What is a woman? Supreme Court rules that the answer is biological

 

When using the terms ‘sex’, ‘women’ and ‘man’, the Equality Act 2010 does not state whether these terms relate to biology or legal sex, as determined by a gender recognition certificate. As trans rights have gained more prominence, this uncertainty has caused difficulty interpreting the sex-based protections within the act. 

 

The Supreme Court’s job was to determine what Parliament had intended the words to mean when drafting the Equality Act 2010. It was not to decide what the law ‘should’ be or take sides in the debate between women’s rights and transgender rights. 

 

The Supreme Court held that in the Equality Act 2010 the words “sex”, “woman” and “man” mean biological sex, biological woman and biological man. The Court was clear that this “does not remove or diminish the important protections available under the EA [Equality Act] 2010 for trans people with a GRC.” In relation to sex discrimination, a person has the characteristic of their biological sex only: a trans man with a GRC (a biological female) is a woman for the purposes of section 11 and a trans woman with a GRC (biologically male) is a man. 

 

 

The court looked at whether each interpretation would make sense and produce workable results. Where an interpretation produces “unworkable, impractical, anomalous or illogical results” it is unlikely this is what parliament intended. 

 

The court followed the general rule that words or terms used more than once in the same legislation are taken to have the same meaning whenever they appear. In some places (relating to pregnancy and maternity) the words had to mean biological sex, so they should keep this meaning throughout. To mean biological sex in some places and certified sex in others, would be unclear, inconsistent and unpredictable. 

 

Parts of the Equality Act specifically reference marriage “to a person of the same sex in a relevant gender change case” separately to “man” and “woman”, suggesting that Parliament did not see those people as automatically included within the terms “man “ or “woman”. 

 

While the Gender Recognition Act says that a full gender recognition certificate means that “for all purposes the acquired gender”, it makes an exception where applying the rule would make the terms, context and purpose of an act “incoherent or unworkable.” 

 

It is important that the law is clear so that individuals and organisations are able to understand what the law says and act within it. Sex is a protected characteristic, so it is important that normal organisations understand what it means. This definition should be “predictable, workable and capable of being consistently understood and applied in practice.” 

 

Organisations should generally be able to identify the groups that share protected characteristics under the Equality Act to apply specific protections and avoid discrimination. If such groups are difficult to identify, an employer cannot be expected to perform their obligations. 

 

Under the Gender Recognition Act, possession of a gender recognition certificate is confidential, and so employers may not be aware of whether an employee has one or not and would not be able to disclose such information to others. People can attain a gender certificate before undergoing any treatment, and so it may be difficult to easily identify individuals who have such a certificate. It would be difficult to expect employers to base policies and actions on whether a person has this certificate when they may not know. Treating a person differently depending on whether they have this certificate would effectively make that information public. 

 

 

Gender reassignment is a protected characteristic under the Equality Act, so it is unlawful to discriminate based on gender reassignment. The court was clear that this decision does not take away any of these protections. A person is still protected from direct and indirect discrimination on the basis that they are transgender, are perceived to be transgender, or are associated with transgender people. 

 

The Equality Act and Gender Recognition Act take a different approach to who is protected. Under the Equality Act, anyone who intends to undergo a transition process, is in the process of transitioning or has undergone such a process is protected under the characteristic of gender reassignment. This means a wider group is protected than just those who have obtained a gender recognition certificate. The Gender Recognition Act 2004 was already in place when the Equality Act 2010 was drafted, and so Parliament could have included a reference to gender recognition certificates. It can be considered a conscious choice not to include such a reference and to protect a wider group of people. 

 

This ruling means that a trans person is still protected whether or not they have a gender recognition certificate. Those with a certificate are not granted greater protection (the court felt this might be the case if ‘sex’ was based upon certified sex.) 

 

To make a claim based on the protected characteristic of gender reassignment, a claimant would compare their treatment to someone without that characteristic. So for a transwoman (a biological man), the comparator would be a man who has no plans to transition. Some protections under the Equality Act include specific exceptions for when it may be legal to treat a person differently based on their gender reassignment. But in all other cases, treating a person differently because of their gender reassignment would be discriminatory. 

 

Measures of indirect discrimination and positive action rely on identifying groups and reaching general conclusions about their shared experiences or needs, whether due to biology, societal expectation or societal structures. Otherwise, an employer cannot reasonably to expected to appreciate whether policies could have a disproportionate impact on the group. 

 

For example, a biological definition of sex allows us assume that women share biological issues such as menstruation, menopause, pregnancy and breastfeeding. However, a certified-sex approach would mean that such issues could not be distinguished by sex. ‘Women’ would include transwomen (biological men) and exclude transmen (biological women). ‘Men’ could face issues of menopause or pregnancy through the inclusion of transmen. A policy which indirectly impacts on women experiencing the menopause may no longer be indirect discrimination, as such issues could not be limited solely to women. 

 

A person has the protected characteristic of gender reassignment if they are “proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.” It does not rely on having a gender recognition certificate. To determine sex as being certificate-based would split this group in two, assuming that those with a certificate faced different challenges to those without. While this may be true in some ways, it is hard to see how this could apply consistently when the certificate itself is confidential. 

 

The court also noted that gender reassignment and sex are separate protected characteristics under the Equality Act. This suggests Parliament at the time saw them as separate groups facing distinct challenges and discrimination. Interpreting sex as based on certified-sex would not allow for the distinction of these issues, making it difficult to identify and address challenges. Gender reassignment is one characteristic, with no distinction between transwomen and transmen. This suggests that, as a group, trans people face discrimination related to their status as trans, not dependent on their certified-sex. 

 

Trans people still have protection from sex discrimination related both to their biological and acquired sex. For example, a transman may be treated less favourably than a biological man because they still appear female. They cannot claim gender reassignment discrimination, as this was not the cause of the discrimination. Under a certificate basis of sex it would not be sex discrimination as they would be legally male, which would leave them with no legal claim. A sex-based definition means they are still protected from such discrimination, on the basis that their biological sex is female. 

 

Conversely, if a transman is treated less favourably because they are perceived as male, they would be protected from sex discrimination by perception. It does not matter that they are biologically female – the discrimination is based on the perception of them being male. 

 

When setting out protections around pregnancy, maternity leave and breastfeeding, the Equality Act refers to women. The Supreme Court felt that “since as a matter of biology, only biological women can become pregnant, the protection is necessarily restricted to biological women.” Pregnancy discrimination is based on ‘unfavourable’ treatment (not ‘less favourable’ treatment like other forms of discrimination). This is because “no comparison can … be made between the case of a sick man and a pregnant woman, both of whom need a period of absence from work.” 

 

Had ‘sex’ meant legal sex, then transwomen (biological men) could benefit from these protections, while transmen (biological women) could not. The court’s decision means that transmen can automatically benefit from these protections. 

 

Had the court favoured a certificate-based definition, a transman would have had to make a claim of gender reassignment discrimination to get these protections. 

Some employers may choose to make their policies trans-inclusive by referencing transmen in their pregnancy and maternity policies. However, even without such wording, transmen will be entitled to pregnancy protections. 

 

The Equality Act allows organisations to exclude individuals based on their sex to provide single-sex spaces for privacy and decency. The Equality Act makes exceptions which allow transgender people to be excluded, in which case it is not discrimination to treat them differently to others of their acquired sex. However, this has become a contentious issue as it was unclear whether organisations were required to exclude transgender people of the opposite biological sex or to have separate policies for those with and without gender recognition certificates. 

 

The requirement to provide single-sex facilities comes from health and safety regulations, not the Equality Act, which was at the centre of this case. But intermin guidance from the Equality and Human Rights Commission states that trans people should not be permitted to use the facilities of their acquired gender "as this will mean that they are no longer single-sex facilities."  

 

The EHRC guidance also says that there may be circumstances where trans people can be prevented from using the facilities of their biological sex. But failing to provide facilities for trans people would be discriminatory. It is more important than ever to provide additional mixed-sex facilities or lockable single-occupant facilities for all staff. 

 

Read more about single-sex spaces 

 

While this is not strictly a workplace issue, many workplaces have associations or organisations for specific groups, including sports teams. The Equality Act allows associations to restrict membership and access to people who share a protected characteristic. This has been a particularly contentious issue for groups for same-sex attracted people. As the court pointed out “people are not sexually oriented towards those in possession of a certificate.” Whether or not a lesbian believes that transwomen can be lesbians, they are unlikely to change this perception depending whether the transwoman has a gender recognition certificate. 

 

Based on this judgment, same-sex groups and same-sex attracted groups can exclude members based on biological sex – no matter how they identify. If you allow employees to create organisations based on sex or same-sex attraction, you must allow these to be based on biological sex. It would be unwise to discipline a gay group for excluding transmen, a lesbian group for excluding transwomen, or a women’s sports team for excluding transwomen. 

 

The matter of quotas was at the heart of this case, as the claim related to the definition of sex in a Scottish act regarding quotas. 

 

The Equality Act allows for some positive action to improve equality, such as quotas. In some cases, employers are required to take positive action (in particular, public authorities have specific obligations). Measures such as quotas, pay gap reporting or targeted mentoring for certain groups, are based on the premise that people with a shared protected characteristic are disadvantaged in the same way. 

 

The court’s findings mean that people should be regarded as their biological sex for such measures. So when calculating their pay gap, employers should include a transwoman in calculations of the average male wage, and a transman in the female wage. When aiming for quotas such as 50:50 senior management, a transwoman cannot be counted as a woman. This also means transmen can benefit from measures that support women. 

 

Meanwhile, the different needs of, and disadvantages faced by, trans people (whether they have a gender recognition certificate or not) can be considered separately. This should make it easier to identify and respond to any issues that affect trans people specifically because they are trans, rather than because of their acquired sex (issues which are already being addressed based on sex). 

 

This ruling has not changed the law, just clarified the wording. This means that organisations using a certification interpretation of sex could have been breaking the law. Many of the claims this could have given rise to will be out of time. But if you have ongoing disputes, you should consider them based on biological sex. If this weakens or completely removes your defence, it may be wise to consider settlement. 

 

 

Employers should review their policies and training immediately. If you have been including people with a gender recognition certificate within their acquired sex, or your policies are unclear and may have this effect, you should update them immediately. 

 

It is important to train your staff about the judgment, especially managers who will be applying policies and handling disputes. Managers must understand that discrimination doesn't have to be direct - it can be indirect, and due to perception or association. Managers should also understand the protected characteristics of sex, gender reassignment, and philosophical belief (especially in relation to Forstater and gender critical beliefs). While tensions are high, it is important that disagreement does not spill over into harassment based on protected beliefs. 

 

The Equality and Human Rights Commission aims to have an updated Code of Practice ready for Government approval by June. In mid-May there will be a consultation around the practical implications of the judgment.  

 

If you are uncertain about how this judgment affects your policies, or any ongoing disputes, it is sensible to seek legal advice.