Employment Law Cases

For Women Scotland Ltd v The Scottish Ministers

The legal definition of a ‘woman’ under the Equality Act 2010 is based on biological sex.

Background

For Women Scotland Ltd (FWS) campaigns for the strengthening of women’s rights in Scotland. In February 2022, FWS brought judicial review proceedings challenging the definition of ‘woman’ in s. 2 of the Gender Representation on Public Boards (Scotland) Act 2018. This section defines ‘woman’ as including a transgender woman. FWS argued that this went beyond the legislative competence of the Scottish Parliament.

FWS was initially unsuccessful but succeeded on appeal to the Inner House of the Court of Session. Scottish ministers then produced revised statutory guidance, which provided that the word ‘woman’ for the purposes of the 2018 Act has the same meaning as in s. 11 and 212(1) of the Equality Act 2010 (EA 2010). It further stated that, where a full gender recognition certificate (GRC) has been issued to a person, the person’s sex is that of their acquired gender in accordance with s .9(1) of the Gender Recognition Act 2004 (GRA 2004).

FWS brought further judicial review proceedings against the Scottish ministers in relation to the revised guidance. It contended that the definition of ‘woman’ in the Equality Act should be taken as a reference to a biological woman. This was unsuccessful. FWS appealed unsuccessfully to the Inner House of the Court of Session. FWS appealed further to the Supreme Court.

Supreme Court decision

The appeal was unanimously allowed.

There is no provision in the EA 2010 that expressly addresses the effect of s. 9(1) of the GRA 2004. Because of this, the Supreme Court undertook a careful analysis of the provisions of the EA 2010 to decide whether they indicate that a biological meaning of sex is intended and/or that a certificated sex definition (under the GRA 2004) would render these provisions incoherent or absurd.

As a matter of ordinary language, the provisions relating to sex discrimination can only be interpreted as referring to biological sex. For example, the provisions relating to pregnancy and maternity are based on the fact of pregnancy and giving birth to a child. As a matter of biology, only biological women can become pregnant. Therefore, these provisions are unworkable unless ‘man’ and ‘woman’ have a biological meaning. Interpreting ‘sex’ as certificated sex would cut across the definitions of ‘man’ and ‘woman’ and thus the protected characteristic of sex in an incoherent way.

The EA 2010 needs to be interpreted in a clear and consistent way in order that groups which share a protected characteristic can be identified by employers and other organisations who have obligations under it.

The Supreme Court was particularly concerned that interpreting sex as certificated sex rather than biological sex would create two sub-groups for those people protected under the gender reassignment provisions and would give trans people with a GRC greater rights than those without a certificate. That would create particular difficulties for employers, and other organisations, as they wouldn't have an obvious means of distinguishing between the two groups, particularly as they cannot ask if someone has a GRC as that information is private.

The Supreme Court also took into account that a certificated sex interpretation would weaken the protections given to those with the protected characteristic of sexual orientation – for example, by interfering with their ability to have lesbian-only spaces and associations.

Comment

Such decisions often generate misleading reporting. This case does not say that trans women are not women full stop. It’s far more nuanced. The Supreme Court decided that – for the purposes of the Equality Act – trans women are not women and that for this Act, ‘woman’ means biological women only (those born as women).

The Supreme Court was at pains to point out that its decision does not mean trans people are unprotected. They continue to be protected from discrimination on the ground of gender reassignment if they are disadvantaged because they are trans.

It is important to remember that under the Equality Act, protection is given in circumstances where a person is undergoing, or has undergone, a process to change their sex and importantly it extends to those proposing to undergo such a process.

Indeed, ACAS and other organisations have been lobbying for many years to change the title of the protected characteristic to ‘gender identity’ which is a much better description.

In addition, a trans woman will be able to bring claims of indirect, direct sex discrimination, and harassment on the ground of perception or association with their acquired gender.

The Equality and Human Rights Commission has published an interim update on the judgment and aims to provide the updated Code of Practice to the government during the summer of 2025.