The Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers will mean changes in how trans people in the UK access services and single-sex spaces.
In the highly anticipated judgement announced April 17, the court ruled that the definition of "sex", "man" and "woman" in the Equality Act refers to "biological sex". It found that this does not include those who hold a gender recognition certificate (trans people who have had their chosen gender legally recognised). In simple terms, "women" does not include transgender women.
It is important to note that the court’s remit was focused on interpretation of existing laws, not creating policy. The court affirmed that trans people should not be discriminated against, nor did they intend to provide a definition of sex or gender outside of the application of the Equality Act.
The prime minister has said he welcomes the "real clarity" brought by the ruling. But while it may bring some legal clarity, questions remain about the practical implementation. The judgement also raises new questions about the operation of the Gender Recognition Act, and what it now means to hold a gender recognition certificate.
The gender-critical feminist group For Women Scotland challenged the Scottish government’s guidance on the operation of the Equality Act in relation to a Scottish law that sets targets for increasing the proportion of women on public boards.
The definition of a "woman" for the purposes of that law included trans women who had undergone, or were proposing to undergo, gender reassignment.
The issue that the court had to address was whether a person with a full gender recognition certificate (GRC) which recognises that their gender is female, is a "woman" for the purposes of the Equality Act 2010. The Act gives protection to people who are at risk of unlawful discrimination.
The court’s decision was that the meaning of "sex" was biological and so references in the Act to "women" and "men" did not, therefore, apply to trans women or trans men who hold GRCs.
Prior to the ruling, there were contested views as to whether trans people could access certain single-sex spaces — some of the most contentious being prisons, bathrooms and domestic abuse shelters.
The ruling does not require services to exclude trans people from all single-sex spaces. It does, however, clarify that if a service operates a single-sex space, for example a gym changing room, then exclusion is based on biological sex and not legal sex. Neither the court nor the government has said how "biological sex" would be defined or proven.
A service provider may operate a single-sex space on the basis of privacy or safety of users. To base this on biological sex must be a proportionate means of achieving a legitimate aim — for example, the safety of women in a group for abuse survivors. This means that service providers may still operate trans-inclusive policies, but they may open themselves to legal challenge.
The Gender Recognition Act 2004 introduced gender recognition certificates (GRCs), which certify that a person’s legal gender is different from their assigned gender at birth. A trans person can apply for a GRC in order to change their gender on their birth certificate. For legal purposes, they are then recognised as their acquired gender.
The ruling does not strike down or affect the operation of the Gender Recognition Act. But it does give the impression that the GRA — and holding a GRC — is now less effective.
In order to be granted a GRC, a person must show that they have lived in their acquired gender for at least two years and that they intend to live in that gender until death. Their application must be approved by two doctors, but — in what was a world-first at the time it was introduced — does not require any medical transition.
The Supreme Court states that trans people (with or without a GRC) will still be protected from discrimination. Sex and gender reassignment are both protected characteristics under the Equality Act. This means that trans people may still rely on the law to protect them from direct or indirect discrimination levelled at them on the basis of being trans, or because of their perceived sex.
— Alexander Maine is a senior law lecturer, City St George’s, University of London.
