UK Supreme Court to decide "what is a woman?"

A detailed look at the arguments

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.

In this post, I want to take a detailed look at the arguments that are in the public domain. So far one of the parties to the case and two of the interveners have made their submissions publicly available. For Women Scotland is appealing the decision of the Inner House of the Court of Session that the term “woman” in the Equality Act included biological males who have a GRC declaring them to be women. Their submissions can be read here. Sex Matters, a human rights charity is intervening, arguing that the Gender Recognition Act (GRA) does not apply to the EqA and that if it did, it would render the EqA absurd and unworkable, thus reinforcing the argument that a proper interpretation of both the GRA and the EqA is that the GRA does not directly apply to the EqA. Scottish Lesbians, The Lesbian Project and LGB Alliance are jointly-intervening to address the impact that this case could have for lesbians. The EHRC and Amnesty International have also intervened but their submissions are not in the public domain.

I will also intersperse my own analysis of the relevant legal issues to flesh out the fault-lines that the Supreme Court may end up considering. This is a long post but hopefully it will provide insight to those interested in the details of the legal issues at stake here.

The Legislative Context

1. This case is ultimately about the interaction between two pieces of legislation. Section 9(1) of the GRA states that if someone obtains a GRC there sex becomes “for all purposes” that which is on the certificate. However, s9(1) states that this “for all purposes” clause is subject to “provision made” in the GRA or in any other primary or secondary legislation. The EqA defined the protected characteristic of sex as whether one is a man or a woman and s.212 of the EqA defines man as “a male of any age” and woman as “a female of any age”. So the question in this case is whether that definition of sex in the EqA is subject to the “for all purposes” clause in the GRA, such that a biological male who has a GRC is deemed to be female and a biological female who has a GRC is deemed to be male. Alternatively, if the definition of sex in the EqA constitutes “provision made” for the purposes of s9(3) GRA, the “for all purposes” provision will not apply and the meaning of sex in the EqA will be tied to the ordinary meaning of male and female.

2. In the lower courts, FWS placed extensive reliance on the argument that the EqA had impliedly repealed the GRA. This does not feature much in these submissions, being replaced with an argument that relies more on s9(3) GRA as the textual hook onto which other arguments attach [43]. The Scottish Ministers and the EHRC have argued that s9(1) GRA establishes a free standing general interpretative principle that creates a presumption that the word “sex”, when used in any enactment (passed before of after the GRA), should be interpreted to mean certificated sex, unless context or express wording indicate otherwise.

3. In the Inner House, Lady Dorrian concluded that this general interpretative presumption sets a default meaning for the term ‘sex’ and for related terms such as ‘woman’, ‘women’, and ‘female’ but that this meaning can vary across the Act where context would require a biological reading of sex. Both FWS and Sex Matters reject this explicitly; Scottish Lesbians reject it implicitly, given that they argue that the meaning of sex in the EqA carries through from the Sex Discrimination Act 1975 and that this was not modified by the GRA either. It can be assumed that the Scottish Ministers will seek to uphold the decision of Lady Dorrian in its entirety as they have not cross-appealed.

4. FWS argue that the change in statutory language from the SDA to the EqA matters for determining whether Parliament intended a variable or consistent meaning of ‘sex’. The SDA stated that woman ‘includes a female of any age’, whereas the EqA states that woman “means a female of any age”. FWS argue that this change is significant because it “clarifies and removes any possible ambiguity” [55]. Parliament chose not to use the more ambiguous statutory formulation of “includes” which could imply an open list of examples and instead chose “means” which is not ambiguous and fixes a statutory definition, confined to what it states woman means, for the whole act.

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.

The Law on Statutory Interpretation

8. The submissions of Sex Matters begin with an overview of the general principles of statutory interpretation. This is provided for the benefit of the Supreme Court and so is more concise than a general audience might prefer. I’ll provide as thorough an overview here as I can.

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. I’ve argued elsewhere that

    “This is an exhaustive definition. It would be counter-intuitive to say the least to conclude from this provision that there are multiple definitions of ‘woman’ throughout the Act rather than one consistent meaning. Where the interpretation of an interpretation section is contested, the ordinary presumption is one of internal consistency: words and provisions are taken to have the same meaning throughout the Act such that courts will strive to find an interpretation that is applicable to the Act as a whole without any individual provision being rendered absurd.”^[1]

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 variable 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.

19. So we have rival approaches to interpretation and to the scope and weight that is to be attached to s9(1) GRA. For the reasons explained above, I do not think a variable approach to the meaning of sex is compelling in this case. How then should a court go about resolving this issue? One way is to look to the relevant purposes of each piece of legislation.

Why Purpose Matters

20. As stated above, the purpose of a statute can be an important factor in interpreting contested provisions (See; Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, at 1032-33). This is particularly salient in a case such as this because the issue to be resolved is the extent and weight of s9(1) GRA, a deeming provision.

21. Deeming provisions state how other legal rules, principles and concepts ought to be interpreted. Here the provision states that for other legal rules, principles and concepts, an individual with a GRC is deemed to be of the acquired gender such that their sex in relation to those rules, principles, and concepts is that recorded on their GRC and not their biological sex.

22. The default legal rule is that deeming provisions are given no wider effect than necessary, having regard to the purpose of the legislation (Western Heritable Investment Co Ltd v Husband (1983) SC (HL) 60, at 71-2, 74, 77). It is therefore important to consider the purpose of the GRA in order to determine the scope of the deeming provision in s9(1). In addition, it is important to consider the purpose of the EqA in order to determine whether the application of s9(1) GRA would frustrate that purpose or render its provisions absurd or unworkable.

23. In addition to this, it is clear that s9(3) GRA does not need to be invoked expressly or for the word “biological” to be used in any provision that engages it. Lady Haldane in the Outer House noted that the GRA will not modify the meaning of legislation “where it is clear that ‘sex’ means biological sex”. The example she 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”. That Act did not expressly invoke s9(3) GRA, nor did it mention the term “biological sex”. Rather, the Act, interpreted with due attention paid to its purpose and the absurdity that would arise in s9(1) was engaged, would only fairly have meant biological sex.

24. It is therefore clear that references to ‘sex’ without anything else, can constitute “provision made” for the purpose of s9(3). To determine whether a given reference to sex engages s9(3) GRA or is instead modified by s9(1) GRA, a court must therefore consider firstly the reach or scope of s9(1) by reference to the purposes of the GRA and secondly whether s9(3) is engaged by examining whether there has been “provision made”. Determining that second question will require a court to consider the purpose of the legislation that makes reference to sex, not the purpose of the GRA. It can be assumed that, given the general limitation on the interpretation of deeming provisions and the specific statutory limitation placed by s9(3) GRA, it simply cannot be the intention of the GRA to modify the meaning of sex for the purpose of any enactment where purpose or context would imply that sex can only fairly mean biological sex.

25. There are therefore two ways in which s9(1) GRA might not be engaged: either the ordinary construction of deeming provisions implies that s9(1) GRA does not apply to s212 EqA or, even if on the ordinary construction of deeming provisions s9(1)GRA does apply to s212 EqA, the additional provision in s9(3) GRA is engaged by s212 EqA, thereby disapplying s9(1) GRA.

26. The position of both FWS and Sex Matters is therefore:

    1. The ordinary construction of the words ‘male’ and ‘female’ in the statutory definitions of ‘man’ and ‘woman’ in s212 EqA reflect both the plain meaning of the words and the default position in common law, tied to biological sex (Corbett v Corbett [1970] 2 All ER 33; Bellinger v Bellinger [2003] UKHL 21; A v Chief Constable of West Yorkshire Police [2004] UKHL 21; R (Elan-Cane) v Home Secretary [2021] UKHL 56, at [52]-[53]; R (McConnell) v Registrar General for England and Wales [2020] EWCA Civ 559, at [44]-[45]).

    2. Therefore, on an ordinary construction, the protected characteristic of sex has one consistent interpretation throughout the EqA, tied to biological sex.

    3. This ordinary construction is not displaced by s9(1) GRA because s9(1) GRA must not be given wider effect than necessary, having regard to the purpose of the Act, and an interpretation of the protected characteristic of sex in the EqA as modified by s9(1) GRA

       1. is not necessary to achieve the purpose of the GRA, and;

       2. would frustrate the purpose of the EqA.

    4. Even if, on an ordinary construction of s9(1) GRA, the deeming provision would displace the ordinary meaning of s212 EqA, the provision in s9(3) GRA serves to further limit the scope of s9(1) GRA, in circumstances where there has been “provision made” in the GRA or in any other enactment or any subordinate legislation.

    5. Therefore, even if the purpose of the GRA, properly understood, would imply that s9(1) GRA should apply to s212 EqA, if s9(3) GRA is engaged, s9(1) GRA is disapplied anyway.

    6. Additionally, s212 EqA constitutes “provision made” for the purposes of s9(3) GRA because it provides an express statutory definition that can only refer to biological sex on an ordinary construction, having regard to the purpose, coherence, stability, and workability of the EqA. This is supported by the choice made by Parliament, in full knowledge of the existence of the GRA to confine certain protections to ‘women’ only and to narrow the definition provided in the Sex Discrimination Act 1975 from ‘woman’ includes a female of any age to ‘woman’ means a female of any age. On any ordinary construction of s212, bearing in mind the purpose of the EqA, these statutory definitions constitute ‘provision made’ for the purposes of s9(3) GRA.

27. The two key questions to be decided in this case are therefore first, whether s9(1) GRA, on an ordinary construction applies to the EqA and second, even if it does, has it nevertheless been dissapplied by virtue of s9(3) GRA. As Lady Dorrian, speaking in the Inner House on appeal stressed:

    “whether section 9(1) contains a principle of general application, or whether the effect of section 9(3) is to limit its application… is a question fundamental to the resolution of this [case].”

28. To answer these questions, one must examine the purposes of both the GRA and the Equality Act. If the purpose of the GRA is to affect anti-discrimination law, then s9(1) will, all else being equal, apply to anti-discrimination law. But the rule in Western Heritable Investment Co Ltd v Husband means that s9(1) will be interpreted only so far as is necessary to achieve the purpose of the GRA (See also; Fowler v Revenue and Customs Commissioners [2020] 1 WLR 2227, SC, §27 per Lord Briggs; Moulsdale v HMRC [2023] 1 WLR 1264, SC, §3 per Lady Rose.) Therefore, if the purpose of the GRA does not include altering sex for the purposes of anti-discrimination law, then that is the end of the story; s9(1) GRA does not apply to anti-discrimination law. If, however, the purpose of the GRA is taken to apply to anti-discrimination law, then we must additionally look to the purpose of the Equality Act to see if s9(3) is engaged. If the Equality Act interpreted in light of its purposes and the operation of the Act as a whole cannot support a reading of sex with is tied to s9(1) GRA, then s9(3) GRA will dissaply s9(1). That second issue only arises if the purpose of the GRA is taken to include altering someone’s sex in the context of anti-discrimination law.

29. Taking all of that together we can say that the Scottish Government must establish first that the GRA was intended to apply to anti-discrimination law. If they do that, then analysis can proceed to examine whether s9(3) is nevertheless engaged. But establishing that the purpose of the GRA was to apply to anti-discrimination law is simply the first hurdle that must be overcome. The second hurdle arises because of the presence of s9(3) GRA and need to examine whether anything in the Equality Act constitutes ‘provision made’ for the purposes of that section. The GRA may have been intended to apply to the Sex Discrimination Act 1975 and may still not apply to the Equality Act if a s9(1) GRA reading of the Equality Act would render the Act absurd or unworkable.

The Purpose of the GRA

30. FWS argue that the purpose of the GRA “essentially concerns the vertical relationship between the individual and the State (how the State records and retains and certifies and presents personal date about an individual’s sex)” [18]. In contrast, the EqA is presented as much broader, not confined to a vertical relationship but also regulating the relationship between private individuals and private entities. Importantly, FWS argue that “the GRA 2004 did not and does not, in general, impose any particular obligations on private citizens” [21]. With this in mind, FWS argue that it cannot have been the purpose of the GRA to trump or replace biological sex as a protected category within anti-discrimination law and that this can never have been what Parliament intended when it passed the EqA[23].

31. All submissions recognise that the GRA was introduced in order for Parliament to give domestic effect to and set the terms of the implementation of the decision of the European Court of Human Rights in Goodwin v United Kingdom (2002) 35 EHRR. Goodwin established an obligation to provide for some domestic scheme of gender recognition for post-operative transsexuals. How Parliament was to do that and the scope of any legal recognition was for it to decide. When Parliament passed the GRA, it carved out several areas where legal sex change would not be operative, including in sport, parenthood, inheritance, and sex-specific crimes. It also provided for a generally applicable exception in s9(3).

32. Therefore, taking the Act as a whole, the purpose of the GRA cannot have been to effect a legal sex change for all purposes; it was to effect a legal sex change for some purposes. The central question for this appeal is whether Parliament intended for anti-discrimination law to be one of the areas.

33. In the caselaw leading up to the GRA, in the absence of a legislative framework, the judiciary determined the scope of legal sex change. There is some complicated interplay between European Community law and ECHR jurisprudence at play here. It is important at this stage not to confuse the two. The GRA was enacted to bring the UK into conformity with ECHR obligations, not European Community obligations, which had already been met by the enactment of the Sex Discrimination (Gender Reassignment) Regulations 1999.

34. Prior to the enactment of the GRA, the House of Lords decided A v Chief Constable of West Yorkshire Police. This case concerned the scope of European Community law, not Human Rights law. Nevertheless, the decision of the House of Lords was acutely cognisant of the fact that the GRA was working its way through Parliament at the time. In A, the House of Lords adopted a high threshold for very wide reaching consequences. The threshold was to confine gender recognition to those post-operative transsexuals who were “visually and for all practicable purposes indistinguishable” from members of the opposite biological sex. Once that threshold was met, Lord Bingham concluded that an individuals sex had changed for anti-discrimination law, including law in relation to intimate searches:

    “In my opinion, effect can be given to the clear thrust of Community law only by reading "the same sex" in section 54(9) of the 1984 Act, and "woman", "man" and "men" in sections 1, 2, 6 and 7 of the 1975 [Sex Discrimination] Act, as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender. No one of that gender searched by such a person could reasonably object to the search.”

35. This was an interpretation of European Community law obligations arising from the Equal Treatment Directive and the case of P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795, not Goodwin. The GRA was not introduced to give effect to any Community obligations in relation to anti-discrimination law, but to the human right to state recognition arising from ECHR jurisprudence. Nevertheless, there is a connection between the GRA and the reassigning in A. The reasoning in A only applied in the absence of Parliamentary legislation setting the terms of when state recognition of a changed sex could be effected and the extent to which that recognition affected the operation of anti-discrimination law. In A, the House of Lords adopted a framework involving a high threshold for transsexuals to meet (post-operative indistinguishability) and wide-reaching consequences in the form of a modification to the meaning of the sex-based terms in the Sex Discrimination Act 1975. When Parliament enacted the GRA it adopted a different framework entirely, one which departed from the reasoning in A, in terms of both the conditions which must be met and the legal effect of such a change.

36. The GRA made it significantly easier to change one’s legal sex. Rather than a requirement to undergo sex-reassignment surgery and any additional medical intervention to meet the standard of post-operative indistinguishability identified in A, Parliament chose to instead require a diagnosis of gender dysphoria, evidence of having lived in the acquired gender for two years, and a declaration that one intends to continue to live in the acquired gender until death. Having made it significantly easier to change legal sex, Parliament also placed clear limitations on what the legal effect of doing so would be. It expressly carved out areas where a GRC would have no effect and provided for an open-ended exception in the form of s9(3). It is by no means clear from this that Parliament intended the GRA to modify the operation of discrimination law either in terms of sex or in terms of gender reassignment.

37. That is the first question that must be answered in this context: was the GRA enacted for the purpose of changing the operation of anti-discrimination law? There is one reason to think that it was and there are several reasons to think that it was not. The strongest argument in favour of this view is the explanatory notes to the GRA. They state at [27] that a male-to-female transsexual who obtained a GRC in the female sex “would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975; and she would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so be able to contract a valid marriage with a man”.

38. It is unequivocally the case that one of the purposes of the GRA was to ensure that those with GRCs in the female sex could enter into marriages with men. That was necessary to meet one of the obligations arising from Goodwin. But it is not clear if the same is true for the Sex Discrimination Act 1975 and even less clear if this applies to the Equality Act 2010.

39. Sex Matters note in their submissions that, while discrimination in employment formed a part of the factual background in Goodwin, it did not form part of the Human Rights analysis conducted by the ECtHR because UK already provided anti-discrimination protection on the basis of gender reassignment as distinct from sex discrimination. The Scottish Lesbians similarly note that the UK could have given domestic effect to the Equal Treatment Directive obligation to provide for gender reassignment discrimination protections by leaving it to the courts to interpret sex discrimination as including gender reassignment discrimination or by amending the SDA to do so itself. Instead, regulations were introduces to provide for distinct protections for gender reassignment, leaving sex discrimination undisturbed. As Sex Matters notes, nothing in the judgment in Goodwin indicates that the Court considered this protection to be inadequate and in fact the Court explicitly references the fact that the discrimination Goodwin complained of was already unlawful in the UK.

40. With this in mind, Sex Matters argues that the mischief which the GRA was intended to address, as identified in Goodwin and Bellinger, had nothing to do with anti-discrimination law; it was to do with legal recognition for gender reassignment in areas that related to the relationship between the state and the individual; marriage, pensions, retirement, and social security. It can be fairly said that the GRA intended to modify the operation of the law in those areas and, to the extent that the EqA makes reference to the law in those areas, a duty-bearer may need to be simultaneously cognisant of both the law relating to (for example) pensions and the law relating to discrimination.

41. FWS, Sex Matters and the Scottish Lesbians all argue that the purpose of the GRA was to meet the obligations on the UK following Goodwin v United Kingdom. Nothing in Goodwin implies that it imposed any obligations in relation to anti-discrimination law and in fact the Court explicitly referenced the 1999 regulations to note that they met the obligations arising from the Equal Treatment Directive. As far as the GRA is concerned, discrimination on the basis of gender reassignment fell to be regulated in other areas of law where issues relating to conflicts of rights or practical implementation could be worked out in detail. According to FWS and these interveners, discrimination law was not the focus in Goodwin, it did not form part of the obligations on the UK which arose as a result of Goodwin, and it did not form part of the purposes for which the GRA was enacted.

42. If this is right, no further analysis is needed. The deeming provision in s9(1) GRA only extends so far as is necessary to achieve the purposes of the GRA; if the purpose GRA was to implement the ruling in Goodwin and regulate the vertical relationship between the individual and the state, then modifying the meaning of sex in anti-discrimination law is simply not necessary to achieve those purposes. We only need to proceed to examine the purpose of the EqA if s9(1) GRA, in the absence of s9(3) GRA would apply to the EqA. Only then, given the existence of s9(3) GRA, would we need to determine if anything in the EqA constitutes “provision made” such that it would engage s9(3) GRA and disapply s9(1) GRA anyway. That question only needs to be addressed where s9(1) GRA is engaged, if it is not, a s9(3) GRA analysis is unnecessary.

The Purpose of the Equality Act

43. FWS argue that, in contrast to the primarily - if not exclusively - vertical effect of the GRA, the EqA makes extensive provision for both vertical and horizontal effect; regulating the relationship between private individuals. It is a consolidation and harmonisation of equality law, including of EU law obligations.

44. Sex Matters argue that there are three key purposes of the EqA: to prevent discrimination and harassment on the basis of certain protected characteristics by a range of public and private duty bearers; to address group based disadvantaged suffered by those who share certain protected characteristics; and to set out a scheme of exceptions to the general rule of non-discrimination to accommodate ordinary everyday instances where differential treatment is justified or necessary to address conflicting rights or interests . Central to the submissions of Sex Matters, FWS and Scottish Lesbians are three further claims:

    1. One purpose of the EqA is to make provision to prevent discrimination against, to advance the group based interests of, and to accommodate exceptions which protect the rights and interests of individuals and groups defined with reference to biological sex: females, males, same-sex oriented people and opposite-sex oriented people.

    2. That it was not the purpose of the GRA to override these purposes or to strip protection from, in particular females and LGB people, by replacing references to biological sex in the EqA with references to certificated sex.

45. In addition to this, all submissions accept that another purpose of the EqA is to provide protection from discrimination based on gender reassignment, to protect the group based interests of those who share that characteristic, and to carve out exceptions relating to gender reassignment. The question here is whether, in addition to gender reassignment protection, the purpose of either the GRA or the EqA was to override the category of biological sex within anti-discrimination law and to replace it with certificated sex.

The choice of two protected characteristics

46. An important starting point adopted by FWS, Sex Matters and Scottish Lesbians is that Parliament could have chosen, in the aftermath of developments in EU law, to redefine the protected characteristic of sex to include certificated sex as an override of biological sex. It did not do so. Scottish Lesbians argue that the definition of sex in the Sex Discrimination Act 1975 carried forward unchanged into the EqA without any modification from the GRA, partially because gender reassignment was dealt with separately in the 1999 regulations and then in the introduction of a separate protected characteristic in the EqA. FWS go further than this; they argue that the definition from 1975 did not carry forward unchanged. Rather, Parliament chose to narrow the definition, replacing references to woman including a female of any age with woman meaning a female of any age. Not only did Parliament chose not to include certificated sex within the protected characteristic of sex, it chose to narrow and clarify the ambiguous wording in the SDA to, on FWSs argument, expressly exclude certificated sex. Either way, the fact that gender reassignment is a separate characteristic matters.

47. Effectively, this argument is that Parliament chose not to conflate the protected characteristic of sex with gender identity, gender reassignment, or render recognition. The choice to retain distinct and separate protection for both protected characteristics allows the legislative framework to pay appropriate attention to the distinct needs of each group. It allows the law to carve out exceptions where necessary to balance conflicting interests between each group. That can be inferred to be a purpose of the EqA read as a whole.

48. If sex in the EqA takes on its ordinary meaning, the EqA will be coherent and workable. The argument of FWS, Sex Matters and Scottish Lesbians is that if a s9(3) GRA reading is adopted, it will render the EqA absurd and unworkable, frustrating the purposes of the EqA in so doing.

49. In what follows, I’ll examine how different parts of the EqA will be affected depending on whether an ordinary meaning or a s9(1) GRA meaning is adopted. Bear in mind that the ordinary meaning will cover both biological sex and gender reassignment, with any conflict between the interests of women and the interests of transgender people being addressed as a conflict between the characteristics of sex and gender reassignment. If a s9(1) GRA meaning is adopted, that mechanism for balancing conflicting interests will be unavailable as the GRA will cut across and alter the operation of provisions dealing with both sex and gender reassignment.

50. Sex matters argues that:

    to apply a s9(1) reading of ‘sex’ in the EqA10 would cut across both of the

    relevant protected characteristics, with the effect that references to a ‘woman’, and to ‘women’ as a group sharing the same protected characteristic of sex, would include: (i) biological females who do not have the protected characteristic of gender reassignment; (ii) some biological females who do have the protected characteristic of gender reassignment (i.e. those who identify as male but do not have a GRC); and (iii) some biological males who have the protected characteristic of gender reassignment (i.e. those who identify as female and also have a GRC). But such references would exclude, as well as biological men who do not have the protected characteristic of gender reassignment: (i) some biological females who have the protected characteristic of gender reassignment (i.e. those who identify as male and also have a GRC); and (ii) some biological men who do have the protected characteristic of gender reassignment (i.e. those who identify as women but do not have a GRC).

    This is not a natural category. To attempt to fit this into the plethora of rules within the EqA that consider treatment based on a protected characteristic, the effect on those who share a protected characteristic, or the reasonableness of someone objection to being intimately touched by someone who does not share this characteristic is to render those rules unworkable as they pertain to sex. This is particularly relevant when considering parts of the EqA that require consideration of how a given policy or form of treatment affect those who share the protected characteristic of sex - indirect discrimination and the Public Sector Equality Duty. These provision either require consideration of the effect on those who share the same biological sex or the same certificated sex, but they cannot mean both.

51. Adopting a s9(1) GRA meaning would entail, according to Sex Matters, concluding:

    1. that Parliament did not intend for anti-discrimination law to be concerned with biological sex or for group-based provisions such as the Public Sector Equality Duty.

    2. that Parliament did intend the law on sex discrimination to reference these artificial categories which can only be ascertained by knowledge of who possesses a certificate that has strong - criminal - limitations on its disclosure.

    3. that Parliament intended gender reassignment protections to differ depending on whether or not someone possesses a GRC.

52. An important factor in determining the intended scope of the GRA is to consider the confidentiality provisions in s22 GRA. It is a crime to disclose information relating to the fact that an individual has a GRC or the fact of their biological sex if one comes across it in an official capacity. If the GRA was intended to affect the operation of anti-discrimination law such that possession of a GRC would change the operative legal rules and obligations in contexts such as the provision of services, it seems counterintuitive for there to be a criminal offence attached to disclosing this information. The confidentiality provisions in s22 GRA support the idea that a GRC is intended to affect ones legal status vis-a-vis the State for areas of law where the individual interacts with the state. If a GRC was intended to alter one’s rights within anti-discrimination law, it is unclear why there would be such a high premium placed within the legislative scheme on keeping the fact of this change in legal rights secret

Direct Discrimination and “Exact Correspondence”

53. One important point emphasised by Sex Matters is that the law relating to direct discrimination would be significantly altered if a s9(1) GRA meaning of sex was adopted. There is a doctrine within the jurisprudence on direct discrimination which states that where those who are adversely affected by a policy or form of treatment all and exclusively share the same protected characteristic, a facially neutral rule which would otherwise fall to be considered under indirect discrimination provisions is in fact an example of direct discrimination (See; James v Eastleigh Borough Council [1990] ICR 554). The classic example of this doctrine is instantiated in the US Supreme Court Case of Bray v Alexandria Women’s Health Clinic 506 US 263 (1993); “A tax on wearing yarmulkes is a tax on Jews”. US anti-discrimination law focuses on the motive or intention of the discriminator. UK anti-dsicrimaintion law does not. It instead relies on the “because of” test, predominately tied to a comparator analysis which asked whether those who do not share the protected characteristic who are similarly situated would have been treated more favourably.

54. The doctrine of indissociability, which looks to whether those adversely affected all share the same characteristic requires “exact correspondence” between the protected characteristic and the criterion in question (Preddy v Bull [2013] 1 WLR 3741, at [21]). If an ordinary meaning of sex is adopted, this will mean that policies which are neutral as between sex but nevertheless adversely affect females and only females, because they relate to biological sex characteristics, will count as direct sex discrimination. This means that there is no scope for justification; the policies are unlawful.

55. If instead a s9(1) GRA interpretation is adopted, these cases will fall to be determined under indirect discrimination rules which allow for the possibility of justification, thus requiring claimants to meet an additional hurdle that would otherwise not be required.

56. Sex Matters argues that it was not the purpose of the GRA to alter the operation of these rules to remove this protection from biological females. If that is true, then it indicates that the scope of the deeming provision in s9(1) GRA cannot extend to modify the meaning of the protected characteristic of sex.

Pregnancy discrimination

57. 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.

58. 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.

59. The presumption must be that Parliament had full knowledge of the precise terms within s9 GRA, including s9(3) GRA when it enacted the EqA. 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 s9(1) GRA 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.

60. Conversely, if s212 EqA is taken to constitute “provision made” for the purposes of s9(3) GRA, 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.

    Sexual Orientation

61. The protected characteristic of sexual orientation is defined in s.12 of the Equality Act 2010 as

    a person’s sexual orientation towards –

    (a) persons of the same sex,

    (b) persons of the opposite sex, or

    (c) persons of either sex

    If sex in this context is taken to be modified by GRC possession then there will be two important implications. The first is that biological males or females who are oriented towards members of the same natal biological sex will not be covered under this provision. To be oriented towards members of the same sex one would instead need to be a member of one legal sex who is sexually oriented towards members of the same legal sex, as determined by possession state documentation.

62. To have a sexual orientation towards persons of the same sex, on this interpretation, one would need to be, for example, legally female, either because one is biologically female without a GRC or because one is biologically male with a GRC, and attracted only to other legal females. To be covered under this category, one’s sexual orientation would need to depend upon whether someone possessed the right documentation.

63. Orientation does not imply that one is attracted to every member of a group but it does imply that one is only attracted to members of a particular group. It is hard to imagine anyone who is only attracted to those of one biological sex who don’t have a formal document, coupled with those of the opposite biological sex who do have this document but who is attracted to nobody in the reverse group.

64. This is not a natural category. It does not track biology, physical appearance, or even gender identity. If this is the correct interpretation of sexual orientation, the categories of same-sex oriented and opposite-sex oriented under s.12(a) and (b) of the Equality Act will cover a null set. There is nobody whose sexual orientation depends upon possession or lack of a particular government certificate. People have all sorts of sexual interests but sexual orientation isn’t about attraction in itself, its about the group of persons one is exclusively sexually attracted to: if you are same sex oriented, you are only attracted to memebers of the same sex.

    Nobody is exclusively attracted to members of the same legal sex. Even those who adopt a more fluid understanding of their sexuality do not place any significance, in terms of exclusive attraction, on what government document an individual possess. Nowhere will a GRC make a difference for whether a given individual is sexually oriented towards another person. If same-sex sexual orientation is taken to track legal categories rather than natural categories, those whose sexual orientation tracks natural categories (natal females who are sexually oriented towards natal females, for example) will not be covered under s12(a).

65. The direct implication of this approach to interpreting the word ‘woman’ in the Equality Act will be that the category of “same-sex” for the purposes of s.12(a) will not include anyone whose sexual orientation is based on natal biological sex. If this is upheld in the Supreme Court, everyone whose sexual orientation differentiates on the basis of biological sex will lose protection. Nobody whose sexual orientation is tied to biological sex will be able to bring a claim for sexual orientation discrimination under the Equality Act because they will not have an orientation covered under s12, nor could they reasonably be said to be perceived to have a sexual orientation that depends on legal documents, nor would they be associated with such an orientation. If “same-sex” in s12 is taken to track government documentation, every sexual-orientation discrimination case that has been brought under the Equality Act on the basis of orientation towards biological sex categories has been incorrectly decided.

66. The second implication of this approach to interpretation is that trans people who obtain a GRC will, as a consequence, usually change sexual orientation. They will have changed sex for the purposes of the Equality Act and therefore who counts as a person of the same sex will also have changed. If one’s sexual orientation remains stable - assuming that it is even covered under this new certificate based understanding - the object of one’s orientation will have remained the same, but one’s position in relation to them (same-sex or opposite-sex) will have changed.

67. Take the case of a previously heterosexual male, defined in the Act as a man under s11 and sexually oriented to persons of the opposite sex (women) under s12(b) (assuming that the introduction of legal certificated doesn’t break the operation of this section). If this person obtains a full GRC and sexual orientation is modified by s9(1) GRA, that person will then be classed as a woman under s.11 and consequently move to being sexually oriented to persons of the same sex under s12(a).

68. In a letter from 03 April of this year, following a request from the Minister for Women and Equalities, the Equality and Human Rights Commission set out some of the benefits of clarifying the definition of sex in the Equality Act. As a part of that letter, the Commission addressed this precise issue, noting that:

    If sex means legal sex, then sexual orientation changes on acquiring a GRC: some trans women with a GRC become legally lesbian, and some trans men with a GRC become gay men. As things stand, a lesbian support group (for instance) may have to admit a trans woman with a GRC attracted to women without a GRC or to trans women who had obtained a GRC. On the biological definition it could restrict membership to biological women.

69. It is the submission of Scottish Lesbians that this simply cannot have been the intention of Parliament when it enacted the GRA and the EqA. The purpose of these Acts cannot plausibly be said to include stripping these rights and entitlements from gay men and lesbians. That being the case, s9(1) GRA must be given effect only so far as it is necessary to do so to achieve the purposes of the GRA. Since this impact on the rights of gay men and lesbians is not one of the purposes of the GRA, it cannot be seen as collateral damage in the implementation of the GRA.

Single-Sex Services

70. Section 29 EqA sets out the law relating to the provision of services “to the public or a section of the public”. This section therefore does not apply to the provision of single-sex or separate-sex toilets to changing rooms in the workplace, where the workplace does not also provide these services to the public or a section of the public. For example, the changing rooms for nurses, police officers, or other professionals that are not available to the general public:

71. The Equality Act makes provision for permissible direct sex and gender reassignment discrimination in relation to services covered under s29, Schedule 3, paragraph 27:

72. Paragraph 28 sets out the exception which permits gender reassignment discrimination in the provision of services to the public:

73. There are two points worth stressing here. The first is that these provision will change in operation depending on what the Supreme Court says next month:

    If the PC of sex means biological sex:

    1. s.29 will apply to services offered to the public or a section of the public that differentiate on the basis of biological sex, setting the default to equal treatment. 

    2. Schedule 3, para 27 will set out conditions where single-sex services can be provided to members of the same biological sex. 

    3. Those conditions will make sense, because it is straightforwardly true that there will be some services where members of one biological sex would reasonably object to the presence of a member of the opposite biological sex or there there is intimate touching and someone would reasonably object if the person doing that touching was of the opposite biological sex. 

    4. These services having met the establihsment condition in para 27, sex discrimination and gender reassignment discrimination may be lawful in the operation and maintenance of these provisions. 

    5. Sex discrimination in the context of a female only service would cover exclusion of all biological males because for the purposes of the Act, sex is defined with reference to biology, not certificates. 

    6. The requirement that exclusion be objectively justified as a proportionate means of achieving a legitimate aim will be fairly easy to meet where establishment conditions relate to biological sex and exclusion is also tied to biological sex - for example where there is intimate touching or where person’s are undressed. 

    7. Gender reassignment discrimination in the context of a female only service would cover exclusion of those biological females who are proposing to undergo, are undergoing, or have undergone a process or part of a process of reassigning sex by changing physiological or other attributes of sex. In the context of a female only service, this could arise where a trans man has taken testosterone and therefore has a masculinised appearance. If that trans man was then excluded from a female-only service this would amount to either sex discrimination by perception or direct gender reassignment discrimination, both of which are covered by the schedule 3 exceptions.

74. If the PC of sex means certificated sex:

    1. s.29 will apply to services offered to the public or a section of the public that differentiate on the basis of certificated/legal sex, setting the default to equal treatment. 

    2. Schedule 3, para 27 will set out conditions where single-sex services can be provided to members of the same certificated/legal sex. 

    3. Most of those conditions will not make sense, because it difficult to imagine that there will be some services where members of one legal sex would reasonably object to the presence of a member of the opposite legal sex or there there is intimate touching and someone would reasonably object if the person doing that touching was of the opposite legal sex. These conditions make sense where biology is making the difference, where reasonable objection is based on bodies. It is simply not reasonable for someone to object to intimate touching from one person but not from another and the only difference between them is one has a particular government document. 

    4. This means that most services which would have met the establishment conditions in para 27 if sex meant biological sex, won’t meet the establishment conditions. On one reading, that will mean that it is unlawful to operate female only services at all, because even if female means legal/certificated female, the conditions set out in para 27(6)-(7) could not possibly apply. Again, nobody bases reasonable objection to intimate touching based on what legal sex someone is. The only way to make these provisions work is if a court concludes that a woman would reasonably object to being intimately touched by a legal man but could not reasonably object if that same person, identical in all other respects, possessed a GRC.

75. FWS and Sex Matters both argue that it cannot have been the intention of Parliament in exacting the EqA to set up the Schedule 3 exceptions in this way. A s9(1) reading of the EqA would directly frustrate the real purpose of the EqA which was to provide these exceptions on the basis of biological sex.

Relevancy of Human Rights

76. The submissions from FWS begin with an interesting move: rejecting the relevance of human rights standards for this case [4]. Several of the intervenors, on both sides of this issue, present arguments grounded in the impact that this case could have on the human rights of women, gay people, and trans people respectively. In rejecting the relevance of human rights standards here, FWS argue that the question before the court is one of statutory construction, abstracted from any determined facts which would form the basis of a human rights assessment. I can see why this argument has been made; a full assessment of competing human rights claims could get the Supreme Court bogged down in hypothetical arguments that distract from the fundamental issue of statutory construction in this case.

77. However, the court is under an obligation under s3 of the Human Rights Act to, so far as possible, interpret legislation to be compatible with Convention rights. While it is true that the s.6 obligation on public authorities (including courts) not to violate Convention rights is not directly engaged here, because the case does not concern a claimant arguing that their rights have been infringed, there is nothing in s3 HRA that confines the interpretative obligation to only those cases where there has been an interference with rights alleged by an identified claimant. In my view, if the court is presented with several plausible interpretations of the EqA in this case and it forms the view that some of these would be incompatible with Convention rights and others would not be, it is under a clear statutory obligation to favour the interpretation which is compatible with human rights. The human rights arguments are relevant; the question before the court is what the proper interpretation of the EqA is and that cannot be answered in abstraction from the interpretative obligations placed on the court by the Human Rights Act.

78. Nevertheless, I do think that the most appropriate approach here is to focus first on identifying the plausible approaches to interpretation available to the Court. The human rights obligation only arises where it is actually possible to interpret legislation compatibly with human rights and no party here has sought a s4 HRA declaration of incompatibility, so that does not fall to be determined. This case is rightly primarily concerned with ordinary principles of statutory interpretation and only secondarily concerned with human rights.

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^[1] Michael Foran, Defining Sex in Law, (2025) LQR, (forthcoming), available <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4740870, at p 15.