Defining ‘sex’ in the Equality Act 2010 — Inside the For Women Scotland v the Scottish Ministers appeal

After several years of legal argument and contestation, set against the background of an ever-changing political context, For Women Scotland v the Scottish Ministers reached the highest court in the land, writes Lindsay McCosh (solicitor at Balfour+Manson LLP and a member of the team acting for the appellant).

In November 2024, the UK Supreme Court heard parties’ arguments in relation to a singular question of statutory interpretation: does a person with a gender recognition certificate that recognises their gender as female fall within the definition of ‘woman’ in the Equality Act 2010?

While the judgment of the Supreme Court is awaited, questions about the definition of ‘sex’ and the status of transgender people under the Equality Act continue to arise in tribunals and courts across the UK. This article will provide a reminder on the background to the case, and set out a brief summary of the parties’ arguments and some of the key issues which require to be determined.

Background

This case arises from the Gender Representation on Public Boards (Scotland) Act 2018. The Act introduced positive action measures that seek to increase the representation of women on boards of Scottish public authorities. Initially, the Act defined a ‘woman’ as including a person with the protected characteristic of gender reassignment if “the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”.

Campaign group For Women Scotland raised judicial review proceedings seeking to challenge this definition of ‘woman’. In February 2022, the Inner House of the Court of Session held that the definition was outwith the legislative competence of the Scottish Parliament, as it conflated and confused two separate and distinct protected characteristics. The definition impinged on the nature of protected characteristics, which is a reserved matter. Accordingly, the definition was ‘not law’ in terms of the Scotland Act 1998, and it was reduced along with the associated statutory guidance.

In April 2022, the Scottish Ministers issued revised statutory guidance, which states that ‘woman’ has the same meaning as it does under sections 11 and 212(1) of the Equality Act and, “in addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man”.

This statutory guidance is the subject of the present judicial review proceedings. For Women Scotland were unsuccessful at first instance and on appeal in the Inner House, which brings us to the current appeal in the Supreme Court.

Arguments presented by the parties

The appellant: For Women Scotland

The appellant submits that the Scottish Ministers’ position (as reflected in the revised statutory guidance) is wrong as a matter of law, and that ‘sex’, ‘man’ and ‘woman’ in the Equality Act are always a reference to the facts of immutable biology.

The appellant asks the court to take into account the “omnipresence of patriarchy” – the historic, institutionalised and legalised discrimination against women in the UK – as relevant context for the proper interpretation and application of the Equality Act.

In support of its position, the appellant makes the following arguments:

• The Equality Act is a later, broader and constitutionally more significant measure than the Gender Recognition Act 2004 (GRA). It regulates discrimination by the state and between private individuals. Conversely, the GRA essentially concerns the vertical relationship between individuals and the state, and constitutes a targeted response to Goodwin v UK and Bellinger v Bellinger.
• Further to the submissions by the Equality and Human Rights Commission (an intervener), the appellant highlights the significant difficulties in operating the Equality Act if the Scottish Ministers’ interpretation is correct. For example, the pregnancy of a person with a gender recognition certificate (GRC) recognising them as a man would fall outside the pregnancy and maternity protections in the Equality Act.
• The Scottish Ministers have relied on section 9(1) of the GRA (which states that where a GRC is issued, the person’s gender becomes for all purposes the acquired gender) without due reference to section 9(3), which expressly makes this subject to provision made by any other enactment or subordinate legislation. The appellant submits that the provisions of the Equality Act take precedence over the legal fiction in section 9(1) of the GRA.
• The exceptions in the Equality Act in relation to gender reassignment discrimination cannot be made to work if ‘sex’ means ‘certificated sex’. The appellant submits that Parliament clearly intended to allow for the exclusion of people with the protected characteristic of gender reassignment (regardless of GRC status) to allow for single-sex provision in areas such as sport, single-sex services and communal accommodation.
• If a GRC has the effect of creating a ‘sex change’, this impacts on the meaning of sexual orientation discrimination in the Equality Act, and undermines the ability of lesbian and gay people to form associations based on biology.

The respondent and first interested party: the Scottish Ministers and the Lord Advocate

Conversely, the respondent and first interested party’s position (hereinafter, the respondent) is that ‘woman’ in the Equality Act includes a person with a full GRC in the acquired gender of female, and excludes a person issued with a full GRC in the acquired gender of male. On that basis, the respondent submits that the statutory guidance is within devolved competence and is lawful, and the appeal should be refused.

In asserting this position, the respondent relies on the following:

• Section 9(1) of the GRA, when read with section 9(2) (which states that the section 9(1) presumption operates for the interpretation of enactments passed, and instruments and other documents made before the GRC is issued, as well as those passed or made afterwards), creates a dual-facing presumption of statutory interpretation. This presumption applies to the Equality Act and the Gender Representation on Public Boards (Scotland) Act 2018 absent express provision to the contrary in terms of section 9(3).
• For the purposes of statutory construction, Parliament is to be assumed to have legislated in the knowledge of the existing state of the law (in particular, the effect of the GRA).
• The Equality Act effected limited repeals of provisions of the GRA, which supports the conclusion that Parliament did not intend to affect the operation of the GRA in the sphere of anti-discrimination law.
• To the extent that the effects of section 9(1) of the GRA give rise to difficulties of interpretation, they are either surmountable or do not displace the presumption. For example, the pregnancy and maternity provisions are capable of being interpreted to apply to a ‘pregnant man’, or alternatively the man could bring a claim of direct discrimination on the grounds of gender reassignment. In relation to single-sex service provisions, these permit gender reassignment discrimination, meaning that it would be possible to exclude a woman from a woman-only space where the person holds a GRC (if it were proportional).
• The respondent’s interpretation means that an association of lesbian women would not be able to exclude a person with a GRC in the acquired gender of female who was attracted to women (where the association included more than 25 people). The respondent submits that the intention of Parliament, objectively construed, was for such a person to be considered a woman.

The interveners

In addition to the main parties to the appeal, the Supreme Court granted permission to intervene to four parties: Sex Matters Limited; Scottish Lesbians, the Lesbian Project and LGB Alliance (hereinafter, the Lesbian Interveners); the Equality and Human Rights Commission (EHRC); and Amnesty International UK. Each party filed written submissions, and Sex Matters and the EHRC were also granted permission to make oral submissions during the November hearing.

By way of brief summary, the Sex Matters and Lesbian Interveners’ arguments are broadly in agreement with For Women Scotland. One distinction raised by Sex Matters is that the definition of gender reassignment in the Equality Act, which refers to “reassigning [a] person’s sex by changing physiological or other attributes of sex”, conflates sex and gender, and is therefore a sui generis provision in the Equality Act which does not fit within either side’s interpretation. Additionally, the Lesbian Interveners made specific submissions in relation to the effect on the convention rights of same-sex attracted women if ‘sex’ and ‘sexual orientation’ are interpreted in the manner proposed by the Scottish Ministers.

The EHRC occupied a nuanced position on this knotty legal question. While maintaining its longstanding view that the correct understanding of ‘sex’, ‘man’ and ‘woman’ in the Equality Act includes those whose sex has been certified in a GRC, it acknowledged that the appellant has highlighted significant difficulties, tensions and inconsistencies created by this interpretation that seriously compromise the practical application of the Equality Act. The EHRC considers that these difficulties have the potential to jeopardise the rights and interests of women, and submits that it would be appropriate for Parliament to resolve these issues.

Finally, Amnesty’s submissions highlight the human rights principles and values in the Strasbourg case law which inform the intent behind the GRA. Amnesty considers that the Scottish Ministers’ construction is required by EU sex discrimination jurisprudence applicable to the Equality Act, which holds that sex cannot be given a purely biological meaning. 

Conclusion

At the conclusion of the hearing in November, the Supreme Court adjourned to consider the detailed submissions made by the parties and the relevant law. For the moment, there is nothing left to do but await the Supreme Court’s judgment. In amongst the controversy and contention in this legal landscape, one matter that might be agreed by all is that the outcome of this case will affect people, service providers and public bodies throughout the UK as they grapple with the balancing exercise inherent to equality law.

Further reading – written cases for the parties

• For Women Scotland
• The Scottish Ministers and the Lord Advocate
• Sex Matters Limited
• Scottish Lesbians, the Lesbian Project and LGB Alliance
• Equality and Human Rights Commission
• Amnesty International UK

Written by Lindsay McCosh, solicitor in the public law, judicial review and human rights team at Balfour+Manson LLP. Balfour+Manson LLP acted on behalf of the appellant in this case.