Will 'The Supremes' Protect Women's Rights
Sex Matters sets out the background to the landmark case involving For Women Scotland (FWS) and Scottish Ministers which is being adjudicated tomorrow in the UK Supreme Court.
https://sex-matters.org/posts/updates/will-the-supreme-court-protect-womens-rights/
Will the Supreme Court protect women’s rights?
On Wednesday 16th April the UK Supreme Court will deliver judgment in For Women Scotland v The Scottish Ministers (FWS2). Sex Matters intervened in this case in support of FWS. We do not know what the outcome is. This post sets out the possibilities.
We have developed a scale from 1 to 10 to express how clearly and robustly the judgment as a whole protects sex-based rights.
The question before the Supreme Court was whether the Scottish Government’s guidance on the meaning of the word “woman” in relation to the Public Boards (Scotland) Act 2018 corresponds with the definition in the Equality Act 2010. There are two possible outcomes: either it does and the Scottish Government wins; or it doesn’t and For Women Scotland wins.
Underlying this is the question of the correct legal interpretation of the interaction between the Gender Recognition Act 2004 and the protected characteristic of sex in the Equality Act 2010.
There are three possibilities:
- Sex in the Equality Act always takes its ordinary meaning (sometimes termed biological sex or natal sex).
- Sex in the Equality Act always relates to certificates (that is, birth certificates or gender-recognition certificates).
- The fudge: there is a “default interpretation” that gives way where it obviously doesn’t work (this fudge was proposed by the Court of Session).
The Supreme Court will adopt one of these three approaches and explain the legal reasoning by which it got there (the ratio). The judgment is likely also to include comments on matters that do not require a decision. Such remarks (called obiter) are not legally binding but can be influential.
What will it mean in practice?
The Equality Act is much more than definitions. It is important to remember that even an outcome that finds that the Gender Recognition Act changes the definition of sex DOES NOT MEAN men with GRCs will be able to demand access to women’s single-sex services.
There are exceptions in the Act that will continue to allow single-sex services to operate with a defence against both sex and gender-reassignment discrimination. And public bodies, employers, service providers and other duty-bearers will still need to ensure that they comply with other legislation (including concerning safeguarding and duty of care), and don’t breach other people’s human rights.
However such an outcome would make it legally more complicated for duty-bearers to operate truly single-sex facilities.
Not just single-sex services
More broadly, protecting women’s rights requires a clear understanding of which people are women. If For Women Scotland loses it will mean that the Equality Act 2010 will have lost this understanding.
This has implications for many provisions in the Act where sex matters.
In 2023 we mapped out twelve areas of adverse effects if sex in the Equality Act means “certified sex”. If the Scottish Government wins there will be harms in each of these areas and confusion overall. If For Women Scotland wins the provisions will be clear and straightforward and will work together coherently.
AREA | SCOTTISH GOVERNMENT WINS | FWS WINS | |
|---|---|---|---|
 | Single-sex and separate-sex services | Although these will still be lawful, service providers will find them difficult to operate. | The EHRC will be able to produce much clearer, simpler guidance on single-sex services. |
 | Clubs and associations | Women’s associations, including associations of lesbians and for sport, will not be allowed to exclude men who identify as women from membership if those men have a GRC. | Single-sex clubs and associations will be able to operate clearly and lawfully. |
 | The public-sector equality duty (PSED) | Public bodies will be under an obligation to consider and advance the groups of “certified men” and “certified women”, not the groups of actual men and actual women. | Public bodies will be obliged to consider women’s needs and recognise women and men as coherent groups based on sex. |
 | Women’s charities | Not having a clear protected characteristic of sex will make it difficult for single-sex charities (including those concerned with violence against women) to operate effectively. | Charities set up to serve women and girls will be obliged to focus on their aims. Charity regulators should hold them to this. |
 | Sex-specific employment roles | Advertising a role that is female-only will be legally and operationally more risky if a person with a GRC applies. | It will be clearer and simpler to advertise roles for people of one sex or the other, when that is a requirement of the job. |
 | Sex discrimination and sexual- orientation discrimination | A GRC will change the comparators in a sex-discrimination claim, and make the definitions of sexual orientation incoherent. | The comparators in a sex discrimination will be clear. The definition of sexual orientation will make sense. |
 | Positive-action measures | “Women-only” shortlists and other measures aimed at increasing female participation will have to include males with a GRC. | Positive-action measures aimed at women will be for actual women. |
 | Competitive sport | The legal effect of a GRC makes it more complex to exclude male people from female sports. | The sports exception will work as it was intended. |
 | Data collection | Breaking down statistics by certified sex, not biological sex, will seriously distort or impoverish our understanding of some social and medical phenomena. | Organisations will be more likely to collect data on actual sex, without fearing that this is unlawful. |
 | Schools and colleges | If under-18s become able at any point to get GRCs, single-sex schools will have problems maintaining clear admission rules. | Schools and colleges that are single sex will be able to have clear, simple admissions criteria. |
 | Pregnancy and maternity | “Transmen” with a GRC will not have protection in relation to pregnancy under the characteristics of “pregnancy and maternity” or sex. | Pregnancy and maternity protections will continue to apply to all women, even those who have a GRC reading “male”. |
 | Equal pay | Just one employee with a GRC in a workplace could lead to an equal-pay issue being falsely identified, or to a failure to identify such an issue. | Equal-pay rules will track actual sex as they were intended to. |
The areas that are most likely to be discussed in the judgment are the single-sex service exceptions, single-sex associations, pregnancy and trans-identifying females with GRCs and how sexual orientation is defined in the Act.
What next after a win or a loss?
If For Women Scotland wins
The Equality Act will be clear that women and men are recognised as distinct groups reflecting the reality of biology.
- The EHRC should produce clear, straightforward guidance so that employers, service providers and other duty-bearers understand their responsibilities.
- The UK government, Scottish Government, Welsh Government and local authorities should review their policies to ensure they are in line with the law.
- Employers, including the civil service, should review their policies to ensure they are in line with the law, including the implications of FWS1 and FWS2.
- Sector organisations such as CIPD, UKActive, AdvanceHE, the NHS Confederation, the NPCC should review their guidance to their members.
- The Cabinet Office should work with HM Courts and Tribunals to provide guidance to GRC-holders to make sure they understand what a GRC does and doesn’t do.
If For Women Scotland loses
Many of the same recommendations apply. Institutions will have to make sure they are operating in line with the law, including both FWS1 (which made clear that sex is not self-identified gender) and FWS2. But the law will be much harder to understand and comply with, and will lead to adverse impacts on women, women’s organisations, and lesbians and gays.
- In relation to single-sex services, it will remain the case that it is lawful to exclude a transgender person with or without a GRC from single-sex provision where this is a proportionate means to a legitimate aim. But doing so will be legally complex.
- The impact on the public-sector equality duty will also undermine provision of single-sex services.
- In areas where there are no explicit exceptions for gender reassignment, such as associations (including lesbian associations), trans individuals with GRCs will have to be treated as if they have changed sex.
- The ruling will have made clear that the interaction between the Gender Recognition Act 2004 and the Equality Act 2010 produces outcomes which are unworkable and unjust and which were not subject to adequate scrutiny at the time.
- The government should uphold its manifesto commitment to protect women’s services and spaces by issuing clear, strong guidance that it remains lawful to exclude anyone born male, with or without a GRC. It should also consider whether changes to the law are needed to protect women’s rights.
- FWS, Sex Matters and other gender-critical campaigners will consider next steps, including other possible legal cases and pressing for legislative change.
What about trans rights?
In either case trans people continue to be protected by the Equality Act. The Equality Act protects people from unlawful harassment and discrimination in relation to the protected characteristics of gender reassignment as well as the protected characteristic of sex.
As we argued in our intervention, the provisions against discrimination by perception or association means that if a person is treated less favourably because they are viewed as a man or a woman then the Equality Act already protects them from sex discrimination. But it does not mean they have become that sex.
Other laws
The FWS case only directly concerns the interaction between the Equality Act and the Gender Recognition Act. Whatever happens in the Supreme Court, reality will remain in place, and so will underlying human rights. Men with certificates will not actually be women.
There are other laws where sex matters. Sex Matters has two ongoing requests for permission to judicially review policies that relate to other laws: British Transport Police’s searching policy (in relation to PACE 1984) and the Crown Prosecution Service’s guidance on sex by deception. ECHR Article 3 and Article 8 are engaged in both of these cases.
As the Sullivan Review explained, current approaches to collecting data on sex and gender identity do not comply with data-protection laws.
If the Data (Use and Access) Bill currently going through Parliament establishes a digital system that is based on gender self-ID, it will undermine gains made by the campaigns against gender self-ID over the past five years.
Whatever happens, Sex Matters will continue with our mission of campaigning for clarity on law and policy to protect everyone’s human rights.
