The Definition of a Woman
On 16 April 2025, the Supreme Court handed down its judgment ruling on the definition of woman and sex as they appear in the Equality Act 2010 (EA). Though the judges were clear that they did not seek to adjudicate on the meaning of woman more generally, their decision will have far reaching legal, political, and social effects.
The legal and historical background
The EA is an amending and consolidating statue, combining mostly the Equal Pay Act 1970, the Sex Discrimination Act 1975, the Race Relations Act 1976, and the Disability Discrimination Act 1995. It was intended to ‘reform and harmonise equality law and restate the greater part of the enactments relating to discrimination and harassment related to certain personal characteristics’ (the long title). It has a wide scope, governing both the public and private sector, regulating the interactions and relationships between individuals and organisations over a range of activities.
Part 2 of the EA lists 8 protected characteristics; age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, sexual orientation. Each of these groups has been considered to have experienced discrimination or a disadvantage flowing from shared biology, societal norms or prejudice. To address the common needs affecting each group, over the last century the legislature have sought to achieve equality by prohibiting discrimination, subject to specific exemptions.
The exemptions for discrimination against women, include non-exhaustively separate and single sex services (like changing rooms, homeless hostels and medical services), communal accommodation, single-sex higher education institutions, and women’s fair participation in sport. It is crucial for the workability of these exemptions, that institutions have a clear legal definition of who is a women; who they are able to except into these women only spaces without fear of legal action.
The appeal
The appeal was brought by Women Scotland who challenged statutory guidance on s7 Gender Representation on Public Boards (Scotland) Act 2018 which says that 50% of non-executive members on public boards should be women, which includes transexual women who had obtained a gender recognition certificate in accordance with the Gender Recognition Act 2004 (GRA). This guidance was upheld by the Second Division of the Inner House of the Court of Session, from where the appeal was brought.
The Supreme Court’s considerations
The Supreme Court emphasised the need in statutory interpretation for certainty and clarity. They operated on the basis that legislation needs to be coherent, workable, and stable and operated on the presumption that a word has the same meaning throughout the Act when used more than once in the same statue. The Supreme Court also adopted a purposive approach by seeking to base their interpretation on what parliament intended at the time of drafting the legislation. This led them to read the provisions containing ‘women’ and ‘sex’ in the context of the statue as a whole and within its historical context.
Consideration of the historical context caused the Supreme Court in its decision to set out the legislation from which the EA is based in great detail. It is a masterclass in the history of gender and transgender discrimination protection and a testament to how far we have come in society towards equal rights. Relevant to their decision was the fact that the EA was passed 6 years after the GRA and yet there is no mention within the former of the latter and any implications it may have. The Supreme Court considered that the legislature must have had the GRA in mind when drafting and chose not to include a distinction or guidance about whether or not women with a GRC are included in the various provisions within the EA.
The Supreme Court’s findings
The Supreme Court also found that there are provisions within the EA which are unworkable unless woman means biological woman. One of these provisions is in s17 and 18 which relate to discrimination against women who are pregnant or have just given birth. Case law from the ECHR has held that discriminating on a woman on the grounds of her pregnancy constitute direct discrimination on the grounds of sex. As a matter of biology biological men (including trans women) cannot become pregnant so this part of the statue must be referring only to biological women. Similarly under Schedule 3 paragraph 14(1) and (2) of the EA, service providers can refuse a service to a “pregnant woman” if they reasonably believe that to do so would create a risk to her “health and safety”. If woman in this context does not mean biological woman then service providers would not be able to refuse a service to pregnant men (with a gender recognition certificate), stripping them of the adequate statutory protection necessary to keep that man safe.
The Supreme Court also considered the provision that allows for sex discrimination for separate and single-sex service provides, this type of discrimination is only legal if only the persons of that sex have a need for the service. They used the example of sex specific medical treatments like cervical cancer screenings or prostate cancer screenings. If sex was given a certified sex interpretation a trans man who has a gender recognition certificate and a cervix and uterus has the same need for cervical cancer screening as a biological woman. Similarly, a trans woman would have no need for that service. The result would be that the cervical cancer screening service cannot be said to be needed for the members of one (certified) sex so would not constitute lawful discrimination, undermining the entire purpose of that provision. This cannot have been the legislature’s intention.
The Equality and Human Rights Commission’s view
The Equality and Human Rights Commission has recognised that where sex has been given a certified sex meaning “it has not been straightforward for service-providers and employers to apply the law, including in areas such as sport and health services” and if sex were to be given a biological sex reading in the EA, greater clarity would be brought to 8 areas.
- Pregnancy and maternity
- Freedom of association for lesbians and gay men
- Freedom of association for women and men
- Positive action
- Occupational requirements
- Single-sex and separate sex services
- Sports
- Data collection.
It also considered that a change to a biological sex reading would have ambiguous or potentially disadvantageous consequences for equal pay provisions and direct and indirect sex discrimination. Though this recognition was not binding, the Supreme Court found it striking.
The legal implications
This decision has not stripped transexual people of the right not to be discriminated against. Gender reassignment is a protected characteristic and the trans community is still afforded protection from discrimination and harassment in the many spheres that the EA covers. Discrimination and harassment by perception means that a trans man or woman can also bring a claim for sex discrimination or harassment based on their perceived sex, without having to prove that they are member of that sex biological or otherwise. The trans community is also still protected from indirect discrimination despite the judgment because the principle of discrimination by association extends to indirect discrimination; where a group which shares a protected characteristic is put at a particular disadvantage, a person who is also put at that same disadvantage may claim indirect discrimination even if (s)he does not share the characteristic in question.
There has been indecision about whether this decision obliges organisations to force trans people into their own space or into the space designated for their biological sex. The British Transport Police have issued guidance that intimate searches will be performed by officers in accordance with their biological sex following the decision and the NHS has said guidance will follow regarding single sex wards. In my view, although the judgment make it is lawful for organisations to provide single sex spaces, it does not oblige them to. Organisations can still maintain spaces for sporting or privacy purposes, which are open to biological woman and trans women with gender recognition certificates. Take for example an organisation which provides a legitimate single sex service and provides its service to both biological women and trans women with a GRC certificate. Take the policy in two parts; part one is biological women and part two is trans women. The first part of the policy is lawful because it falls into the EA sex discrimination exemption allowing for separate and single sex services. The second part, admitting trans women is not unlawful discrimination in that it discriminates against people who are not transgender because being cis gendered is not a protected characteristic in the same way that being not disabled is not a protected characteristic. An argument that this would constitute indirect discrimination would not succeed if it can be shown to be a proportionate means of achieving a legitimate aim. This view is controversial and clarity would be best served by further guidance.
The same may not be true about the effect on single characteristic associations and charities who are allowed to restrict memberships to persons who share a protected characteristic. As trans women no longer share the protected characteristic of sex as it results to biological sex. Again, further clarification on this issue would assist the wider community with legal certainty.
All that being said, a decision which seeks to distinguish biological women from those with a gender recognition certificate has been said by the trans community to undermine the value and recognition that they felt society placed on their acquired identity. While the judgment expressly limited itself to the provisions in the EA, the consequences could potentially to extend far beyond just a legal sphere and affect 96,000 trans people identified by the office of national statistics. The Supreme court recognised the need to avoid unacceptable discordance in the sense of identity of a transgender person and the impact that their decision could have on private relationships. It also recognised that the trans community is both historically and currently a vulnerable community. It is a shame, therefore, that the Supreme Court chose to receive submissions from a lesbian organisation but not a trans organisation.
Florence Stocker