Sex, Gender Recognition, and Equality Law

A draft paper

I have posted on SSRN a new draft paper on For Women Scotland v Scottish Ministers [2025] UKSC 16.

Abstract: In For Women Scotland v Scottish Ministers, the UK Supreme Court set out a test for determining when a Gender Recognition Certificate will not modify an individual’s legally recognised sex. In so doing, the Court reiterated the default common law position that sex is binary, biological, and immutable as a matter of fact. The Gender Recognition Act will not modify an individual’s legally recognised sex where the terms, context, and purpose of another enactment show that sex was intended to mean biological sex, because of a clear incompatibility between a certificated reading of sex and another enactment or where an enactment’s provisions are rendered incoherent and unworkable by a certificated sex interpretation. Applying this test to the Equality Act 2010, the Court concluded that a biological meaning of sex prevails. In concluding as such, the Court maintained equality of status for those protected under the characteristic of gender reassignment and reiterated that transgender people remain protected from associative or perception-based sex discrimination. The established rule that single-sex services do not operate based on self-identification remains untouched. While doctrinally a modest clarification, the judgment has significant social impact, correcting widespread misinterpretations of sex and gender in law.

The full paper is available here.