The Supreme Court has ruled that, for the purposes of the Equality Act 2010 (EA 2010), the term “woman” refers to biological sex – not gender identity. This means that trans women, even those with a Gender Recognition Certificate (GRC), do not fall within the legal definition of “woman” under the Act.

The ruling came in the case of For Women Scotland v The Scottish Ministers, which challenged Scottish Government guidance issued in 2018. That guidance supported a law to improve the representation of women on public boards and stated that trans women with a GRC should be treated as women. For Women Scotland challenged this interpretation, arguing it conflicted with the legal meaning of “sex” in EA 2010.

The Supreme Court agreed. It ruled that the terms “man”, “woman” and “sex” in the EA 2010 refer to biological sex. Defining sex by reference to gender recognition, the Court said, would create confusion and inconsistency across the statute. It would undermine sex-based provisions – such as those relating to pregnancy, single-sex spaces, and sexual orientation – which all require a clear and consistent biological definition to operate effectively.

Key points from the ruling:

  • Statutory coherence: Redefining sex to include GRC-acquired gender would disrupt the Act’s logic and practical application.
  • Unfair division among trans people: Giving extra rights to GRC-holders, as the Scottish Minister’s interpretation did, would have created an unfair division among trans people and left service providers unable to lawfully distinguish between them (as they are unable to ask whether a person holds a GRC).
  • Sexual orientation protections: The Scottish Ministers’ interpretation could compromise spaces intended for single-sex meetings, such as lesbian-only groups.
  • Single sex spaces: Provisions relating to single-sex services, spaces, hostels, and medical spaces required a consistent, biological definition of sex to function properly.
  • Trans protections remain: The Court emphasised that trans individuals are protected under the EA 2010 through the separate protected characteristic of gender reassignment. They can also bring claims via discrimination by perception or association, and through indirect discrimination protections under section 19A EA 2010.

Comment

While the ruling is contentious, it reflects a strict approach to statutory interpretation. Section 9(3) of the Gender Recognition Act 2004 allows exceptions to the general principle that GRC-holders are recognised in their acquired gender “for all purposes”, where it would render another statute incoherent. The Supreme Court found that applying this principle to the EA 2010 made it incoherent.

Importantly, the Court reiterated that trans people still have strong legal protections in employment under existing equality law via the protected characteristic of gender reassignment and the extension of protection from harassment, direct and indirect discrimination to include perceived characteristics, and discrimination by association. It is in the area of service provision that the ruling is likely to be most impactful.