Supreme Court rule on biological sex

The Supreme Court handed down its landmark decision in the case of For Women Scotland v The Scottish Ministers last week, which considered whether a trans woman with a Gender Recognition Certificate would be considered a ‘woman’ under discrimination law. 

The decision

This case concerned Scottish legislation requiring a specific number of women to be on public authority boards and whether a transgender woman would fulfil that requirement. Under Scottish Government guidance, a transgender woman (i.e., a biological man, living as a woman) with a Gender Reassignment Certificate was to be treated as a woman for legal purposes. 

In 2020, For Women Scotland (FWS) challenged this definition. Ultimately, the Court of Session in Scotland found that a transgender woman was a woman for the purposes of quotas on public authority boards as per the government guidance. This decision was subsequently appealed, on the basis that the definition of a woman or man under the Equality Act 2010 could only be based on biological sex and not on certified sex under a Gender Recognition Certificate. The Supreme Court upheld that appeal today. 

The Supreme Court found that references to ‘sex’, ‘man’ or ‘woman’ in the Equality Act 2010 refer to an individual’s biological sex and not the sex that is stated on a Gender Recognition Certificate.

The Supreme Court explained that if someone’s sex was to be determined by a Gender Recognition Certificate under discrimination law, issues would arise in relation to protections afforded to maternity, pregnancy and other sex-based protections. The Court also found that different rules would apply to different transgender people, depending on whether they had a Gender Recognition Certificate or not, and that this was undesirable. 

Importantly, the Supreme Court was clear that transgender people are still protected under the protected characteristic of gender reassignment, and that they could still rely on Equality Act protections against direct discrimination, indirect discrimination and harassment on the grounds of sex through discrimination by association or perception on the basis of their acquired gender. 

Much of the publicity around this case will focus on the issues that arise in practice as a result of the finding, for example in respect of changing rooms, bathrooms, medical services, and permitted “female-only” spaces under the law. Only as further cases are considered in the courts and tribunals on these matters, or in the event of governmental guidance or legislation, will we see how these issues can be resolved. 

What does this mean for employers? 

By clear implication, this decision challenges the orthodoxy that has arisen in the HR and employment law communities that transgender workers are entitled to use the workplace facilities associated with their acquired gender, such as toilets and changing areas. Some employers may now decide to revisit their policies in these areas, in light of this judgment.

We recommend clients take advice on their own circumstances before making any changes to their policies or rules. Transgender workers still enjoy substantial protection against unfavourable treatment relating to their transgender status and, in some cases, their acquired gender, and employers will still require to consider the practical effect of any changes to their workplace practices on these workers.

If you would like any further information on this article or would like to discuss your employment law and HR matters, please don’t hesitate to contact hello@alphr.uk and we will be delighted to help you.