Women Scotland Ltd v The Scottish Ministers
Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) [2025] UKSC 16
Facts
This case involved an appeal brought by For Women Scotland Ltd (FWS), a feminist voluntary organisation, against the Scottish Ministers. At its heart was the correct interpretation of the Equality Act 2010 (EA 2010), specifically the meaning of the terms "sex," "man," and "woman" within its provisions, and how the Gender Recognition Act 2004 (GRA 2004) affected these definitions. This legal challenge has significant implications for both women and members of the trans community, who are both statutorily protected against discrimination.
The appeal arose from FWS's second judicial review concerning statutory guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act). The 2018 Act's objective is to achieve 50% representation of women as non-executive members on public boards. Initially, the 2018 Act defined "woman" to include individuals who had undergone or were undergoing gender reassignment and were living as women. However, in a prior judicial review, the Court of Session's Inner House ruled that this definition of "woman" in the 2018 Act exceeded the legislative competence of the Scottish Parliament because it encroached upon "Equal opportunities," a matter reserved to the UK Parliament.
Following this decision, the Scottish Ministers issued revised statutory guidance in April 2022. This new guidance asserted that, with the nullification of the 2018 Act's original definition, "woman" should be interpreted in line with sections 11 and 212(1) of the EA 2010. Crucially, it maintained that if a person had been issued a full Gender Recognition Certificate (GRC), their sex legally became that of a woman "for all purposes," and thus they would count towards the 50% gender representation target. This stance was consistent with advice provided by the Equality and Human Rights Commission (EHRC). FWS subsequently challenged this revised guidance, arguing it was unlawful due to an error of law. The appeal specifically centred on the legal status of the small minority of trans people who possess a full GRC.
Held
The Supreme Court allowed the appeal, thereby overturning the earlier decisions of both the Outer House and the Inner House of the Court of Session, which had previously dismissed FWS's challenge.
The Supreme Court unanimously ruled that the terms "sex, woman, and man" in sections 11 and 212(1) of the EA 2010 mean biological sex, biological woman, and biological man, respectively. Consequently, this means that a trans man with a GRC (who is biologically female but legally male for purposes where section 9(1) of the GRA 2004 applies) is considered a woman for the purposes of section 11 of the EA 2010. Conversely, a trans woman with a GRC (who is biologically male but legally female for purposes where section 9(1) applies) is considered a man and is not entitled to be treated as a woman under the EA 2010 for sex discrimination purposes.
As a result of this interpretation, the Court concluded that a person holding a GRC for the female gender does not fall within the definition of "woman" for the purposes of sex discrimination as defined in section 11 of the EA 2010. This also implies that the definition of "woman" in section 2 of the 2018 Act, which the Scottish Ministers agreed must carry the same meaning as in the EA 2010, is restricted to biological women and does not include trans women with a GRC. By interpreting the 2018 Act in this manner, the Supreme Court found it to be within the legislative competence of the Scottish Parliament.
The Supreme Court determined that the EA 2010 "makes provision within the meaning of section 9(3) of the GRA 2004 that disapplies the rule in section 9(1) of the GRA 2004." This signifies that while section 9(1) of the GRA 2004 generally states that a person's gender becomes their acquired gender "for all purposes," this general rule is superseded when the terms, context, and purpose of another enactment, such as the EA 2010, demonstrate a clear incompatibility or would render its provisions incoherent or unworkable if the GRC rule were applied.
Comment
The Supreme Court's judgment provided a comprehensive analysis of statutory interpretation, stressing the importance of clarity, consistency, and predictability in the application of the EA 2010. The Court concluded that an interpretation where having a GRC changes a person's legal sex for all purposes under the EA 2010 (a "certificated sex" interpretation) would result in incoherence and unworkability across several crucial provisions of the Act.
The Court's reasoning for adopting a "biological sex" interpretation was multi-faceted:
Historical Context -The Sex Discrimination Act 1975 (SDA 1975), the predecessor to the EA 2010, clearly referred to biological sex, and subsequent amendments, including those related to the GRA 2004, did not alter this fundamental definition. As a consolidating statute, the EA 2010 was not intended to introduce such a substantive change.
Pregnancy and Maternity Provisions - Provisions within the EA 2010 concerning pregnancy, childbirth, and breastfeeding are explicitly linked to the biological capacity of women. The Court stated that these provisions "can only be interpreted coherently as references to biological sex, biological females and biological males." A "certificated sex" interpretation would create absurd scenarios, such as a "pregnant man" (a trans man with a GRC, biologically female but legally male) being excluded from protections intended for biological women.
Rejection of Variable Definition - The Court explicitly rejected the Inner House's suggestion that "sex" could hold a variable meaning within the Act (biological for pregnancy, certificated elsewhere). Such an approach would lack the necessary clarity, constancy, and predictability required for individuals and organisations to understand and apply the law effectively.
Distinct Protected Characteristics - The EA 2010 designates "sex" and "gender reassignment" as separate and distinct protected characteristics. A "certificated sex" interpretation would create an "odd inequality of status" between trans people with and without a GRC, despite their often similar outward characteristics, posing difficulties for duty-bearers who cannot inquire about GRC status due to confidentiality rules, potentially pushing organisations towards de facto self-identification.
Sexual Orientation - Section 12, which defines sexual orientation, relies on a biological understanding of sex ("persons of the same sex," "persons of the opposite sex"). If a GRC altered legal sex for this purpose, a biological male (a trans woman with a GRC) attracted to women would legally be considered "lesbian," which the Court found to be "meaningless" and detrimental to the freedom of association for lesbians and the operation of single-sex associations.
Single-Sex Services and Communal Accommodation - Provisions that permit separate or single-sex spaces (e.g., changing rooms, hostels, medical services) and communal accommodation are designed to safeguard privacy and decency between biological sexes. A "certificated sex" interpretation would render these provisions unworkable, as it would be difficult to justify excluding someone based on biological sex if their legal sex was acquired through a GRC.
Public Sector Equality Duty (PSED) and Positive Action - These provisions (sections 149, 158, 159) aim to address disadvantages affecting groups with shared protected characteristics. A "certificated sex" interpretation would create heterogeneous groups (e.g., "women" including biological women and biological men with GRCs), making it challenging to collect meaningful data, assess shared needs, or implement effective positive action measures for distinct groups like biological women or trans people.
EHRC's Concerns - The Court noted that the EHRC itself had informed the UK Government of "profound difficulties" in applying the EA 2010 if "sex" were interpreted as "certificated sex." The EHRC had suggested a need for legislative amendment in various areas, including pregnancy, freedom of association, single-sex services, sport, and data collection. The Court viewed these acknowledged problems as strong indicators that the "certificated sex" interpretation was incorrect.
Protection for Trans People - The Court explicitly stated that its interpretation does not disadvantage or remove important protection from trans people (whether or not they hold a GRC). They continue to be protected by provisions against direct discrimination based on gender reassignment, discrimination by perception (e.g., a trans woman perceived as a woman being discriminated against on the basis of sex), and indirect discrimination.
In conclusion, the Supreme Court found that a "biological sex" reading is the "only correct one" for the EA 2010, ensuring its coherence and practical operation, and that this interpretation does not undermine the Gender Recognition Act's purpose or the protections afforded to trans people.
