The GRA 2004 is the statute that established a framework permitting a person aged 18 or over to apply to a Gender Recognition Panel for a Gender Recognition Certificate (GRC) on the basis of “living in the other gender”, with section 9(1) providing that on the issue of a full GRC “the person’s gender becomes for all purposes the acquired gender” subject to section 9(3) which limits this application by any “provision made by this Act or any other enactment or any subordinate legislation.”
The central question was whether the EA 2010 treats a trans woman with a GRC as a woman for all purposes within the scope of its provisions, or whether, when that Act speaks of a “woman” and “sex,” it is referring to a biological woman and biological sex.
The case lay at the intersection of two protected groups whose interests the EA 2010 simultaneously seeks to safeguard. On one hand stood biological women, whose sex-based rights (to, for example, single sex services, separate spaces, pregnancy and maternity protection, equal pay, and positive action measures designed to redress entrenched disadvantage) depend on the legislature’s ability to identify the group with precision. On the other stood trans people, a population of whom only a small minority hold a GRC and whose dignity, privacy and protection from discrimination the EA 2010 also secures.
The appellant, For Women Scotland Ltd, argued that “sex” in the EA 2010 carries its ordinary...
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