Supreme Court decision on the definition of a woman under the Equality Act

The Supreme Court’s decision in For Women Scotland Ltd v The Scottish Ministers received a lot of publicity last week.

The case itself related to rules around the composition of public boards in Scotland, which require that 50% of non-executive members  must be women. The legislation stated that a transgender woman would count as a woman for the purposes of this 50% threshold.

The campaign group For Women Scotland applied for judicial review on the basis that it was beyond the legislative competence of the Scottish Parliament to make the decision that a transgender woman would count as a woman. The Scottish ministers then clarified that where a full gender recognition certificate was in place, the individual would be a woman for the purposes of the threshold. A further judicial review application was made which eventually made its way to the Supreme Court.

The issue before the Supreme Court was whether the term “woman” under the Equality Act could relate only to a biological woman or could be interpreted as including a transgender person holding a GRC as a woman. The Supreme Court found that its interpretation of the Equality Act was that the reference to a woman was a reference only to a biological woman.

Therefore, only a biological woman can bring a claim for sex discrimination. The Court considered that it was important that the Equality Act is interpreted in a clear and consistent way in order that protected groups can be identified by employers and service providers. It would also not be appropriate to effectively create two groups within the protected group of gender reassignment: those with a GRC and those without.

The Court did emphasise that its decision does not impact on the protection against discrimination on grounds of gender reassignment, which is still in full force. Nor did their decision prevent a transgender individual with a GRC bringing a claim on the grounds that they had been perceived to be a woman. It does, however, prevent a transgender individual with a GRC bringing a claim for sex discrimination on the grounds that they are a woman.

The Court acknowledged that its decision would have a significant impact on single sex services, education institutions and separate spaces, which are all areas where there has been uncertainty for some time. The EHRC have indicated that they will soon be providing updated guidance as to the impact of the decision.