The UK Supreme Court has ruled that the protected characteristic of ‘sex’ as outlined in the Equality Act refers to ‘biological’ women and not trans women. These are the key takeaways you need to know.
Following a two-day hearing in London in 2024, the 88-page judgement by the court’s justices was delivered on Wednesday (16 April).
“The unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex,” Supreme Court judge Lord Hodge said in the landmark case.
He added trans folks still have protection against discrimination under the law and the judges “counsel against reading this judgement as a triumph of one or more groups in our society at the expense of another, it is not”.
The case was brought forward on appeal by gender-critical group For Women Scotland (FWS) – which has reportedly been supported by author JK Rowling – against the Scottish government after judge Lady Haldane’s previous ruling in December 2022, which found that sex is not limited to biology.
FWS asked the five Supreme Court justices to consider the following question: “Is a person with a full Gender Recognition Certificate (GRC) which recognises that their gender is female, a ‘woman’ for the 2010 Equality Act?”
At the heart of the case, the judges had to decide if the protected category of ‘sex’ is based solely on the biology a person is born with, such as their reproductive organs and chromosomes, or if it is something that can change based on gender identity and the gender-recognition process.
There are a number of key takeaways from the ruling, which will be outlined below. However, it is important to stress that the full impacts of the ruling – and how it will effect the day-to-day lives of trans folks – will only begin to emerge in the days, months and years to come.
‘Sex’ in the Equality Act refers to biological sex only, says the Supreme Court
The ruling states that the legal definition of sex – and in essence the legal definition of what a woman is – as stated in the Equality Act is ‘biological’ and does not include trans folks with a Gender Recognition Certificate (GRC).
The judgement notes “group-based rights or protections” under the Equality Act 2010 “recognise that people who share a particular protected characteristic (known or perceived) often have common experiences or needs, whether arising from differences of biology or physiology, or societal expectations or structures affecting their group”.
It goes on to state the “concept of sex is binary” and a “person is either a woman or a man”, even though the word ‘biological’ does not appear in the Equality Act.
For reference, the Equality Act defines the ‘protected characteristic of sex’ as:
“a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;
“b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.”
The judges state there is a “strong indicator” that that the words “sex”, “man” and “woman” have a biological meaning from the sections in the Equality Act that refer to “sex, pregnancy and maternity discrimination”.
“The protection afforded by these provisions is predicated on the fact of pregnancy or the fact of having given birth to a child and the taking of leave in consequence. Since as a matter of biology, only biological women can become pregnant, the protection is necessarily restricted to biological women,” it adds.
In this regard, the judgement reads: “Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men.
“Although the word ‘biological’ does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman.
“These are assumed to be self-explanatory and to require no further explanation. Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group.”
Judges have differentiated between ‘certificated sex’ and ‘biological sex’ in their ruling
By contrast, in the ruling, the judges decided that ‘certificated sex’ – or “sex attained by the acquisition of a GRC” – is not the same as biological sex.
In his verbal summary of the decision, Lord Hodge said: “Interpreting sex as certificated sex would cut across the definitions of man and woman in the EA and thus the protected characteristic of sex in an incoherent way. It would create heterogeneous groupings.
“As a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity and to protection from risks specifically affecting women, can only be interpreted as referring to biological sex.”
In the 88-page ruling itself, the judges state: “A certificated sex interpretation would cut across the definition of the protected characteristic of sex in an incoherent way.
“References to a “woman” and “women” as a group sharing the protected characteristic of sex would include all females of any age (irrespective of any other protected characteristic) and those trans women (biological men) who have the protected characteristic of gender reassignment and a GRC (and who are therefore female as a matter of law).
“The same references would necessarily exclude men of any age, but they would also exclude some (biological) women living in the male gender with a GRC (trans men who are legally male). The converse position would apply to references to “man” and “men” as a group sharing the same protected characteristic.
“We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.”
Access to single-sex spaces can be determined by ‘biology’
Access to single-sex spaces has no doubt been the key issue in many legal cases related to interpretations of the Equality Act, trans rights and sex as a protected category, with the Supreme Court ruling seemingly also making a judgement on who can use them.
Single-sex spaces and services refers to areas which are often split by sex, such as toilets, hospital wards, prisons and domestic abuse refuges and crisis centres.
A press summary for the case states single-sex services “require a biological interpretation of ‘sex’ in order to function coherently” and “similar confusion and impracticability” had arisen in regards to single-sex associations and charities, women’s sport, public sector equality and the armed forces.
“The practical problems that arise under a certificated sex approach are clear indicators that this
interpretation is not correct,” it reads whilst in the 88-page document it states: “Read fairly and in context, the provisions relating to single-sex services can only be interpreted by reference to biological sex.”
Beyond the category of ‘sex’ the judges noted the impact a “certificated sex interpretation” would have on those with the protected characteristic of sexual orientation, stating it would “weaken” protections given to certain groups, such as lesbians, to have “lesbian-only spaces and associations”.
Trans people are still protected from discrimination under the Equality Act and can bring sex discrimination cases
The judges insisted that despite the ruling deciding that trans people are not included in the category of ‘sex’, they are still protected from discrimination through the protected characteristic of ‘gender reassignment’ and other elements of the ‘sex’ category.
In his verbal summary, Lord Hodge said: “The Equality Act 2010 gives transgender people protection, not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender”.
Within the ruling itself the judges state: “A man who identifies as a woman who is treated less favourably because of the protected characteristic of gender reassignment will be able to claim on that basis.
“A man who identifies as a woman who is treated less favourably not because of being trans (the protected characteristic of gender reassignment) but because of being perceived as being a woman will be able to claim for direct sex discrimination on that basis.”
It adds this “does not entail any practical disadvantage and there is no discordance (as the Scottish ministers appear to suggest) between the individual’s position in society and the ability to claim on this basis”.
The ruling also states a ‘certificated sex reading’ of the Equality Act is “not necessary” in this situation because “the approach applies equally whether or not the claimant has a gender recognition certificate”.
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