In a significant ruling, the Supreme Court has unanimously confirmed that the definitions of “woman”, “man” and “sex” for the purposes of the Equality Act 2010 (EA 2010) refer to biological sex.
In this blog, we explain the Supreme Court’s decision and highlight potential considerations for employers.
The case of For Women Scotland Ltd v The Scottish Ministers originated as a dispute about the interpretation of "woman" in the Gender Representation on Public Boards (Scotland) Act 2018. This legislation created gender targets to increase the proportion of women on public boards in Scotland. The Scottish Government proposed including anyone with a Gender Recognition Certificate (GRC) recognising their gender as female in the definition of “woman” for these targets. A GRC is a document that allows someone to change their gender legally.
The campaign group For Women Scotland (FWS) brought a case challenging this interpretation. It argued instead that the definition of a “woman” under the EA 2010 (and by extension, the Scottish legislation) refers to biological sex and that a trans woman with a GRC remains biologically male.
This argument was rejected by the Scottish Courts and FWS appealed to the Supreme Court. The central question before the Supreme Court was whether the term “sex” under the EA 2010 refers solely to “biological sex” (the sex of a person at birth) or includes “certified sex” (someone’s gender acquired under a GRC).
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