Following lengthy legal proceedings in the case of For Women Scotland v The Scottish Ministers, the Supreme Court has handed down its ruling that under the Equality Act 2010, ‘sex’ means biological sex and that the meaning of a “woman” does not include a trans woman with a Gender Recognition Certificate (“GRC”).

Background to the Case

The legal issue emerged following a Scottish government initiative in 2018 which aimed to improve female representation on public boards. At the time the initiative was launched, transgender women with a GRC were considered, for the purpose of the Gender Representation on Public Boards (Scotland) Act 2018 (“ASP 2018”), to fall within the definition of a “woman”. According to the accompanying statutory guidance, this therefore brought transgender women with a GRC within the definition of a ‘woman’ under the Equality Act 2010.

In 2020, For Women Scotland Ltd, an organisation that campaigns to strengthen women’s rights in Scotland, subsequently challenged the government guidance. This resulted in new statutory guidance being issued which stated that, under the ASP 2018, the definition of a “woman” is the same as that within the Equality Act 2010. Specifically, section 212 of the Equality Act 2010 defines a “woman” as “a female of any age”. The new statutory guidance further states that a person with a GRC which recognises their gender as female is considered to be a woman for the purposes of the ASP 2018.

For Women Scotland Ltd further challenged the new statutory guidance in 2022, advancing the argument that the definition of a “woman” under the Equality Act 210 refers to biological sex, therefore a trans woman with a GRC is not considered a woman under the Equality Act 2010 and the ASP 2018. This was the issue to be determined by the Supreme Court.

The Supreme Court Decision

The Supreme Court unanimously allowed the appeal by For Women Scotland Ltd and held that within the Equality Act 2010, the terms “man”, “woman” and “sex” refer to biological sex.

In its eighty-eight-page ruling, the Supreme Court concluded this interpretation was necessary for the purposes of provisions on maternity and pregnancy and allowing GRC certified sex to count within these definitions, would impact the coherence of the statutory provisions in relation to other sex-based protections. The Court also emphasised the need for the Equality Act 2010 to be interpreted in a clear and consistent way to enable the identification of protected groups, but confirmed that it was not appropriate to include different definitions of sex for different parts of the Act.

In its judgment, the Supreme Court clarified that this decision does not reduce the protections afforded to trans people under discrimination laws. It is important to note that the Equality Act 2010 recognises and protects those with the characteristic of gender reassignment. Furthermore, trans people are also protected by the law relating to direct discrimination and harassment through discrimination by association.

ECHR Guidance

Following the Supreme Court’s decision, the Equality and Human Rights Commission (“ECHR”) has issued interim guidance regarding the main consequences of the judgment. This guidance has reiterated that it is compulsory for employers to provide sufficient single-sex toilets in the workplace and, where required, single-sex washing and changing facilities for workers.

The guidance further states that in workplaces and services that are open to the public, trans women should not be permitted to use facilities designated for women and trans men should not be permitted to use men’s facilities. Where there are facilities available to both men and women, however, the guidance states that trans people should not be put in a position where there are no facilities for them to use.

The ECHR has also confirmed that it intends to provide an updated Code of Practice to the UK Government which will support service providers, public bodies and associations to understand their duties under the Equality Act and put these into practice.