The background
The case first caught attention following the publication of revised statutory guidance by the Scottish Government (Gender Representation on Public Boards (Scotland) Act 2018: statutory guidance (19 April 2022). The statutory guidance stated that the definitions of ‘man’ and ‘woman’ in the Equality Act 2010 (‘EqA 2010’) included those who had acquired the gender via a transition recognised under the Gender Recognition Act 2004.
For Women Scotland Limited (“FWS”) argued that the definition of ‘sex’ under the Equality Act 2010 referred to ‘biological sex’, not ‘gender’ and that the matter could not be legislated by the Scottish Government. The Inner House of the Court of Session ruled in favour of the Scottish Ministers, stating that ‘women’ as defined by the EqA 2010, extended to those who possess a full gender recognition certificate (GRC).
FWS were unhappy with the verdict of the Inner House and appealed to the Supreme Court. Introducing the case, Lord Hodge, Lady Rose and Lady Simler noted:
‘it is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word ‘woman’ other than when it is used in the provisions of the EqA 2010…’
The case before the Supreme Court was therefore focussed on a narrow point of law.
The Decision
Unanimously, the Supreme Court have ruled that the protected characteristic of ‘sex’ in the EqA 2010, refers to biological sex – not acquired gender or sex recognised through a Gender Recognition Certificate (GRC). In doing so, the Supreme Court have overruled the Scottish Courts.
What are the implications of the decision for trans people?
The decision means that trans women, whether or not they have a GRC, do not come under the definition of ‘woman’ for the purposes of the EqA 2010. However, the Supreme Court was keen to stress that they continue to be protected under the EqA 2010 by the protected characteristic of gender reassignment. Protection starts when an individual is proposing to undergo a gender reassignment process, continues while the individual is undergoing the process, and after they have changed gender. Further, there are provisions in place to ensure that individuals are not subjected to a detriment for taking time off due to the transition process.
It is important to reiterate that despite the judgment, the EqA 2010 continues to protect all trans people against discrimination, based on gender reassignment, and will continue to do so.
What does this mean for employers?
Employers will need to consider their policies and procedures carefully to ensure that they align with the judgment. In particular, those with single-sex policies in relation to changing rooms and toilet facilities will need to review their policies to ensure compliance. Other policies may also need to be reviewed, such as those relating to pregnancy, maternity, gender identity and menopause.
Employers should be mindful that they must continue to ensure all staff, including any trans members, are treated with dignity and fairness and are protected from discrimination and harassment. They should also be mindful that the judgment may have had a considerable impact on any of their trans members of staff given the media attention and ongoing ‘clarifications’ to guidance and practices. Employers should take proactive steps to reiterate their commitment to diversity, equity and inclusion for all staff and maintain open communications for concerns, from all staff, to be addressed.
