Supreme Court clarifies definition of ‘woman’ under Equality Act 2010 in landmark ruling

In a landmark case, the Supreme Court has ruled that the definition of ‘woman’ for the purpose of the Equality Act 2010 (EqA 2010) means a ‘biological woman’ and does not include an individual with a Gender Recognition Certificate (GRC) that states that they are a woman.  This decision addresses only the narrow issue of the relevant definition in the Act, but it could have far wider implications across society in areas such as single-sex spaces and participation in sports. 

The case was brought by the campaign group For Women Scotland against the Scottish government over legislation aimed at ensuring 50% representation of women on public boards in Scotland. Guidance produced by the Scottish government stated that a trans woman with a GRC would be treated as a woman and therefore included in figures for meeting this 50% threshold.

The Gender Recognition Act 2004 stipulates that an individual with a GRC should be treated as the gender stated on a relevant certificate unless legislation provides otherwise. The EqA 2010 does not expressly state otherwise, but the question before the Supreme Court was whether the references to ‘sex’ and ‘women’ in the EqA 2010 made more sense if they were read to mean a biological woman, and if so, does the EqA 2010 represent legislation that rebuts the position in the Gender Recognition Act. Clarification on this point could potentially have been provided without the need for a court case by an amendment to the legislation being passed by parliament, but perhaps because of the controversial subject matter politicians elected to allow the courts to make ruling on the meaning of the legislation as drafted rather than to intervene.

The Court concluded that ‘woman’, ‘man’ and ‘sex’ mean biological woman, man and sex under the EqA 2010.  The Court decided that extending the definition in any other way was unworkable particularly with regard to pregnancy and maternity related discrimination.   It also said that using a definition of sex which included certified sex, could weaken protections for other groups and gave the example of lesbians in lesbian only spaces along with single sex- spaces such as changing rooms and medical care. It was also of the view that including certified sex in the definition of sex would confuse the separate protections available and lead to divides in the trans community giving more rights to some sub-groups. 

The Court also sought to emphasise that transgender individuals continue to have protections through the protected characteristic of gender reassignment and sexual orientation under the EqA 2010. While this is true, there is now an urgent need for example, on further guidance on the use of single-sex spaces and the Equality & Human Rights Commission is currently working on an update Code of Practice which it hopes to publish in the summer.  

Although the decision of the Court was clear and unambiguous this is likely to remain a controversial topic for some time to come. But for the time being the key takeaways are:

• Under the Equality Act 2010 ‘woman’, ‘man’ and ‘sex’ mean biological woman, man and sex.
• A Gender Reassignment Certificate (GRC) does not reassign ‘sex’ under the Act.
• Separate protections remain available for trans individuals under the Equality Act 2010.
• Employers may need to review policies to ensure any positive action and single-sex services are applied based on biological sex.