Supreme Court determined that the definition of sex within the Equality Act 2010 relates to biological sex and does not apply to certificated sex under a gender recognition certificate.

The Gender Representation on Public Boards (Scotland) Act 2018 required that a certain amount of those on boards were women. The issue arose as to whether those with a gender recognition certificate were to be regarded as women when they had transitioned. The claimant, a Scottish women’s rights group, brought proceedings stating that it should only be those who are biological women in line with the Equality Act 2010. The respondent Scottish Government contested that it should include those with gender recognition certificates and who were regarded as female as a result of those certificates.

At the lower court it was held by the Lord Ordinary that ‘sex’ in the 2010 Act was not confined to biological sex but included the acquired sex as set out under a gender recognition certificate. This was on the basis of the Gender Recognition Act 2004 which stated that a person’s gender for all purposes became the acquired gender.  This decision was appealed to the Supreme Court. 

The Supreme Court looked at the legislation prior to the Gender Recognition Act 2004 and found that the meaning of man and woman within the Sex Discrimination Act 1975 related to biological sex and not acquired sex.  They also found that the 1999 Regulations amending the Sex Discrimination Act created a new protected characteristic relating to gender reassignment but did not amend the meaning of man and woman.  Bringing this forward to the definition of the Equality Act 2010 there was nothing in Parliament’s intention that it was to modify the meaning of sex – thus the definition related to biological sex. 

The Supreme Court noted that the 2010 Act operated to protect both individuals and groups who shared the protected characteristics.  This related to sex and gender reassignment.  In relation to ‘sex’ it was regarded as being binary in that individuals were either a man or a woman.  To contend that a certificated sex also applied would cut across the protected characteristic of sex in an incoherent way.  The Supreme Court noted that the interpretation of sex as relating to biological sex would not remove the important protection to transgender people which is separately detailed within the 2010 Act. Individuals would still be able to invoke provisions relating to direct and indirect discrimination and harassment where such circumstances arose.  As a result, the appeal was successful.

The decision of the Supreme Court has rightly received a lot of publicity considering the effect it has on an area of popular debate. However, some of that publicity does not get far beyond the headline from the decision and the Supreme Court here is outlining how the protections within the Equality Act 2010 operate. This does not remove all protection from transgender people but rather that protection arises under the protected characteristic of gender reassignment whereas the protected characteristic of sex is defined as meaning biological sex.  The impact of this especially when it comes to distinctions made on sex or single sex areas may lead to more litigation but any change to the definition of sex would now be a matter for Parliament rather than the courts.

You can read the case in full here.