What is a woman? It's a question that has caught out even the most experienced of politicians in recent years. Well, for the purposes of interpreting the meaning of the Equality Act 2010, the Supreme Court has recently made up its mind.

For Women Scotland v The Scottish Ministers

For Women Scotland (a group that campaigns to strengthen the rights of women and children) brought this case in order to contest guidance published by the Scottish government, which suggested that a drive to increase the number of women on public boards included the appointment of some trans women.

In the course of the dispute, questions arose as to the meaning of words such as ‘woman’, ‘man’ and ‘sex’ when they are used in the Equality Act 2010. Do these words refer strictly to biological sex? Or would the definition of ‘woman’ include, in particular, a trans woman with a gender recognition certificate (GRC). It is worth noting that section 9(1) of the Gender Recognition Act 2004 (GRA) says that a woman with a full GRC becomes their acquired gender ‘for all purposes’. So, does this influence the definition of terms such as ‘woman’, when they are used in the Equality Act 2010?

The Supreme Court’s decision

The Supreme Court’s decision was, in many respects, very clear and very simple. The five Supreme Court Justices unanimously agreed that for the purposes of the Equality Act 2010, any reference to ‘sex’ is a reference to biological sex and the terms ‘man’ and ‘woman’ should be interpreted accordingly.

What is much less clear-cut is what this necessarily means for the rights of trans people more generally. Lord Hodge, who gave the leading judgment in this case, was at pains to emphasise the fact that their decision does not leave trans people unprotected under the Equality Act 2010. On the contrary, there are specific provisions within the act which protect from discrimination those employees who are proposing to go through, who are going through or who have undergone a gender reassignment process. Similarly, a trans woman who is perceived to be a biological woman and who is discriminated against as a consequence may also have a valid claim under the act. Nevertheless, those campaigning in favour of trans rights have expressed profound concerns about what this judgment might mean for the trans community as a whole. 

What next?

To some extent, the clarity offered by this judgment is to be welcomed. However, there remains the distinct prospect that all sides to this dispute could still end up dissatisfied. Those campaigning for greater trans rights will inevitably consider this judgment to be a blow to their cause. Indeed, we have already heard lawyers and campaigners talking about the prospect of taking an appropriate case to the European Court of Human Rights to contest the principles established by the Supreme Court’s decision. However, even those who might consider themselves to be on the ‘winning‘ side of this case may still end up being disappointed. Whilst the judgment has reasserted the importance of biological sex within our discrimination laws, these rights will still need to be balanced with those rights expressly afforded to the trans community. How this balance is to be struck in any given case is still a matter that could be hotly contested. 

Need a hand?

All in all, this is an area of law that is likely to continue to give rise to difficult and emotive disputes for many years to come. If you have a situation with which you need a hand, please get in touch.