The Supreme Court has handed down a significant ruling on the definition of “sex” within the Equality Act 2010.
This judgment came in respect of a long-fought dispute between campaign group For Women Scotland (FWS) and the Scottish Government, following the introduction of the Gender Representation on Public Boards (Scotland) Act 2018. The main contention was how the Gender Recognition Act 2004 interplays with the Equality Act 2010 when it comes to the definition of “sex”.
The unanimous decision of the court was that the terms “man”, "woman" and "sex" in the Equality Act 2010 refer to biological sex, concluding any other interpretation of the terms would render the Act incoherent and impracticable to operate.
To come to its conclusion, the Court had to consider the interpretation of both Acts and found the following:
- The Gender Recognition Act 2004 allows for the rule that a Gender Recognition Certificate (GRC) changes someone’s sex “for all purposes” to be disapplied by provisions in other legislation.
- The meaning of “sex” within the Equality Act 2010 needs to be consistent and, amongst other things, allowing certificated sex would blur the lines of the definitions of “man” and “woman”, making the protected characteristic of “sex” incoherent.
This judgment only specifically covers the definition of these terms in the Equality Act. As the judgment notes, it is not intended to weigh in on the arguments in the wider public domain on the meaning of gender or sex.
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Importantly, the judgment does not remove protection from discrimination for transgender people, with or without a GRC. Transgender people are still protected under the Act through the protected characteristic of gender reassignment and may also claim discrimination in their acquired sex.
EHRC Chair, Baroness Kishwer Falkner, says: “We are pleased that this judgment addresses several of the difficulties we highlighted in our submission to the court, including the challenges faced by those seeking to maintain single-sex spaces, and the rights of same-sex attracted persons to form associations."
The ruling by the court has an impact on access to single-sex spaces for transgender people. From an HR perspective, organisations will need to consider what this means for their toilet facilities and other similar arrangements like shower rooms etc. Once a proportionality assessment has been conducted, the ruling means transgender people can be excluded from single-sex spaces based on their biological sex.
However, organisations must still ensure all employees, including transgender people, have access to appropriate facilities and are able to work in an environment free from harassment. The Equality and Human Rights Commission (EHRC) is currently reviewing their guidance for organisations and the statutory code of practice on this which is expected to be available before summer 2025.
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