For Women Scotland Ltd v The Scottish Ministers

For the purposes of the Equality Act 2010, the terms “sex”, “man” and “woman” refer to biological sex. A gender recognition certificate does not alter a person’s protected characteristic of sex under that Act.

The Equality Act 2010 constitutes provision within section 9(3) of the Gender Recognition Act 2004 and therefore displaces section 9(1). A certificated-sex interpretation would make provisions concerning pregnancy, sexual orientation, single-sex services, associations, sport and group-based equality measures incoherent or impracticable.

Trans people, whether or not they hold a certificate, remain protected against gender reassignment discrimination. They may also rely on sex discrimination based on perception or association and on the statutory protections against harassment and indirect discrimination.

The appellant challenged Scottish Government guidance concerning the gender representation objective for public boards under the Gender Representation on Public Boards (Scotland) Act 2018. The guidance stated that a trans woman holding a full gender recognition certificate was a woman under the Equality Act 2010 and therefore counted towards the objective.

The Outer House dismissed the petition. The Inner House refused the reclaiming motion in [2023] CSIH 37, holding that a certificate generally determines a person’s sex under the Equality Act 2010, subject to provisions whose context requires a biological meaning.

The central issue was whether section 9 of the Gender Recognition Act 2004 makes certificated sex determinative under the Equality Act 2010, or whether that Act consistently uses sex, man and woman in their biological sense.

1. The appeal was allowed unanimously. Lord Hodge, Lady Rose and Lady Simler delivered the judgment, with which Lord Reed and Lord Lloyd-Jones agreed. The Scottish Government guidance was legally incorrect because a trans woman holding a gender recognition certificate is not a woman for the purposes of sex discrimination under section 11 of the Equality Act 2010.

2. Section 9(1) of the Gender Recognition Act 2004 ordinarily makes a person’s acquired gender effective for all purposes. Section 9(3), however, applies whenever the language, context and purpose of another enactment are incompatible with that rule or would be rendered incoherent or unworkable by it. Express disapplication and the stringent test of necessary implication are unnecessary.

3. The definitions in sections 11 and 212(1) of the Equality Act 2010 establish a single, stable meaning. “Woman” means a biological female and “man” means a biological male. A variable meaning, biological in provisions concerning pregnancy but certificated elsewhere, would contradict the statutory definitions and the requirements of clarity and predictability.

4. This construction was confirmed by provisions concerning pregnancy, maternity and breast-feeding, sexual orientation, single-sex and separate-sex services, communal accommodation, associations, charities, sport, positive action and the public sector equality duty. A certificated-sex construction would create heterogeneous groups determined by possession of a confidential certificate. It would impede the identification of biological groups whose shared needs and disadvantages the Act addresses.

5. Sex and gender reassignment remain distinct protected characteristics. The biological construction does not remove protection from trans people. They remain protected against gender reassignment discrimination. Direct sex discrimination may also arise through perception or association; harassment requires conduct related to the characteristic rather than possession of it; and section 19A protects a person suffering substantially the same disadvantage as a protected group.

6. The term “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 was consequently limited to biological women. So construed, that Act remained within the Scottish Parliament’s legislative competence. Appointment of a trans woman with a certificate does not count towards its objective of 50% representation of women on public boards.

1. United Kingdom Supreme Court: Allowed the appeal from [2023] CSIH 37 and held the challenged guidance to be incorrect.
2. Inner House of the Court of Session: In [2023] CSIH 37, refused the reclaiming motion and upheld the conclusion that a person with a certificate acquired the protected characteristic of sex corresponding to the certificate, subject to contextual exceptions.
3. Outer House of the Court of Session: In [2022] CSOH 90, dismissed the petition and held that sex under the Equality Act 2010 included the acquired sex of a certificate-holder.