to get a sense of what the Court thinks as the arguments play out. It is also perfectly possible that as the argument unfolds I will realise that I have missed a key point that could affect the outcome.  If that happens I’ll write a postscript below.

Postscipt

As I mention above, in response to a comment below I have had another think about the issue of gender reassignment discrimination in relation to service provision.

Suppose a service provider objects to providing intimate care to a trans woman with a GRC. Could they object to doing so on the grounds of gender reassignment? Under paragraph 28(1) of Schedule 3 of the Equality Act they would have to argue that doing so is a proportionate means of achieving a legitimate aim. But their actions would have to relate to one of the following ‘matters’

(a)the provision of separate services for persons of each sex;

(b)the provision of separate services differently for persons of each sex;

(c)the provision of a service only to persons of one sex.

I think that FWS must be arguing that since the trans woman with a GRC would be deemed to be a woman, the service provider could not claim that refusing to serve her was something done in relation to the provision of a service only to persons of one sex.

I accept that there is something to that. But it is surely it would at least be arguable – if such a case arose – that the conduct at related to the provision of same sex services? It certainly does in the mind of the service provider. I am sure that any lawyer representing a service provider in such a case would mount a spirited argument to that effect. FWS, however, regards such an argument as completely impossible – which seems rather defeatist. On balance I don’t think this changes my overall view that the Supreme Court is unlikely to want to get entangled in ruling on such hypothetical cases – but we shall see.