Introduction
This has been clarified by the Supreme Court in the case For Women Scotland Ltd v The Scottish Ministers. This case centred on the legal definition of “woman” under the Equality Act 2010 but also, more specifically, its application within Scottish legislation, particularly the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act). However, this decision has a much wider implications for the interpretation of transgender individuals’ rights generally, including within the workplace.
The 2018 Act’s aim was to improve the gender balance on public sector boards in Scotland by setting representation targets for women. The Scottish Government’s guidance specified that, in calculating the gender balance of boards, the definition of “woman” or women is the same as that in the Equality Act 2010; but it also went on to say specifically that trans women [individuals assigned male at birth who have transitioned to female] who possess a Gender Recognition Certificate recognising them as female, should be included in the women / female headcount when the figures are calculated.
The women’s rights organisation, For Women Scotland Ltd challenged this inclusion arguing that the definition of “woman” under the Equality Act means ‘biological sex’ ie sex at birth.
The issues in the case have been the subject of much interest and controversy, which was highlighted by the fact that, in addition to the two key parties, there were several high profile ‘interveners’; bodies with a vested interest who were allowed to participate and make representations on their own behalf or in the public interest. Whilst more applied to intervene, the court permitted four additional parties to provide written submissions. These included various lesbian rights groups, the Equality and Human Rights Commission and Amnesty International.
The Equality Act 2010 (the Equality Act)
The Equality Act states that it unlawful to discriminate because of nine protected characteristics. One of those characteristics is sex, i.e. because of being a ‘man’ or a ‘woman’, which are defined in section 212(1) Equality Act: “man” or “woman” “means a male or female of any age”.
The Equality Act also provides that gender reassignment or being a transsexual person is another of the protected characteristics. To be protected an individual must undergo, be undergoing, or propose to undergo a process to “reassign [their] sex by changing physiological or other attributes of sex” (section 7(1) Equality Act). It is established that this can be a personal process; it need not necessarily be a medical or legal process. For example, hormone treatment, surgery or a Gender Reassignment Certificate – see below - are not needed for a person to be protected as a transgender individual under the Equality Act.
The Gender Recognition Act 2004 (the GRA)
The GRA provides that an adult who is living in a gender different from their birth gender may apply for a Gender Recognition Certificate (GRC). Their application will be assessed by a Gender Recognition Panel, and any application must be supported by medical evidence.
Once a GRC has been issued the GRA states at section 9(1) that “the person’s gender becomes for all purposes the acquired gender”. It then goes on to say 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”. Crucially, however, section 9 (3) of the GRA provides that this is “subject to provision made by … any other enactment”.
The decision
The question for the Supreme Court was whether, if an individual becomes “for all purposes” their acquired gender upon the receipt of a GRC, does that include when they claim protection under the Equality Act for alleged discrimination on the grounds of their [acquired] sex? Or does the ‘carve out’ in section 9(3) GRA mean that the effect of a GRC is “subject” to a strictly biological interpretation of sex under the Equality Act 2010?
The five Supreme Court judges decided unanimously that trans people with Gender Recognition Certificates are not treated as being of their acquired gender under the Equality Act 2010. They found that under the Equality Act, a ‘man’ is a biological man, and a ‘woman’ is a biological woman.
Therefore, trans people, even those with GRCs, are not treated as being of their acquired gender when considering sex discrimination issues under the Equality Act. A GRC has no effect on a person’s sex as statutorily defined.
Accordingly, the Court ruled that the Equality Act, properly interpreted, is inconsistent with section 9(1) of the 2018 Act and therefore the section 9(3) carve out does apply.
The Court also went on to decide that it is not correct to differentiate between those trans individuals with a GRC and those without, so the decision applies to all trans individuals irrespective of whether they hold a GRC or not.
The Court went on to further explain its decision by stating that a biological interpretation of “sex” is necessary for coherency, clarity and practicality for those with obligations to provide single sex spaces and services under the Equality Act. These include changing rooms, hostels / accommodation, medical services, single sex associations and charities, women’s fair participation in sport, public sector equality duty and the armed forces.
In delivering its judgment, the Court stressed that its decision does not mean that trans individuals are not protected under the Equality Act. It reiterated that trans people are protected from discrimination on the ground of gender reassignment per se, but are also protected against direct discrimination, indirect discrimination and harassment on the ground of perception or association with their acquired sex / gender.
The Court gave the example of a transwoman who is refused a job because she is perceived to be a biological woman. She would have a claim for direct discrimination because of her perceived sex, her claim would be treated in the same way as a direct discrimination claim made by a biological woman based on her sex. In this case her comparator would be someone who is not perceived to be a woman.
Consequences and reaction
Whilst not welcome in the trans community, the decision provides legal clarity for employers and service providers which was much needed.
Recognising the emotive and divisive nature of the issues at the heart of the case, Lord Hodge the Supreme Court Judge who delivered the decision, acknowledged that there would be parties and their supporters who would be disappointed and those who will be pleased. He called for all to respect the dignity of the court and also “counsel[led] against reading [the] judgment as a triumph of one or more groups in society at the expense of another, it is not”. This seems to have fallen on deaf ears as, inevitably, mainstream and social media have rung with headlines of “triumph” and “victory” for womens’ rights over trans rights; and some groups on either side of the debate remain entrenched and very far apart.
Comment: What next and what do employers need to do?
It is against this challenging backdrop that employers now need to navigate a review of their polices regarding single sex spaces in the workplace; for example men’s and women’s toilets and changing facilities.
The EHRC has issued a statement saying it will revise its Code of Practice which it says “subject to ministerial approval, is expected to be laid before parliament before the summer recess”.
In the meantime, employers will need to ensure that all employees, including transgender employees, are comfortable in using the facilities and in particular transgender employees do not feel isolated or uncomfortable. The most important take away from this decision is the need to have an inclusive workplace for all workers irrespective of their protected characteristics.
The Supreme Court’s judgment and press statement are here:
For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent)
For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) - UK Supreme Court
The EHRC’s statement is here:
EHRC statement on Supreme Court ruling in For Women Scotland v Scottish Ministers | EHRC
