Sex in the Supreme Court

A Brief Overview

Next week the UK Supreme Court will deliver judgment in For Women Scotland v The Scottish Ministers. The case concerns the meaning of the term “sex” and its cognates “women” and “men” for the purposes of the Equality Act. The grounds for granting leave to appeal to the Supreme Court rested 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. 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.

Following Corbett v Corbett, Bellinger v Bellinger and A v Chief Constable of West Yorkshire Police, sex in law is, by default, biological sex. Everyone is legally classed as their biological sex except where a Gender Recognition Certificate issued under the Gender Recognition Act 2004 changes sex for some purposes.

Being protected under gender reassignment does not change sex in law for any purpose. It protects against denial of employment, goods & services, or housing as compared to someone of the same biological sex who does not have the Gender Reassignment protected characteristic. So trans women are by default legally classed as men and are compared to non-trans men.

For example in Green v Secretary of State for Justice, a male inmate who began to identify as a woman after being convicted of the brutal torture and murder of Rachel Hudson, Green’s wife, claimed gender reassignment discrimination on various grounds. Green was held in a men’s prison and claimed discrimination arising from denial of tights, a wig, prosthetic breasts and vaginas, and difficulty in accessing makeup.

Discrimination claims require a Court or Tribunal to consider how the claimant was or would be treated compared to someone who is similar in all relevant respects except for the protected characteristic in question. If someone claims sexual orientation discrimination because they have been denied a service, it must be established that someone with a different sexual orientation would not have been denied in order to establish that there has been less favourable discrimination on the basis of sexual orientation. So in Lee v Ashers Bakery, the fact that the bakery would have refused service to anyone requesting the printing of a particular message on a cake meant that Mr Lee could not establish that he was discriminated against on the basis of his sexuality: A straight customer would have been denied too so the denial of service wasn’t because of him being homosexual.

Similarly, in Green the court needed to establish that someone in a similar situation to Green but who didn’t have the protected characteristic of gender reassignment (because they were not proposing to undergo any attempt to reassign gender by changing attributes of sex) would be treated differently. This is where Green’s sex becomes relevant. Green argued that the relative comparator must be a woman who does not have the protected characteristic of gender reassignment - a natal female - because Green was a woman. If a natal female would have been granted these items then this is gender reassignment discrimination. The Secretary of State for Justice argued that Green was biologically and legally male and the correct comparator here must be a man without the gender reassignment characteristic such that the Court must ask whether another male prisoner would be denied access to these items and if they would be, this is gender reassignment discrimination. Similarly if other male prisoners who didn’t have the gender reassignment characteristic were given access to recreation and exercise time but Green was denied it, then that would be gender reassignment discrimination. Asking how a hypothetical female prisoner would be treated is irrelevant.

The Court agreed with the Secretary of State, noting that:

He is in a male prison and until there is a Gender Recognition Certificate, he remains male. A woman prisoner cannot conceivably be the comparator as the woman prisoner has (either by birth or election) achieved what the claimant wishes. Male to female transsexuals are not automatically entitled to the same treatment as women – until they become women.

That leaves open the question of how a trans woman with a GRC ought to be treated. The Court here presumes, as have several in the past, that a GRC changes one’s sex for the purposes of the Equality Act. That has not, until now, been directly tested. Part of the reason for this is that most of the areas where the sex of an individual might matter - single-sex services and associations - are covered under exceptions in the Equality Act that would apply regardless of whether a GRC changed one’s sex.

Schedule 3 of the Equality Act allows providers to set up and maintain single-sex services such as rape crisis centres and female-only changing rooms and toilets. The Inner House of Court of Session in For Women Scotland v The Scottish Ministers held that

Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex.

This is the judgment that is being appealed to the Supreme Court, where For Women Scotland is challenging the separate conclusion that those who do have a GRC are classed for the purposes of the Equality Act as their acquired gender and subsequently do have a prima facie right of access to services provided for members of the opposite sex. That point does not undermine the established legal rule that without a GRC one remains their natal sex and has no prima facie right of access to opposite-sex services.

Schedule 3 also allows providers of single-sex services to exclude on the basis of either sex or gender reassignment once exclusion is a proportionate means of achieving a legitimate aim. The protection of the rights of women is a legitimate aim and blanket rules have been determined by the Supreme Court to be proportionate in several cases over the last few decades. Proportionality therefore does not require a case-by-case analysis. As the Supreme Court noted in Reference by Attorney General for Northern Ireland re Abortions Services (Safe Access Zones) Bill:

questions of proportionality, particularly when they concern the compatibility of a rule or policy with Convention rights, are often decided as a matter of general principle, rather than on an evaluation of the circumstances of each individual case. Domestic examples include R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53; [2009] 1 AC 287, the nine-judge decision in R (Nicklinson) v Ministry of State for Justice [2014] UKSC 38; [2015] AC 657, and the seven-judge decisions in R (UNISON) v Lord Chancellor (Equality and Human Rights Commission intervening) [2017] UKSC 51; [2020] AC 869 and R (SC) v Secretary of State for Work and Pensions [2021] UKSC 26; [2022] AC 223.

Being protected under gender reassignment does not entail an entitlement to use single-sex services intended for members of the opposite sex and the requirement for exclusion to be proportionate does not require a case-by-case assessment.

What the Supreme Court will decide on:

It is important to be clear that the Supreme Court will not be directly reconsidering the settled law set out above. That may be discussed in passing but the central questions that were before it, either directly or indirectly, were the following:

• Whether sex in the Equality Act means (i) biological sex or (ii) biological sex unless modified by a GRC.

• Whether biological females are protected as a distinct group under the Equality Act.

• How precisely the Schedule 3 exceptions which allow for single-sex services operate. If sex means sex as modified by a GRC these exceptions become more complicated to rely on and that can affect how useful they are in practice, given concerted campaigns to spread misinformation about the law here.

• Whether single-sex associations defined by reference to biology (eg. Lesbian walking group, informal support network for female victims of male violence) are lawful. If sex doesn't mean biological sex, these are unlawful.

• Whether trans men who become pregnant are protected from pregnancy discrimination. If a GRC modifies sex for the Equality Act they likely lose protection.

• Whether sexual orientation is defined in the Act by reference to biological sex or biological sex unless modified by a GRC.

Related to all of these questions is whether the Equality Act envisages there to be a disparity in status and treatment within the gender reassignment characteristic, such that possession of a GRC makes a significant difference in one’s rights under the Act.

If it does, this will put considerable tension on the secrecy provisions within the Gender Recognition Act which make it a crime to disclose the fact that someone has a GRC or information about their biological sex if one comes across this information in an official capacity. There is a strong argument to make that those running single sex services are acting in an official capacity when they run the service. If the proportionality of exclusion is weighted differently depending on whether one has a GRC, as the Court of Session has suggested, this will require service providers to know - and ask - about GRC status.

It is by no means clear that this was the intention of the drafters of the Equality Act 2010. Professor Alex Sharpe has stated that:

[P]lacing emphasis on section 9(1) of the GRA, which recognises trans women with a GRC as women for ‘all purposes’, fails to acknowledge how recognition is circumscribed by the GRA in significant ways. Thus the scope of legal gender recognition is delimited in relation to … section 9(3) of the GRA which makes clear legal gender recognition is subject to ‘any other enactment or any subordinate legislation’. In other words, and by virtue of this provision, legal recognition under the GRA is subject to subsequent and qualifying legislation. That is, if there is conflict between the GRA and the EA, the EA trumps the GRA to the extent of conflict. … Ultimately, it is a question of statutory interpretation. … trans people, covered by the protected characteristic of ‘gender reassignment’ enjoy a set of benefits and detriments under the EA. There appears to be no good reason to think GRC holders were intended to bear an asymmetrical relationship to this balancing of rights. While trans women GRC-holders are considered women for most legal purposes, it is clear they are not considered women for all legal purposes.

What the Supreme Court will not be deciding

Given the contentious nature of the law in this area, it is unsurprising that some are presenting this as a culture war issue rather than a complex dispute about the meaning of an important anti-discrimination statute. Others are presenting this as an attack on the rights of trans people. It is therefore very important to be clear about what the Court will not be doing. Regardless of how the case is decided, it cannot and will not:

• Remove the protected characteristic of gender reassignment.

• Make it lawful to discriminate on the basis of gender reassignment in the provision of goods & services, employment, or housing.

• Prevent services from offering a trans-inclusive service where proportionate.

• Remove any human rights from trans people.

This is a complicated area of law. It engages important considerations of equality and non-discrimination on both sides. A lot is at stake and analysis should proceed with that in mind.