Can the meaning of "sex" in the Equality Act vary depending on context?

This post is a part of a series that I am doing in the legal aspects and implications of the appeal in For Women Scotland v The Scottish Ministers that will be heard by the UK Supreme Court at the end of November 2024.

The central question to be decided in this case is whether guidance issued by the Scottish Government about the meaning of the word “woman” in the Equality Act 2010 (EqA) is lawful. That guidance states that a person with a full Gender Recognition Certificate (GRC) which confers upon them the acquired gender of female is a woman for the purposes of the Equality Act 2010. For Women Scotland have challenged the accuracy and therefore lawfulness of this guidance, claiming that the definition of woman in the Equality Act is tied to natal biological sex.

Over the next few posts, I want to draw out in short digestible posts some of the points I make in my longer piece examining the publicly available submissions. This post concerns the argument, accepted by the Inner House of the Court of Session, that the meaning of sex can vary within the Equality Act depending on context. I think this is the lynchpin of this case. If the Supreme Court concludes that sex must have a fixed meaning, the overwhelming weight of caselaw on statutory interpretation pushes heavily towards the conclusion that sex must mean biological sex. If it concludes that sex can vary depending on context, then things get much more confused and there is potential for the Court to leave the law in more of a mess than it found it by making this finding and providing little in the way of guidance for duty-bearers under the Act.

Much of this turns on what we think the court will conclude was Parliament’s intention when it passed the GRA and the Equality Act. It should be stressed here that this is not an empirical question: the court is not asking what each memeber of Parliament thought it was doing or what the government thought it was doing. The intention of Parliament is an objective legal concept, constructed by the Court based on established principles of statutory interpretation. A useful summary of this legal position comes from R v. Secretary of State for the Environment ex p Spath Holme, (2001) 1 All ER 195, per Lord Nichols:

“Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

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“As Lord Reid said in Black-Clawson International Ltd v PapierwerkeWaldhof-Aschaffenburg A G [1975] AC 591, 613:

'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.'

In identifying the meaning of the words used, the courts employ accepted principles of interpretation as useful guides. For instance, an appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute. Another, recently enacted, principle is that so far as possible legislation must be read in a way which is compatible with human rights and fundamental freedoms: see section 3 of the Human Rights Act 1998. The principles of interpretation include also certain presumptions. To take a familiar instance, the courts presume that a mental ingredient is an essential element in every statutory offence unless Parliament has indicated a contrary intention expressly or by necessary implication.”

With this in mind, here are some relevant paragraphs from my longer piece:

5. Lady Dorrian concluded that the definition of sex can include both biological sex and certificated sex depending on the context. In particular, she stressed that the terms of the EqA “do not, on their face, or in the context in which they occur, mandate the adoption of a biological interpretation” (FWS2, IHCS, [47]). FWS argue that this approach is more consistent with a definition reliant on the term '“includes” and is not consistent with a definition reliant on the term “means” where the definition refers to “male” and “female”.

6. Both FWS and Lady Dorrian argue that Parliament can be readily taken to have been aware of the provisions in the GRA when it enacted this definition of sex. Lady Dorrian infers from the fact that Parliament must have been aware of s9(1) and that it did not expressly or by necessary implication exclude certificated sex, the presumption must hold in favour of s9(1), except where context dictates that references to sex do, by necessary implication exclude certificated sex.

7. Effectively, Lady Dorrian considered there to be a strong presumption in favour of a s9(1) reading of the EqA; if it is possible to interpret the terms “man”, “woman”, “male” and “female” in a way which accommodates those in possession of a GRC, then that is the correct interpretation for all parts of the Act where it would not lead to absurdity or unworkability. Where it would, a biological definition can be relied on as an exception to the default. This position is heavily reliant on sex having a variable meaning in the EqA: if it does not, the absurdity and unworkability of core provisions relating to women in particular would militate heavily in favour of the interpretation favoured by FWS, Sex Matters and the Scottish Lesbians. Indeed, that interpretation relies heavily on the absurdity and unworkability of a s9(1) reading to support the claim that the correct interpretation of sex is a biological one.

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9. The conventional approach to statutory interpretation is summarised by Lord Hope in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61, at [14]: “The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. That will be achieved if the legislation is construed according to the ordinary meaning of the words used”. Accordingly, even absent a statutory definition, there would be a presumption that where the same word appears more than once in the same Act, it bears the same meaning throughout.

10. Section 11 of the EqA10 defines the protected characteristic of sex as ‘a reference to a man or to a woman’. The presumption in Imperial Tobacco implies that this definition be given a coherent, stable and workable interpretation in accordance with the ordinary meaning of the words. This presumption is displaced, however, because s.212 EqA10 provides a statutory definition for ‘man’ and ‘woman’. Where a statutory definition is provided, it is the meaning of that definition that is relevant, not the ordinary meaning of the words to be defined.

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11. In my view, Lady Dorrian erred at [53] in suggesting that the meaning of terms defined in a statutory definition can vary across the Act because “it is neither practical nor necessary for the court to attempt to examine every action and every schedule of an Act”. On the contrary, the presumption is one of consistency of language throughout the Act and that “the controversial provisions should be read in the context of the statute as a whole” (R v Secretary of State for Health, ex p Quintavalle [2003] UKHL 13, at [8]). As the Supreme Court noted in Assange v Swedish Prosecution Authorities [2012] UKSC 22, at [75]:

    “When considering the meaning of a word or phrase that is used more than once in the same instrument one starts with a presumption that it bears the same meaning wherever it appears. That is not, however, an irrebuttable presumption. It depends upon the nature of the word or phrase in question and the contexts in which it appears in the instrument.”

12. While this presumption can be rebutted, it must be argued for as a matter of proper construction, not stipulated because the task of reading the statue as a whole is impractical. The general rule is that statutory provisions should be read in the context of the statute as a whole (R (O) v Home Secretary [2023] AC 271, at [29]). That means that when a provision is contested, the correct approach is to look to the Act as a whole and see how different interpretations would affect the operation of the Act. If one interpretation would render significant parts of the Act unworkable or absurd, there is a strong presumptions that Parliament did not intend to adopt that meaning. Looking to the Act as a whole is meaningless if the intention is not to identify an interpretation which works for the whole Act.

13. This presumption in favour of a consistent meaning is reinforced in this case because there are statutory definitions provided. The purpose of statutory definitions is precisely to fix meaning throughout legislation, especially when dealing with an Act such as the EqA which is based heavily upon referencing back to the list of protected characteristics set out in Part 1. While a term could have a statutory meaning but as a rare exception, that might be taken to be displaced as a result of genuine drafting error, this principle cannot be used to adopt an innovative approach to interpretation entirely. As the Court of Appeal Noted in Secretary of State for Work and Pensions v M [2004] EWCA Civ 1343, at [84] in the context of statutory presumptions created by the Human Rights Act:

    The saving for context in a definition section is a standard device to spare the drafter the embarrassment of having overlooked a differential usage somewhere in his text (and it will be a comfort that the only examples in Bennion Statutory Interpretation (4^th ed), §373, of such differential usage come from statutes of 1833, 1855 and 1861). To use it as a vehicle for the innovative approach to interpretation created by s.3 of the Human Rights Act is, in my judgment, to overload it to the point of breakdown.

14. In order for this to be consistent with a variably approach to the meaning of sex, references to sex which clearly and unambiguously can only mean biological sex, such as in the context of a pregnant woman, same-sex sexual orientation, or the establishment conditions for single-sex services, would need to be determined to have been embarrassing drafting errors. An appeal to terms varying depending on context, where there is a statutory definition, cannot be used as a vehicle for an innovative approach to interpretation. It cannot be used in the context of s3 of the Human Rights Act and it cannot be used in the context of s9(1) GRA.

15. The interpretative obligation in the Human Rights Act is, on any argument, considerably stronger than any obligation arising from s9 GRA. Section 3 HRA requires court to '“so far as it is possible to do so” read and give effect to legislation in a way which is compatible with Convention rights. Section 6 HRA places an additional duty on courts not to act in a way which is incompatible with a Convention right. That is a strong combination of obligations which act as “a filter through which the meaning of the words in their original context must now pass” but the Court of Appeal in M concluded that “If it cannot, and if the words appear in or are demanded by primary legislation, the task of solution passes to ministers and to Parliament. If the offending words are in secondary legislation, the task is primarily for the courts” [ 84].

16. Deeming provisions cannot on any view be taken to introduce stronger interpretative presumptions than the Human Rights Act. If context cannot be used to read in human rights compliance, it can’t be used to read in a variable approach to a statutory definition. Sections 17 and 18 of the EqA refer to discrimination against “a woman” on the basis of “a pregnancy of hers”. If a s9(1) GRA reading of “woman” is adopted, this must exclude from protection any trans men with GRCs who become pregnant. If one wishes to argue that “context” can be relied on to interpret around this, one would need to infer, following the Court of Appeal in M, that references to “woman” here were embarrassing drafting errors: woman was intended to include males with GRCs and exclude females with GRCs so either ss 17 and 18 should have referred to a “pregnant person” or in this provision, woman can take on its biological meaning without affecting how the term is used elsewhere in the Act.

17. That approach gets the entire enterprise backwards: the established principles of statutory interpretation point towards the task for the court being to look to the statute as a whole to see how one or another interpretation would fit within the legislative scheme, on the presumption that the same meaning should be fixed throughout. The fact that one approach would create absurdities and unworkability in the Act will ordinarily mean that it should be abandoned, not that meaning should be bifurcated such that a defined term means different things at different parts of the Act.

18. There is some narrow scope for the Supreme Court to adopt this interpretation, but if it did, we would then be left with the further question of determining when context would require a biological reading of sex. Several submissions point to a whole host of areas in the EqA where the only plausible interpretation is a biological one. It could be the case that the Supreme Court adopts this view but ultimately concludes that in most areas of tension, from pregnancy, to single-sex services to sexual-orientation, a biological reading will need to be adopted anyway.

In my view, this is where For Women Scotland’s case stands or falls. If the Supreme Court concludes that there is simply no scope for ‘context’ to permit a variable meaning of sex within the same Act, given the definition section provided, then it must find an interpretation that does justice to the legislative scheme before it. If sex has a stable, consistent, meaning throughout the Act, then the Court must ask whether it can conclude that Parliament meant to enact an anti-discrimination law framework which makes no reference to discrimination based on biological sex. I think not.