Court clarifies that transgender individuals are still protected under the Equality Act 2010 through its provisions on indirect discrimination
The Supreme Court has delivered a landmark judgment stating that, under equality legislation, the term “woman” excludes trans women and refers specifically to individuals born as females.
In a unanimous ruling, the court clarified that the legal definition of “woman” in the context of the Equality Act (EA) 2010 is based on biological sex rather than gender identity.
A group of campaigners in Scotland brought the challenge in 2018, arguing that those rights should only safeguard those assigned as women at birth. But the Scottish government said that a trans woman with a GRC is legally a woman and should therefore be afforded the same legal protections.
In its judgment, the court said, “The Supreme Court unanimously allows the appeal. It holds that the terms ‘man,’ ‘woman,’ and ‘sex’ in the EA 2010 refer to biological sex. Lord Hodge, Lady Rose and Lady Simler give a joint judgment, with which the other Justices agree.
It added, “The definition of sex in the EA 2010 makes clear that the concept of sex is binary, a person is either a woman or a man. 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.”
The court further clarified that transgender individuals are still protected under the Equality Act 2010 through its provisions on indirect discrimination, regardless of whether they possess a Gender Recognition Certificate (GRC).
“Consequently, transgender people (irrespective of whether they have a GRC) are protected by the indirect discrimination provisions of the EA 2010 without the need for a certificated sex reading of the EA 2010, both in respect of any particular disadvantage suffered by them as a group sharing the characteristic of gender reassignment and, where members of the sex with which they identify are put at a particular disadvantage, insofar as they are also put at that disadvantage. Again, this does not entail any practical disadvantage or involve any discordance between the claim and the individual’s position in society. On the contrary, the claim will be founded on the facts of a particular shared disadvantage. Transgender people are also protected from indirect discrimination where they are put at a particular disadvantage which they share with members of their biological sex,” the ruling said.
Meanwhile, the co-founder of TransActual Chay Brown has said trans people have been used as a “political punching bag.” Brown questioned whether the gender recognition certificate he had was now “worthless”. “I woke up this morning as a transgender man… I’m lost,” he said.
“Lost, questioning all my rights and protections. When I nip to the loo tonight on the way home at Euston, if I go in the men’s, is someone going to tap me on the shoulder and tell me you’re not allowed to be in here? We’re really unclear. And quite frankly, trans people are terrified.”
Brown added that the trans community was feeling “abandoned”. “Over the last five years trans people have been used as a political punching bag,” Brown said. “A trans organisation wanted to intervene in the court case – it was denied. And yet several organisations on the other side were allowed to intervene.”
As part of the ruling, the Supreme Court said transgender women with a gender recognition certificate (GRC) could be excluded from single-sex spaces if “proportionate”. Single-sex spaces include female-only lavatories, changing rooms and hostels.
“If sex means biological sex, then provided it is proportionate, the female-only nature of the service…would permit the exclusion of all males including males living in the female gender regardless of GRC status,” the five justices said in their 88-page report.
They added: “If as a matter of law, a service provider is required to provide services previously limited to women also to trans women with a GRC, even if they present as biological men, it is difficult to see how they can then justify refusing to provide those services also to biological men and who also look like biological men.”
The government earlier said: “We have always supported the protection of single-sex spaces based on biological sex. This ruling brings clarity and confidence, for women and service providers such as hospitals, refuges, and sports clubs. Single-sex spaces are protected in law and will always be protected by this government.”
