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Ruling on ‘woman’ in British equality law

Britain’s Supreme Court has unanimously ruled that the term ‘woman’ in British equality legislation refers to a biological woman.

The appeal to the court arose from legislation passed by the Scottish parliament in 2018 that created gender-representation targets to increase the proportion of women on public boards in Scotland.

Guidance associated with the legislation stated that a person with a Gender Recognition Certificate (GRC) recognising their gender as female was considered a woman for the purposes of the act.

A GRC is a document that allows trans people to change their gender legally.

A Scottish campaign group, For Women Scotland, challenged the legality of the statutory guidance.

‘Practical problems’

The judges found that the Equality Act 2010 in its “context and purpose, demonstrate that the words ‘sex’, ‘woman’ and ‘man’ … mean (and were always intended to mean) biological sex, biological woman and biological man”.

The judges referred to “practical problems” that would arise from a certificated-sex approach, adding that such an approach “would also create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans people who possess a GRC greater rights than those who do not”.

The court said that its interpretation of the 2010 act did not remove protection from trans people, with or without a GRC, pointing to provisions on direct discrimination and harassment.