Sex in the Supreme Court

Culture war or genuine legal issue?

Sex is going to the Supreme Court. That should be enough to put to bed the contention that clarifying the meaning of “sex” in the Equality Act 2010 is unnecessary or a mere culture war move. Non-issues don’t end up in the Supreme Court. They certainly don’t when the grounds for granting leave to appeal to the Supreme Court rest on the fact that

the issue of the correct interpretation of, and interplay between, the Gender Recognition Act 2004 and the Equality Act 2010, in particular in relation to the use of the term “woman” and as to the consequence of the grant of a GRC under the 2004 Act, raise issues which involve arguable points of law of general public importance which ought to be considered by the UKSC at this time.

This is an issue of genuine legal uncertainty that is clearly of huge public importance. Describing it as a culture war is demeaning of our legal process and belittling of women and trans people for whom the correct interpretation of the law in this area is vital.

In recent years there has been significant uncertainty over the interaction between the Gender Recognition Act and the Equality Act. Some things are settled law, others are uncertain.

The settled law:

The Equality Act protects both sex and gender reassignment. Sex refers to whether you are a man or a woman. A man is defined as a male of any age and a woman is defined as a female of any age. Gender reassignment refers to those who are proposing to undergo, are undergoing, or have undergone a process or part of a process for the purpose of reassigning sex by changing physiological or other attributes of sex. Those protected under gender reassignment are defined in the Act as transsexuals.