The UK Supreme Court has held that the definition of sex in the Equality Act 2010 (EA 2010) means biological sex and not acquired gender, and therefore ‘a woman’ does not include a trans woman in legal terms.
The EA 2010 provides protection against discrimination on the basis of various characteristics, including ‘sex’ and ‘gender reassignment’.
In the case of “For Women Scotland v The Scottish Ministers” the Court considered what the law means by ‘sex’ and whether a trans woman with a gender recognition certificate (GRC) qualified as a ‘woman’ under the EA 2010. In a judgment issued today, the Court concluded that they did not.
The Court decided that the legal definition of a woman under EA 2010 is based on biological sex and not GRC-acquired sex, ruling that it would create an incoherent system of protected characteristics if transgender women were included.
The Court emphasised that this interpretation does not deprive trans people of legal protection. The law protects transgender people against discrimination through the protected characteristic of ‘gender reassignment’, and also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender.
This ruling has significant implications for employers and HR professionals. Employers should continue to foster inclusive policies that respect the rights of all employees and seek legal advice when navigating complex equality issues.