Supreme Court judgement on meaning of ‘sex’

If you’ve checked the news in the last few days, or opened Mastodon, you will have heard about the recent Supreme Court judgement in For Women Scotland Ltd v The Scottish Ministers, in which the Court decided that ‘sex’ means ‘biological sex’ (in their terms ‘sex assigned at birth’), and that references to ‘women’ in the Equality Act therefore did not include trans women. They also ruled that ‘sex’ is binary. This has wide-ranging consequences, particularly in areas of policy which involve same-sex requirements (e.g. who is allowed to perform a police search that involves removing more than your jacket and gloves).

My response when I get angry (or pleased) about a legal decision is to write a detailed blog post about it, in the hope that it will be useful to others who may not know the background, how the legal process works etc. (this is rarely detailed in mainstream media reports – not unreasonably as they don’t have the time or space). A previous example is my post on the judgement around the invoking of Article 50 to start the process of the UK leaving the EU (‘Brexit’).

Terminology

This case mainly discusses women and trans women, however it does affect trans men and non-binary people. Normally I would try and use gender-neutral terms, but this doesn’t really work when the case is about the definition of gendered terms. I also have to talk about women and trans women separately in parts, because that’s what the case does, even though I think trans women are women. It’s also worth noting that whilst the legislation refers to ‘women’ and ‘men’, it is also explicitly stated that these include people of any age, so discrimination against girls or boys is included.

The case

This case came about because the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018, which set an objective that 50% of non-executive members on public boards should be women. To achieve that, if the 50% objective has not been met and there is a vacancy, preference should be given to appointing a woman.¹ Originally s2 of the Act defined a woman as including:

a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.

That definition would include at least some trans women, though how many would depend on what counted as a ‘process’ – surgery, medication, changing name, something else? Regardless, there was a court case that held that the Scottish Parliament could not define a woman in this way because it conflicted with the Equality Act.²

The next step was for the Scottish Ministers to issue revised statutory guidance which stated that ‘woman’ was now defined as per s11 and s212(1) of the Equality Act, i.e. a woman is ‘a female of any age’. However, the revised guidance also stated that:

where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman

So trans women would be included, but only if they had a GRC (many don’t). This was less inclusive than the previous position, but still much for some people, and the statutory guidance was now challenged in the courts in a similar way to the original legislation. As the Supreme Court states in paragraph 25 of their ruling:

The central issue on this appeal is whether references in the EA 2010 to a person’s “sex” and to “woman” and “female” are to be interpreted in the light of section 9 of the GRA 2004 as including persons who have an acquired gender through the possession of a GRC.

Just to make it clear, paragraph 26 states:

The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex.

Up until the case reached the Supreme Court, the lower courts had found that obtaining a GRC changed the holder’s sex for all purposes,³ which seems pretty clear – and it would be a bit pointless obtaining one if it didn’t do what the name says. Indeed, s9(1) of the Gender Recognition Act 2004 states:

Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).⁴

You would hope therefore that trans women with a GRC would be considered women in all circumstances, including the Equality Act, unless there was an explicit exception in legislation. This would still leave trans women without a GRC being considered as men, which isn’t inclusive enough for many of us, but it would at least offer a path by which someone could change their sex / gender for legal purposes.

Unfortunately, that’s not the way the Supreme Court interpreted the Equality Act. Their high-level reasoning seems to be:

Before the Gender Recognition Act, ‘sex’, ‘man’ and ‘woman’ referred to biological sex (paragraph 162).
The Equality Act didn’t modify these definitions (paragraph 164).
As one of the protected characteristics in the Equality Act is pregnancy, and only biological women can get pregnant, ‘sex’ must mean ‘biological sex’. Likewise for breast-feeding and maternity leave.

The Court admits that the Equality Act does not at any point use the word ‘biological’ in reference to sex – indeed the word does not appear anywhere in the Act – but asserts that ‘sex’, ‘man’ and ‘woman’ are ‘plain and unambiguous words’ (paragraph 171). This is an odd statement to make without any evidence, and the court rather hand-wavingly deals with this by saying they are ‘self-explanatory’ and ‘require no further explanation’ (paragraph 171). This is obviously not the case – if everyone agreed what the words meant then there wouldn’t be a need for the court to get involved.

The ‘certified sex’ interpretation, i.e. ‘women’ means cis women and trans women who have a GRC, is then criticised because it would exclude trans men with a GRC (paragraph 172). I’m really not sure what the court is getting at with this, because surely the main point of getting a GRC as a trans man is so that you’re legally recognised as male, and you don’t want to be included in a definition of ‘women’. Their argument seems to be that ‘certified sex’ is more complex than ‘biological sex’ and Parliament can’t possibly have intended the wider definition.

Another complexity argument is then raised (paragraph 173) on the grounds that it doesn’t make sense to include trans women with a GRC under ‘women’ because that requires knowledge of who has a GRC and that information is confidential. This is incorrect though, because your UK passport lists your gender and therefore you could use that as proof rather than your GRC⁵ – and this has the advantage of working for more people (though passport gender is binary at the moment).⁶ In fact passports undermine the court’s argument here further, because you can apply for a UK passport in your ‘acquired gender’, which doesn’t require a GRC.⁷

The Court also makes another irrelevant point in paragraph 184, using the example of the difference in the assessment of risk between male and female drivers for insurance purposes, and how adopting a ‘certified sex’ definition would have no rational basis. This ignores the fact that there was a ruling by the European Court of Justice in 2011 which stated that gender could not be taken into account when pricing insurance, so it makes no difference how you define ‘woman’ and ‘man’ (or any other gendered term).⁸

Normally when the Supreme Court makes a decision I can at least see the logic behind it, even if I don’t agree or it’s not the decision I wanted. In this case though I cannot see how they have taken an extremely clear definition in the Gender Recognition Act and said that it doesn’t apply in the Equality Act (which doesn’t redefine the terms ‘sex’ or ‘gender’ explicitly or dis-apply the GRA).

The implications of this are still being worked out, but the big change is that anything to do with ‘same sex’ will now presumably be decided based on sex assigned at birth, rather than the person’s current sex or gender. Or to put it another way, trans women, with or without a GRC, are men for the purposes of the Equality Act (and trans men are women and non-binary people must be placed in a binary category).⁹

I’ll now look at some of the background, including the legislation and how the Supreme Court operates. At the end there are some thoughts on what happens next and what you can do.

Equality Act 2010

The Equality Act 2010 is a piece of legislation which aimed to codify and bring up to date existing legislation to protect people from discrimination. It does this by defining ‘protected characteristics’, which are (s4):

age
disability
gender reassignment
marriage and civil partnership
pregnancy and maternity
race
religion or belief
sex
sexual orientation

Everyone with a protected characteristic is covered, not just those who are usually on the receiving end of discrimination. For example, although most sex discrimination claims around pay involve women being paid less than man for an equivalent job, paying a man less than a woman would also be grounds for a discrimination claim.

You can also be discriminated against if you are connected with someone with a protected characteristic (e.g. not inviting someone to work socials because they have a spouse who is trans) or because someone thinks you have a protected characteristic even though you don’t (e.g. assuming you have a disability). These are known as ‘discrimination by association’ and ‘discrimination by perception’ respectively, and don’t apply to all protected characteristics.

There are circumstances in which you are allowed to give more or less favourable treatment based on protected characteristics. These include:

Treating someone with a disability more favourably than someone without a disability.
Extra support for a woman in respect to pregnancy, childbirth and maternity.
The armed forces in relation to ‘combat effectiveness’.
Insurance quotations – e.g. you can charge older people more for life insurance because statistically they’re likely to die sooner.

The exceptions are limited though and not all of them apply in all circumstances or to all protected characteristics. If you discriminate in any other circumstance then you are probably breaking the law.

The Supreme Court

The Supreme Court is the highest court in the England, Wales and Northern Ireland for criminal cases, and for the whole of the UK in civil cases (i.e. anything that’s not criminal). Scottish criminal cases go to the High Court of Justiciary instead, because Scottish criminal law is different to the rest of the UK.

Cases only reach the Supreme Court if they raise an important and arguable point of law. You have to apply for and be granted permission to appeal to the Supreme Court, either at the court you’re appealing from or directly from the Supreme Court. Many applications to appeal are rejected, and this gives the court time to thoroughly consider each case that they take on – rightly so given their importance. There are also a few instances whereby an issue can be referred to the court by specific individuals or bodies, such as the Attorney General.

The UK Supreme court is different to the US Supreme Court, which tends to get into the news more frequently, in that:

Judges are interviewed and recommended by an independent body, not nominated by the head of government.¹⁰
Judicial appointments are not subject to confirmation by the legislative (Parliament in the UK, Congress in the US).¹¹
Appointments are not for life – judges must retire at 75.
The court cannot ‘strike down’ legislation as unconstitutional.
There are 12 judges (or justices) rather than 9, although it is unusual for all of them to sit on a case.
Although unanimous decisions are not required, they are fairly common and there is not a ‘split’ between different ‘groups’ of justices.

As a result, the UK Supreme Court is much less politicised and it’s rare that the judges are accused of bias.

The Supreme Court can affirm the judgement of a lower court or change it – including completely reversing the decision. The Supreme Court can also overturn judgements that it made in a previous case, though it is very careful and selective about when to do this as the purpose of having a final court of appeal is to give certainty in the law.

Statutory interpretation

This case is a classic example of a legal concept known as statutory interpretation, i.e. where this is disagreement between the parties as to what the law means (in this case the word ‘sex’). The role of the courts is to work out what meaning Parliament intended, based on the words and the context. It is not the role of the courts to come up with a meaning that they think is ‘correct’ in some way – Parliamentary intention is the goal, even if what Parliament intended now seems out of date, unfair or ‘wrong’. Generally this process takes place by looking at the wording of the legislation in question, and if it is still unclear then external resources can be taken into account, e.g. the explanatory notes that go alongside legislation but do not form part of the law.

Statutory interpretation is a well-defined process which has been refined over the years. Broadly speaking it falls into three ‘rules’:

Plain meaning rule: Unless the statue defines otherwise, words have their literal ordinary meaning. This is often sufficient, but arguably doesn’t give an answer in this case because ‘sex’ (and indeed ‘gender’) have different meanings to different people and in different contexts.

Golden rule: This intends to avoid literal interpretations when they would lead to absurdity or would be contrary to public policy. For example, the law against bigamy made it an offence if a person married someone else whilst their existing spouse was still alive and not divorced. Technically it is impossible to legally marry someone else in these circumstances, so the court decided that it would be absurd to apply this interpretation and instead ruled that the offence was going through a marriage ceremony.

Mischief rule: This looks at what ‘mischief’ (i.e. negative actions) the legislation was intended to prevent. For example, the Street Offences Act 1959 s1 made it an offence to ‘loiter or solicit in a street or public place for the purpose of prostitution’. Several people were charged under the Act for soliciting people who were walking by calling from their windows. Their defence was that they were not ‘in a street’ and therefore had not committed an offence. The court ruled that the intention of the legislation was to prevent the ‘mischief’ of people being solicited in the street, and therefore the actions of the defendants were covered, even though they were not technically ‘in’ the street.

On top of these rules, the general principle is that a word has a consistent meaning within the same piece of legislation, in this case ‘sex’ means the same throughout the Equality Act.

Interveners

Interveners are people or organisations who are not a party to the case but provide submissions (oral and / or written) to assist the court in coming to a decision.

Interveners are not the same as witnesses called by one of the parties. Witnesses are less common in the Supreme Court than in lower courts, because the Supreme Court is usually examining points of law rather than issues of fact. For example, the case of First Bus plc v Paulley arose because a wheelchair user attempted to board a bus, but the designated space was taken up by a woman with a pushchair. The driver asked the woman to fold up her pushchair, but she refused. Mr Paulley was unable to board the bus as a result, and had to wait for the next one.

In the lower courts, witnesses may have been called to establish the facts, i.e. did the bus driver ask the woman to move, did she refuse, was Mr Paulley unable to board the bus etc. However, the question that the Supreme Court considered was not what happened, but whether the bus operator had made ‘reasonable adjustments’ to accommodate users with disabilities. This required interpreting the law around discrimination, including the Equality Act 2010.

You can read the full details in the Practice Directions, but the summary is that:

Interveners have to apply to provide submissions.
Intervening in an earlier stage does not grant an automatic right of intervention at the Supreme Court.
Interveners have to provide additional assistance to the Court above what is provided by the submissions of the parties. Merely agreeing with one of the parties is not sufficient.

There is no guarantee that anyone will be given permission to intervene – even the UK government is sometimes refused (e.g. in the current case around car purchase financing).

Some criticism has been made of the choice of interveners in this case, particularly that there were no trans interveners (Amnesty International did provide written submissions in favour of including trans women as women). As the Court doesn’t always provide a list of applications to intervene, nor does it usually say why applications were refused, it’s difficult to know why this was the case. This means it can seem like the choice of interveners is arbitrary, and one area where I think the Court needs reform is to default to publicising the list of applications to intervene, the decision and the reasoning (unless there is a good reason not to, e.g. a risk to the applicant’s safety).

Conclusions

Despite what the Court says, this is a massive change and does take rights away from people. Stating that it ‘does not cause disadvantage to trans people’ (paragraph 265) makes no sense and contradicts the trans community saying that this absolutely does disadvantage them (and has caused an enormous amount of distress).

The judgement also states in paragraph 2 that:

It is not the role of the court to adjudicate on the arguments in the public domain
on the meaning of gender or sex, nor is it to define the meaning of the word “woman”
other than when it is used in the provisions of the EA 2010. It has a more limited role
which does not involve making policy.

Strictly speaking this is true – what the Court has done has decided what Parliament originally intended by the word ‘sex’ in the Equality Act, or to put it another way, ‘sex’ always meant ‘biological sex’ and therefore the legal position has been clarified rather than changed. However by interpreting the law in this way the court has affected policy – this is clearly the case as some public bodies (e.g. the British Transport Police) have already announced changes as a result. I think it is disingenuous to claim that the Court hasn’t made policy when it has made a decision that has significantly affected policy.

Overall, I do not think that the Equality Act on its own gives any indication of what Parliament meant by ‘sex’, I don’t think s9(1) of the Gender Recognition Act can be ignored when interpreting the Equality Act, and I disagree with the reasoning the Court has used to reach its decision (including several of its examples).

Where next and what can I do?

The main way to overturn the judgement is for Parliament to pass legislation defining ‘sex’ as something different to biological sex – at least for the purposes of equality law. Parliament can overrule the courts in the UK – if Parliament passes legislation which contradicts a previous court decision then the legislation takes precedence. Courts cannot ‘strike down’ legislation as being unconstitutional as they can in some other countries – partly because we don’t have a codified constitution which outranks any other legislation.

So what can you do if you disagree with the judgement? The obvious answer is ‘write to your MP’. It might sound like a waste of time – many MPs were gleefully cheering as soon as the decision was published – but it is possible to effect change this way. The example I usually give is the Climate Change Act, which came about mainly as a result of a concerted lobbying campaign and eventually only a handful of MPs opposed it.

If you want to do more than write a letter, you can ask your MP for a face to face meeting with you and other constituents who share your views – this can really bring home the strength of feeling to MPs. Your MP is there to represent you regardless of whether you voted for them, agree with their party’s policies, or even if you’re not eligible to vote (e.g. you’re a German citizen living in the UK). You should however only write to or ask for a meeting with your MP, not any others. MPs will generally only deal with correspondence from their own constituents, and contacting an MP outside of your constituency is unlikely to lead to positive results.

You can also support organisations that campaign on this issue or provide help to people affected by the judgement. Some examples are:

I’ve only listed organisations that people who know more about this than me have suggested. The reason for this is that some organisations make positive noises about issues and then when you take a closer look they turn out to not be as good as they make out.

You can follow trans people on social media and let them know you support them, and if they have a business you can buy something to help them financially – especially if they sell things like badges which you can use to indicate your support more widely.

Unfortunately I think this argument will, like many others in the past, take a long time to win. The Big Ask campaign took several years to achieve its immediate objective of the passing of the Climate Change Act, and even now we still haven’t cut our emissions by enough. So it’s going to be a long, hard slog to convince politicians that they should do something, and then to actually do it.