In a landmark ruling, the UK Supreme Court has addressed the complex interplay between the Equality Act 2010 (EA 2010) and the Gender Recognition Act 2004 (GRA 2004), specifically concerning the legal definition of “woman”. The case, For Women Scotland Ltd v The Scottish Ministers [2024] UKSC 29, clarifies how these acts interact. This is particularly in the context of positive action measures aimed at increasing women’s representation on public boards.
Background of the Case
For Women Scotland Ltd, a feminist organization, brought the appeal against the Scottish Ministers. The case centred on the statutory guidance issued under the Gender Representation on Public Boards (Scotland) Act 2018. The core legal issue was whether a trans woman holding a Gender Recognition Certificate (GRC) should be automatically considered a “woman” for all purposes under the EA 2010, or whether the EA 2010 refers to biological sex, irrespective of a GRC.
Key Legal Issue: Interpreting “Sex” in the Equality Act
The Supreme Court was tasked with interpreting the terms “sex,” “man,” “woman,” “male,” and “female” as used within the EA 2010. The court meticulously examined Section 9 of the GRA 2004. This generally states that a person’s legal gender becomes their acquired gender upon receiving a GRC. However, the court also acknowledged exceptions to this rule and considered the broader context of the EA 2010.
The Supreme Court’s Decision
The judgment, delivered by Lord Hodge, Lady Rose, and Lady Simler, with agreement from Lord Reed and Lord Lloyd-Jones, provided a nuanced interpretation. The court emphasised the importance of adhering to the specific wording used by Parliament and the overall legislative intent behind both the EA 2010 and the GRA 2004.
The court ruled that while the GRA 2004 allows individuals to change their legal gender, this does not automatically redefine “sex” as it is used in all contexts within the EA 2010. The ruling acknowledged that “sex” in the EA 2010 can, in some instances, refer to biological sex. The court rejected arguments that a trans woman with a GRC must always be treated as a woman for all purposes under the EA 2010.
Implications of the Ruling
This decision has significant implications for the application of the EA 2010. It clarifies that the definition of “sex” is not solely determined by the GRA 2004 and that biological sex remains a relevant consideration in certain contexts under the EA 2010.
Specifically, the ruling impacts how public bodies and service providers apply the EA 2010, particularly in areas such as:
Employment: The decision may influence policies related to recruitment, promotion, and workplace accommodations.
Service Provision: The ruling could affect how services are tailored and delivered, especially where sex-specific services are involved.
Positive Action Initiatives: The judgment clarifies the scope of positive action measures aimed at addressing historical disadvantages faced by women. The Supreme Court’s judgment seeks to strike a balance between protecting the rights of women and the rights of the trans community. It provides a more coherent and predictable framework for interpreting the law, aiming to avoid unintended and potentially discriminatory outcomes. The ruling also underscores the importance of carefully construing statutory deeming provisions within their specific context. This case serves as a crucial reminder of the complexities surrounding gender identity and the need for a nuanced approach when applying equality legislation.
