The UK Supreme Court has determined that trans women are not legally acknowledged as women under the Equality Act 2010. This decision emerged following the enactment of the Gender Representation on Public Boards (Scotland) Act 2018 by the Scottish Parliament, which aimed to incorporate transgender women into gender representation quotas on public sector boards.
The court’s ruling underscores that the definition of “sex” within the Equality Act 2010 is “binary” and biologically based, consequently excluding those not born female from the legal protections designated for women, despite possessing a Gender Recognition Certificate (GRC). Lord Hodge elaborated during the ruling that the Act’s provisions pertained strictly to biological sex at birth and did not extend to cover acquired gender identity.
The interpretation hinged on applying the literal rule of statutory interpretation, focusing on the statute’s plain, ordinary meaning, which was interpreted as referring to biological sex. Although the word “biological” doesn’t appear explicitly in the Equality Act’s definition of “woman” or “man”, the court emphasized this interpretation method in reaching its conclusion.
Originally, For Women Scotland Ltd, a feminist organization advocating for enhancing women and children’s rights, contested the definition of “woman” as outlined in the 2018 Act. The Act had described “woman” as including a person undergoing gender reassignment under section 7 of the Equality Act 2010, provided they were living as a woman and undergoing or had undergone a process to be recognized as female.
After a successful appeal in the Inner House of the Court of Session in 2022, the Scottish government issued new statutory guidance affirming that individuals with a valid GRC identifying them as female would satisfy the gender balance quota. However, this led For Women Scotland Ltd to initiate a judicial review at the Supreme Court, disputing the legal interpretation made by the Scottish government.
The Supreme Court’s ruling, which has altered the legal landscape concerning gender rights, indicates that various public bodies may need to revisit their gender policies. The full judgment can be accessed here. For further details on this decision, visit JURIST.