For Women Scotland and Pregnant Men

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 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.

This post concerns the implication of this case for the provisions in the Equality Act relating to pregnancy and maternity.

The Equality Act makes provision in s.17 for circumstances when “a person (A) discriminates against a woman if A treats her unfavourably because of a pregnancy of hers.” Sections 13(6), 17 and 18 outlaw discrimination against women based on pregnancy and maternity. There are repeated references to a woman who has become pregnant and no references to a man who has become pregnant. Woman is defined in s.212 as meaning a female of any age.

The central question before the Supreme Court will involve determining the meaning of the phrase “a female of any age” and, in particular, the meaning of the word “female” in this context. If female and woman are interpreted to mean sex as modified by a GRC, then any female-to-male trans person who has a GRC and becomes pregnant will fall outside of the scope of protection because they are not women for the purposes of the Equality Act. If sex takes on its ordinary meaning, anyone who is biologically female will retain protection, regardless of whether or not they have a GRC. The Equality and Human Rights Commission raised this removal of protection in its letter to the Minister for Women and Equalities in April 2023.

It is rightly said that the presumption in this case must be that Parliament had full awareness of the Gender Recognition Act 2004 when it enacted the Equality Act 2010. In this case, the Scottish government have argued that this presumption, coupled with the lack of an express reference to s.9(3) of the Gender Recognition Act, the provision which dissaplies the GRA from future legislation, must imply that Parliament intended for sex within the Equality Act to be modified by a GRC.

In another post I provide a detailed analysis of this argument. For now it suffices to note that both the Outer House and the Inner House of the Court of Session have accepted that express invocation of s.9(3) is not needed in contexts where it can be reasonable inferred from the background context that a reference to sex clearly means biological sex. The example used was the Forensic Medical Services (victims of Sexual Offences) (Scotland) Act 2021;

where references to the sex of the forensic medical examiner can only mean, read fairly, that a victim should have access to an examiner of the same biological sex as themselves.

Here the lack of an explicit reference to biological sex is no impediment to interpreting sex to mean biological sex for this Act. Nor is there a requirement to expressly invoke s.9(3) of the GRA or to mention GRC status. The reason is that, read fairly, these provisions make sense only if sex means biological sex.

Nevertheless, the Scottish government are arguing that s.212 of the Equality Act is not a provision which, read fairly, only makes sense if sex means biological sex. As such, the presumption is that sex must mean certificate or legal sex. But if that is true, then, presuming as we must that Parliament enacted the Equality Act with full knowledge of the Gender Recognition Act, we would need to presume that Parliament knew what it was doing when it confined pregnancy discrimination provisions to women.

This leaves us with two options: either Parliament knew what it was doing and intended pregnancy discrimination to cover all those who are biologically female or Parliament knew what it was doing and intended to strip trans men with GRCs who become pregnant of protection from discrimination relating to pregnancy and maternity.

The presumption must be that Parliament had full knowledge of the precise terms within s.9 of the GRA, including s.9(3) when it enacted the Equality Act. The choice to define the protected characteristic of pregnancy by reference to the pregnancy of a woman must be taken to have been deliberate, with full cognisance of the GRA. If the ‘for all purposes’ provision in s.9(1) is taken to apply to the Equality Act, then this must mean that Parliament intended to provide protection only for pregnancies of those females who do not have GRCs and to exclude people like Freddy McConnell who are biologically female but who possess a GRC stating that they are men.

Conversely, if s.212 is taken to constitute “provision made” for the purposes of s.9(3), then this must mean that Parliament intended to protect all biological females from pregnancy discrimination when it defined pregnancy discrimination with explicit reference to a woman who is pregnant. The choice to use the word woman in this provision cannot be ignored. A court cannot interpret this to mean “a person who is pregnant” because person was not the word chosen: woman was.

This issue was of considerable concern for the Inner House in the oral hearing of FWS 2 and ultimately led to the finding that the terms “sex” and “woman” in the Equality Act take on different meanings at different times, despite their being subject to statutory definition provisions, the ordinary purpose of which is to establish and fix a consistent interpretation for given terms throughout an Act as a whole. The Inner House recognised that s.9(3) of the GRA applies even where it is not expressly invoked but does not think that it is engaged by the definition of woman as meaning a female of any age. Rather, the court presumed that the s.212 definitions mean certificated sex throughout the Equality Act, except where it would be meaningless or unworkable. Lady Dorrian accepts that this would be true for references to “woman” in s.17 because

“Section 212 does not include the words ‘except where the context otherwise requires’ but these are implicit in any statutory definition. In our view this is a situation where the context manifestly ‘otherwise requires’: pregnancy is a matter of fact which hinges entirely on biology.”

So the solution that the Inner House came to was to adopt a ‘default’ interpretation of female, and by extension, woman, as being certificated sex. From here, individual provisions can be assessed to determine whether context otherwise requires a different interpretation based on biological sex.

The Court of Session has therefore adopted an approach which is deliberately neither constant, nor predictable, because it introduces a definition which means one thing except where context indicates it should be the opposite. Such an approach directly contradicts settled law on statutory interpretation that I will address in a later post.

For now, it’s important to note what is at stake here for trans men like Freddy McConnell. The Supreme Court has three options open to it. Either

1. female means biological female so that all trans men who become pregnant are protected, or

2. female means biological female unless modified by a GRC so that trans men who don’t have GRCs are protected from pregnancy discrimination but trans men who do have GRCs are denied protection, or

3. female means by biological female but by default a GRC will modify this, unless context implies that biological sex was intended.

The final possibility may seem to be a workable policy solution to the Supreme Court. In my view, adopting that approach would require the Court to ignore several foundational principles of statutory interpretation. Fundamentally, the job of the Supreme Court is not to fix policy messes. It is not to decide what the best solution to this issue is as a matter of political morality. Rather, it’s role is to interpret the law coherently and correctly.

This case will not be decided by thinking about what the best policy solution ought to be. It will be determined by reference to quite dry principles of statutory interpretation. These principles draw upon ideas of coherence, stability, and workability, but that cannot be the gateway into which advocates push a policy agenda. The Court will resist such attempts and favour assistance from lawyers who slowly and methodically articulate the applicable caselaw on statutory interpretation and apply it to the case before it. Nothing more, nothing less.

[If you’re interested in reading a more detailed piece that addressed some of these issues for an audience of lawyers, please check out my forthcoming paper “On Defining Sex in Law, Law Quarterly Review (2025), available here.]