What does “sex” mean under the Equality Act 2010? Previewing the case of For Women Scotland v The Scottish Ministers in the Supreme Court

Today (26 November), "sex" under the Equality Act 2010 takes centre stage in the Supreme Court. In For Women Scotland v The Scottish Ministers, five Justices will be deciding whether a person who has a Gender Recognition Certificate (GRC) which recognises their gender as female, is also a woman for the purposes of the Equality Act.  

Below we preview some of the key issues the Supreme Court will be exploring and consider the potential implications for employers.

What is a Gender Recognition Certificate?

When someone changes their legal gender, they receive a GRC. A GRC allows someone to update their birth and marriage certificate/s, and have their "acquired" gender recorded on their death certificate. Once someone has a GRC, their legal sex becomes "for all purposes" the gender now recognised on the GRC. This means that, if someone has received a GRC which recognises them as a male, the person's sex "becomes that of a man". There are some exceptions to this rule, such as in the context of sports.

What's happened so far?

In 2018, a new law in Scotland set targets to increase the proportion of women on public boards. The law originally defined "women" as including people with the protected characteristic of "gender reassignment". This characteristic is broadly defined and applies to people who are proposing to undergo, are undergoing or have undergone a process of gender transition, and it doesn't require someone to have a GRC.

In 2022, it was held that this definition was unlawful because it concerned an issue that fell outside of the Scottish Parliament's competence, namely the definition and scope of a protected characteristic under the Equality Act.

Following that decision, new statutory guidance was introduced which says that "woman" under the new law has the same definition as in the Equality Act. The guidance states that this includes a person who has a GRC which recognises their gender as female, such as a transgender woman.

This guidance has now been challenged on the basis that "sex" should be defined as "biological sex". The effect of this would be that the meaning of "woman" would not be impacted by someone having a GRC.

The appeal court of Scotland's supreme civil court (the Inner House) agreed with the first instance court (the Outer House), and dismissed the petition. In its opinion, the meaning of "sex" includes people who have a corresponding GRC. In other words, someone with a GRC recognising them as female would be a woman for the purposes of the Equality Act. The guidance was therefore lawful. This decision has now been appealed to the Supreme Court.

What difference will it make?

Whatever the outcome, the decision will impact the way that sex-related provisions within the Equality Act apply. Most notably, a "biological" definition of sex could impact the application of occupational requirements and positive action measures for people with a GRC. Employers would need to consider how existing (and future) employees may be affected and handle changes sensitively.

Another area attracting questions from employers will be pregnancy and maternity discrimination. Under the Equality Act, it is unlawful to discriminate against a "woman" because of pregnancy. Therefore, if the definition of "sex" could depend on someone's GRC, it could result in a pregnant person who holds a male GRC being excluded from protection against discrimination.

In this scenario, the Supreme Court might follow the lead of the Inner House and caveat this general rule by recognising that it might be necessary to interpret "sex" or "gender" contextually in some instances.

In other words, as a general rule someone's "sex" would be determined with reference to any GRC they hold, unless the specific context requires a different interpretation. On pregnancy and maternity, the court stated that the "importance of biology is blatantly clear" and that the protected characteristic can only be interpreted as including those who are pregnant, have given birth or are breastfeeding. The reference to "woman" is not the essential element at which protection is aimed, since not all women can or do become pregnant. According to the court, the need for a contextual interpretation here does not mean that there is a problem with having an otherwise "default" position within the Act.

What should employers be doing?

We don't know when the Supreme Court will give its judgment, but there are some steps employers could be considering in the meantime.

In terms of pregnancy and maternity discrimination, many employers already adopt inclusive policies and language. Many also already design policies around the fact of pregnancy or maternity itself, rather than hinging on the definition of "woman". Even if the Supreme Court adopts a GRC-inclusive definition of woman, it would be surprising if it did not also share the caveat expressed by the Inner House. This would enable the Supreme Court to avoid a strict interpretation of "woman" which would otherwise take a very small group of people (with male GRCs) out of the scope of protection.

Taking a step back, while a context-sensitive interpretation permits flexibility across an Act stretching 336 pages, some employers may be concerned about a lack of consistency and predictability. Unless the Supreme Court adopts a rigid, universal definition (which would raise a number of issues in its own right), there remains the possibility that the Act is interpreted in a way that was not anticipated. This is where it will be particularly important that employers develop and implement policies in a way that fairly and accurately reflects the diversity of the modern workforce. Any decisions related to policy and procedure should also be carefully documented with reference to the specific context.

Employers will also be well advised to ensure that proper consideration is given to the protection from gender reassignment discrimination. As outlined above, gender reassignment protection is interpreted very broadly and it does not depend on someone having a GRC. It includes people who are proposing to undergo a gender transition, even if no further steps have been, or are, taken. It is likely to cover non-binary gender identities after the (first instance) decision in Taylor v Jaguar Land Rover. Consequently, employers will need to remain cautious of, and alive to, the risk of discrimination in these circumstances.

Concluding thoughts

This judgment won't answer everyone's questions about the application of equality law in the context of an increasingly diverse workforce. Whatever the outcome, employers will need to continue to reflect on the diversity of their workforces while formulating policies and practices that are workable and practicable. What is certain is that the judgment will contribute to ongoing discussions across the UK by employers who are trying to navigate a complex, shifting legal landscape.

How can we help?

We know that many employers face challenges in managing an increasingly diverse workforce and avoiding discrimination cases, leading to potential legal and reputational risks. Many employees also lack confidence and/or knowledge.

That's why we're delivering bespoke Gender Diversity in the Workplace Training. This programme equips managers and teams with the knowledge and tools to foster an inclusive workplace, support gender-diverse individuals and maintain compliance within an evolving social and legal landscape.

See a sample of the programme to find out more.