The Supreme Court has ruled that the legal definition of a woman under the Equality Act 2010 is based on biological sex.

In the case of For Women Scotland Ltd vs The Scottish Ministers, Judge Lord Hodge said: “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.

“But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.”

The decision comes after a long-running battle between the Scottish government and campaign group For Women Scotland, who objected to a proposed amendment to the Gender Representation on Public Boards (Scotland) Act 2018.

This proposed expanding the scope of the legislation to include all trans women, including those who did not have a gender recognition certificate.

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FWS launched a judicial review, arguing that the Scottish government had used too wide a definition of “woman”, and the inner court of session in Edinburgh agreed.

MSPs in Scotland then revised statutory guidance to follow the Equality Act 2010, which would include transgender women who did have a GRC within the definition of woman.

FWS objected to this and launched another judicial review, which was dismissed. Through a crowdfunder and support from author JK Rowling, the group brought the case to the Supreme Court.

The key decision the Supreme Court needed to make was whether a person with a GRC who recognises their gender as female should be regarded as a woman under the Equality Act, meaning they would therefore gain protective rights such as the right to equal pay and protection from discrimination.

Under the Gender Recognition Act of 2004, people can obtain a GRC, which states this is a change of sex “for all purposes”. However, the subsequent Equality Act 2010 then outlined protections against discrimination for various groups, with protected characteristics under law including “sex” and “gender reassignment”.

How these two pieces of legislation interact was one of the focuses of the Supreme Court’s ruling.

Lord Hodge insisted that the Equality Act would still give trans people protection against discrimination.

“As I shall explain later in this hand down speech, 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,” he said.

The judges argued that including people with a GRC in the definition of sex for the purposes of the Equality Act would make it read in an “incoherent way”. Issues relating to pregnancy and maternity can only be interpreted as referring to biological sex, while other parts of the Act refer to “certificated sex”.

Implications for employers

Phillip Pepper, employment partner at law firm, Shakespeare Martineau, said that while the ruling could create “further division and increase tensions” in the short term, it would offer “long-term clarity for businesses which have been left to interpret ambiguous, contradictory legislation on their own until this point, potentially landing in hot water as a result”.

Recent legal disputes involving changing rooms, including a tribunal brought against NHS Fife by nurse Sandie Peggie, and a group of nurses in Darlington against their NHS Trust, have highlighted the thorny legal issues associated with providing single-sex spaces at work.

Pepper added: “The Equality Act urgently needs to be updated to ensure that transgender individuals don’t lose any of the protections they currently have from discrimination, and prevent potential inequality of treatment that may occur as a result of this judgement.”

He added that employers should take extra care to ensure that transgender employees feel safe, represented and valued in the workplace.

“We counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another, it is not.” – Lord Hodge, Supreme Court judge

“Employers may have to rethink their policy towards single-sex spaces in the workplace, such as bathrooms and changing rooms, and ensure that all individuals have a suitable space that they feel comfortable in when needing to use those facilities,” he said.

“Some workplaces have become divided on the issue, which means communication, training and zero tolerance on bullying will be vital to ensure that transgender employees do not feel uncomfortable at work.

While this decision will be disappointing for some, it ultimately offers a clear path forward for employers who can now ensure they stay on the right side of law.”

Rob McKellar, legal services director at Peninsula, also welcomed the legal clarity brought by the ruling.

“The main takeaway here for employers is that although this ruling has confirmed that in the Equality Act 2010 the words ‘woman’ and ‘sex’ refer to biological sex, transgender people are still protected under the Act,” he said.

“The ruling does not change the fact that employers should strive to provide an inclusive workplace that embraces and welcomes all individuals, regardless of any protected characteristics, and failure to do so could result in a discrimination claim at tribunal.”

Jo Moseley, an employment law associate at Irwin Mitchell, agreed that the decision would make it easier for employers to understand the rules around providing single-sex and separate sex spaces and services, as well as those around appointing someone of one sex where there is a genuine occupational requirement.

“It will also mean that employers will be able to understand the correct comparator in sex discrimination and sexual orientation claims and take positive action to support women to progress at work,” she explained.

“It doesn’t leave trans people without protection. The Supreme Court made it very clear that they are protected under the gender reassignment provisions in the Equality Act and will be able to bring claims if they are discriminated or harassed.

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For example a trans woman will be able to bring a sex discrimination claim if they are disadvantaged because they are perceived to be a woman or because they associate with a woman. Similarly, 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.

“Ultimately this decision gives employers much needed legal certainty and will help them to make legally compliant decisions.”