For Women Scotland Ltd v The Scottish Ministers: Supreme Court Rules on Definition of “Woman”
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Facts
For Women Scotland challenged the Scotland government’s statutory guidance which stated that the definition of a woman included those with a gender recognition certificate.
Finding
The unanimous ruling of the Supreme Court was that the legal definition of a woman should be based on biological sex. The Court held that the language of the Equality Act 2010 (EA) intended for the words “sex”, “woman” and “man” to respectively refer to biological sex, biological woman and biological man as such provisions that referenced sex (pregnancy and maternity, childbirth) could not be workable by any other interpretation.
The judgement went to on to say that the finding did not “remove or diminish” protections for transgender individuals, who remain protected under the legislation via the protected characteristic of gender reassignment.
The judgment set out that the EA has to be interpreted in such a manner that those with a protected characteristic are easily identifiable. Furthermore, permitting “sex” to include those with a gender recognition certificate (a gender recognition certificate is not required for protection to apply under the protected characteristic of gender reassignment) would give additional protections to transgender people who have a gender recognition certificate versus those who do not. This would also raise a practical question as to how to distinguish between transgender people with a gender recognition certificate and transgender people who do not have a gender recognition certificate.
Comment
This is an extremely sensitive area of law and the Supreme Court’s decision could never be determined in a manner universally accepted. The decision has, at least, provided clarification on an uncertain and complex area.
It is crucial for employers to appreciate the significance of the judgment and that is limited to a specific point on the definition of woman in the EA. It does not change an employer’s obligations or the need to be fair and equitable towards those that are transgender. It is advisable for employers to maintain equality and diversity policies in the workplace, and to deliver equality and diversity training to employees. Policies and training may now need to be updated to ensure that the implications of the ruling are reflected.
One consequence of the ruling is that “women-only” spaces will not extend to transgender women. This has implications for “women-only” workspaces such as changing rooms and for “women-only” sectors such as sports. Careful consideration needs to be given to managing these situations in the workplace.
If you require advice on this complex area, please contact our Employment Team.
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