Supreme Court makes landmark decision on gender definitions

The Supreme Court has unanimously allowed the appeal for For Women Scotland Limited and has provided clarity on how ‘woman’, ‘man’ and ‘sex’ are to be defined.

The decision acts as a reminder that the aim of the Equality Act 2010 is to provide “protections to people who are at risk of suffering from unlawful discrimination.” It’s important that the appeal starts with this rationale so that the decision and its implications can be fully understood and appreciated.

The decision proceeds to remind us of how women have “historically suffered from discrimination” and that it wasn’t until 1975 that they were given statutory protections against discrimination on the grounds of their sex. The decision also recognised that the trans community is “historically and currently” a vulnerable community which has only recently been protected via legislation.

At the outset, the decision stressed that it is not the role of the decision makers in the appeal to decide on a universal definition of ‘woman’ or to play the role of an adjudicator in public arguments of what is meant by  ‘woman’ or ‘man’ but that its role is confined to only addressing the meaning of the word ‘woman’ in the Equality Act.

What does Equality Act say?

The Equality Act protects women – whose protected characteristic is sex – as well as members of the trans community – whose protected characteristic is gender reassignment – against discrimination. The purpose of this decision is to see if the words used in the Equality Act can provide a consistent and predictable meaning to the terms ‘woman’, which is consistent with the Gender Recognition Act 2004.

Gender reassignment is a protected characteristic under the Equality Act and protects any person who is undergoing, proposing to undergo or has undergone a process (or part of a process) of reassigning their sex/gender and has a broad scope within the Equality Act.

What does this decision mean?

The outcome of the appeal, which was unanimous, held that the definition of ‘woman’ and ‘sex’ in the Equality Act 2010 will refer to biological sex of an individual. While this may appear to be a step back for individuals identifying themselves as trans, the decision reinforces that those individuals are protected from forms of discrimination by the Equality Act, as gender reassignment is a protected characteristic. Ultimately, the decision will be welcomed because there is finally some clarity on the law and the meaning of ‘woman’, ‘man’ and ‘sex’.

Whether the government will legislate further on the point remains to be seen. It’s important to end with the cautionary note from the Supreme Court, which expressed that the decision should not be regarded as a “triumph of one or more group of people in our society over another”.

Read the full decision here: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent)

If you have any questions on this decision or on protected characteristics under the Equality Act 2010, please get in touch with our expert team – we’d be happy to help.

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