In Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025), a five member court of the Supreme Court of the United Kingdom adjudicated that a Scottish statute – The Equality Act 2010, which seeks to give statutory protection to people who are at risk of suffering unlawful discrimination, and in the case of women by providing them with a measure of priority for employment to public boards – construed the term ‘woman’ therein as harbouring a biological meaning, not one augmented by persons gaining such status by ‘gender reassignment’. The court was at pains to emphasise that its task was to construe the language of the statute in accordance with legal principles pertaining to statutory construction, not engage in any social policy prescription by reference to meaning of such terminology within the general community.
The judgment of the court was written by Lord Hodge, Lady Rose and Lady Simler (with whom Lord Reid and Lord Lloyd-Jones agreed):
1. This appeal is concerned with establishing the correct interpretation of the Equality Act 2010 (“the EA 2010”) which seeks to give statutory protection to people who are at risk of suffering from unlawful discrimination. The questions raised by this appeal directly affect women and members of the trans community. On the one hand, women have historically suffered from discrimination in our society and since 1975 have been given statutory protection against discrimination on the ground of sex. On the other hand, the trans community is both historically and currently a vulnerable community which Parliament has more recently sought to protect by statutory provision.
2. It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010. It has a more limited role which does not involve making policy. The principal question which the court addresses on this appeal is the meaning of the words which Parliament has used in the EA 2010 in legislating to protect women and members of the trans community against discrimination. Our task is to see if those words can bear a coherent and predictable meaning within the EA 2010 consistently with the Gender Recognition Act 2004 (“the GRA 2004”).
3. As explained more fully below, the EA 2010 seeks to reduce inequality and to protect people with protected characteristics against discrimination. Among the people whom the EA 2010 recognises as having protected characteristics are women, whose protected characteristic is sex, and “transsexual” people, whose protected characteristic is gender reassignment.
4. The question for this court is a matter of statutory interpretation. But before discussing the general approach to statutory interpretation, we set out the structure of this judgment and address the matter of terminology.
5. We discuss terminology, the approach to statutory interpretation and the factual background between paras 6 and 35. We address the historical background to the GRA 2004, its interpretation and its operation between paras 36 and 111. We then between paras 112 and 264 address in some detail the interpretation of the EA 2010 to give its provisions a coherent and predictable meaning. We summarise our reasoning in para 265.
(1) Terminology
6. We are aware of the strength of feeling which has been generated by the disagreements between campaigners seeking to represent the interests of each of these groups and that taxonomy itself can generate controversy. We are content to draw on the terminology used by the Scottish Ministers in their written case for the purposes of this judgment and have adopted the following terms. A person who is a biological man, ie who was at birth of the male sex, but who has the protected characteristic of gender reassignment is described as a “trans woman”. Similarly, a person who is a biological woman, ie who was at birth of the female sex, but who has the protected characteristic of gender reassignment is described as a “trans man”. We describe trans women and trans men who have obtained a gender recognition certificate (“GRC”) under the GRA 2004 as “trans women with a GRC” and “trans men with a GRC” respectively and their gender resulting from the GRC as their “acquired gender” or “acquired sex”.
7. We also use the expression “biological sex” which is used widely, including in the judgments of the Court of Session, to describe the sex of a person at birth, and we use the expression “certificated sex” to describe the sex attained by the acquisition of a GRC.
(2) The question of statutory interpretation
8. The legislation with which this appeal is principally concerned is the EA 2010 and we address the effect, if any, of the GRA 2004 on the interpretation of the terms “sex”, “man”, “woman”, and “male” and “female” used in the EA 2010. The central question on this appeal is whether the EA 2010 treats a trans woman with a GRC as a woman for all purposes within the scope of its provisions, or when that Act speaks of a “woman” and “sex” it is referring to a biological woman and biological sex.
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(3) How the question arises
15. For Women Scotland (“the appellant”) is a feminist voluntary organisation which campaigns to strengthen women’s rights and children’s rights in Scotland. This case is the second challenge by judicial review which the appellant has raised in relation to statutory guidance which the Scottish Ministers promulgated under section 7 of the Gender Representation on Public Boards (Scotland) Act 2018 (“the 2018 Act”). In the first petition for judicial review the appellant also asserted that the statutory definition of “woman” in the 2018 Act was outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 as amended (“the Scotland Act”). Before we turn to the 2018 Act and the impugned statutory guidance, it may be helpful to outline the basis of that challenge under the Scotland Act.
16. Section 29 of the Scotland Act provides that a provision of an Act of the Scottish Parliament is outside the legislative competence of the Scottish Parliament if it relates to reserved matters. Schedule 5 to the Scotland Act specifies the matters which are reserved to the United Kingdom Parliament. One of the reserved matters (section L2) is “Equal opportunities”. Since May 2016 there have been exceptions to the reservation of equal opportunities to allow the Scottish Parliament to legislate for positive action measures in relation to persons to be appointed to non-executive posts on the boards of certain public authorities in Scotland. Section L2 of Schedule 5 so far as relevant stated the exceptions as:
“Equal opportunities so far as relating to the inclusion of persons with protected characteristics in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions.
Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority, other than any function that relates to the inclusion of persons in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions. …”
17. The Scottish Parliament passed the 2018 Act to provide for positive action measures to be taken in relation to the appointment of women to non-executive posts on boards of certain Scottish public authorities. The 2018 Act sets out a gender representation objective for a public board which is that “it has 50% of non-executive members who are women” (section 1(1)). The attainment of this objective is carefully circumscribed by section 4 which makes clear that preference can be given to a woman in order to further that objective only where there is no best candidate and only if the appointment of an equally qualified male candidate cannot be justified on the basis of his particular characteristics or situation. Section 2 of the 2018 Act defined “woman” as including:
“a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.”
18. In its first judicial review the appellant challenged the statutory definition of “woman” in section 2 of the 2018 Act and paragraphs of the statutory guidance dated June 2020 which discussed that definition and explained that a trans woman had to meet the three criteria in section 2: to have the characteristic of gender reassignment, be living as a woman, and be proposing to undergo, be undergoing, or have undergone a process (or part of a process) as set out in the section 2 definition. The appellant was successful on appeal before the Second Division of the Inner House of the Court of Session (For Women Scotland Ltd v Lord Advocate [2022] CSIH 4; 2022 SC 150), which in para 40 of its judgment dated 18 February 2022 held that “transgender women” is not a protected characteristic under the EA 2010 and that the definition of “woman” adopted in the 2018 Act “impinges on the nature of protected characteristics which is a reserved matter”. By interlocutor dated 22 March 2022 the Second Division declared that the definition of “woman” in section 2 of the 2018 Act was outside the legislative competence of the Scottish Parliament. In other words, because the definition of “woman” in section 2 of the 2018 Act included trans women as defined, it went beyond the scope of the exception permitted by section L2 of Schedule 5 to the Scotland Act; it therefore purported to legislate in respect of a reserved matter, namely equal opportunities, and so was outside the competence of the Scottish Parliament.
19. The response of the Scottish Ministers to this judicial decision was to issue fresh statutory guidance dated 19 April 2022. This guidance operated on the premise that the decision of the Second Division had nullified the definition of “woman” in section 2 of the 2018 Act. Instead, the Scottish Ministers asserted that a person who had been issued with a full GRC that her acquired gender was female, had the sex of a woman so that her appointment would count towards the achievement of the 50% objective. As explained below, this stance was consistent with the advice given by the Equality and Human Rights Commission (“EHRC”), which is the non-departmental public body in Great Britain with responsibility for promoting and enforcing equality and non-discrimination laws in England, Scotland and Wales.
20. The paragraph of the revised guidance which the appellant challenges states:
“2.12 There is no definition of ‘woman’ set out in the Act with effect from 19 April 2022 following decisions of the Court of 18 February and 22 March 2022. Therefore ‘woman’ in the Act has the meaning under section 11 and section 212(1) of the Equality Act 2010. In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.”
21. In July 2022 the appellant petitioned for judicial review to challenge the revised statutory guidance issued by the Scottish Ministers which it argues is unlawful because it is based on an error of law. The appellant seeks a declarator that the guidance is unlawful and an order for its reduction or the reduction of those parts which are found to be unlawful. The appellant argues that the guidance is not within the devolved competence of the Scottish Government under section 54 of the Scotland Act, which provides:
“(1) References in this Act to the exercise of a function being within or outside devolved competence are to be read in accordance with this section. …
(3) In the case of any function other than a function of making, confirming or approving subordinate legislation, it is outside devolved competence to exercise the function (or exercise it in any way) so far as a provision of an Act of the Scottish Parliament conferring the function (or, as the case may be, conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament.”
22. The petition followed correspondence between the appellant’s solicitors and the Scottish Government Legal Directorate (“SGLD”). In a letter dated 1 June 2022 to the appellant’s solicitors the SGLD referred to the EHRC’s guidance entitled “Separate and single-sex service-providers: a guide on the Equality Act sex and gender reassignment provisions” as updated in April 2022 in the light of the decision of the Inner House which we described above. The letter quoted from a section of the EHRC guidance, which was headed “What the Equality Act says about the protected characteristics of sex and gender reassignment” and which stated:
“Under the Equality Act 2010, ‘sex’ is understood as binary, being a man or a woman. For the purposes of the Act, a person’s legal sex is their biological sex as recorded on their birth certificate. A trans person can change their legal sex by obtaining a Gender Recognition Certificate. A trans person who does not have a Gender Recognition Certificate retains the sex recorded on their birth certificate for the purposes of the Act.”
The letter continued:
“This EHRC Guidance confirms that a trans woman with a full GRC has changed their legal sex from their biological sex (male) to their acquired sex (female). Therefore that trans woman has the protected characteristic under the 2010 Act of their acquired sex (female). In terms of the 2018 Act this means that a trans woman with a full GRC must be treated as a woman, which is the position set out in the sentence in the Guidance on the 2018 Act that your clients disagree with.”
23. The Scottish Government’s revised position therefore is that a trans woman with a full GRC is treated by the EA 2010 as having the acquired sex of a woman and therefore is a “woman” in sections 11 and 212(1) of the EA 2010. They accept that the wording of the guidance set out in para 20 above is unfortunate in so far as it suggests that the inclusion of trans women with a GRC is “in addition” to biological women included in sections 11 and 212(1) of the EA 2010. On their case, therefore, the guidance would mean exactly the same without the third sentence.
24. As explained more fully below, a person who is aged at least 18 can apply for a GRC under the GRA 2004. Section 9(1) of that Act provides that when a full GRC is issued to a person the person’s gender becomes “for all purposes” the acquired gender so that if the acquired gender is the female gender, the person’s sex becomes that of a woman. But that provision is “subject to provision made by this Act or any other enactment or any subordinate legislation”: section 9(3).
25. The central issue on this appeal is whether references in the EA 2010 to a person’s “sex” and to “woman” and “female” are to be interpreted in the light of section 9 of the GRA 2004 as including persons who have an acquired gender through the possession of a GRC.
26. The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex. This appeal addresses the position of the small minority of trans people who possess a full GRC. Ben Cooper KC, who appears for the intervener, Sex Matters, states in para 31 of his written case that based on the most recent census data, the Office of National Statistics estimated that there are about 48,000 trans men and 48,000 trans women in England and Wales, and Scotland’s census 2022 found that 19,990 people were trans, compared with a total of 8,464 people who have ever obtained a GRC as at June 2024. He points out that neither possession of a GRC nor the protected characteristic of gender reassignment requires any specific physiological change.
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(6) The legal background: the Sex Discrimination Act 1975
36. The Sex Discrimination Act 1975 (“the SDA 1975”) came into force on 29 December 1975, on the same day as the Equal Pay Act 1970. The long title of the Act described it as rendering unlawful certain kinds of sex discrimination and discrimination on the grounds of marriage. The structure of the SDA 1975 established the basis for the later legislation and several of the themes which are discussed later in this judgment emerge for the first time in this Act.
37. Section 1 of the SDA 1975 defined what amounted to discrimination against women. It provided that a person discriminates against a woman in any relevant circumstances if:
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man: section 1(1)(a) (generally referred to as direct discrimination); or
(b) he applies to her a requirement or condition which he applies or would apply equally to a man but where the proportion of women who can comply with it is “considerably smaller” than the proportion of men who can comply: section 1(1)(b) (generally referred to as indirect discrimination).
38. Section 2(1) provided that section 1 and Parts 2 and 3 of the Act were to be read as applying equally to the treatment of men with such modifications to the wording as necessary. However, section 2(2) provided that in applying the Act to men “no account shall be taken of special treatment afforded to women in connection with pregnancy or childbirth”.
39. Sections 5(2) and 82(1) of the SDA 1975 provided that in the Act “woman” includes a female of any age and “man” includes a male of any age. Similarly, in the Equal Pay Act 1970, section 11(2) provided that “In this Act the expressions ‘man’ and ‘woman’ shall be read as applying to persons of whatever age”.
40. Part 2 of the SDA 1975 dealt with discrimination in the employment field. Section 6(1) made it unlawful for a person to discriminate against a woman in relation to the arrangements he makes for choosing who should be offered a job, in the terms on which he offers her the job or by refusing to offer her the job. Section 6(2) made it unlawful to discriminate against an employed woman in the way that access to opportunities for promotion, training or other services were offered or by dismissing her. There were several exceptions to the prohibition in section 6 which were designed to establish the boundary between the SDA 1975 and the Equal Pay Act 1970. Broadly, subsections (4) to (7) of section 6 excepted discrimination as regards pay and pensions from this prohibition on the basis that differential treatment of this kind would be dealt with under the Equal Pay Act 1970.
41. Certain exceptions were built into the legislation, some of which were repealed long before the whole Act was superseded by the EA 2010. For example, according to section 6(3) as originally enacted, the prohibition on discrimination under section 6(1) and (2) did not apply to employment “for the purposes of a private household” or where the number of people employed was not more than five. The exception for small employers was repealed by the Sex Discrimination Act 1986 and the private household exception re-enacted in a much narrower form by section 1(2) of the 1986 Act, limiting it to where objection might reasonably be taken by a person living in the home to physical or social contact with someone of the opposite sex.
42. Section 7 of the SDA 1975 as enacted provided the exception which is reflected in the subsequent legislation, namely that discrimination is not unlawful where sex is a genuine occupational qualification (“GOQ”). The exception does not apply to discrimination in the terms and conditions on which a woman is employed; once a woman has been engaged in the job, there can be no genuine occupational reason for giving her less favourable terms and conditions than her male colleagues. The circumstances in which the defence of GOQ could be relied upon included the following:
(a) Where the essential nature of the job called for a man for reasons of physiology (other than physical strength or stamina), or for reasons of authenticity in dramatic performances: section 7(2)(a);
(b) Where the job needed to be held by a man to preserve decency or privacy because it was likely to involve physical contact or where men would be in a state of undress or using sanitary facilities: section 7(2)(b);
(c) Where the job holder had to live in premises provided by the employer and there were no facilities to accommodate women either to sleep separately or to use sanitary facilities. This was subject to the proviso that the exception applied only if it was not reasonable to expect the employer to provide separate facilities: section 7(2)(c);
(d) The job holder worked in a prison or hospital where all the people present were men and it was reasonable that the job should not be held by a woman: section 7(2)(d).
43. The defence of a GOQ could be relied on where only some of the duties of the job fell within the circumstances described but it could not be relied on in respect of a vacancy where the employer already had enough male employees to carry out those duties: section 7(3) and (4).
44. The SDA 1975 exempted a range of jobs from the ambit of the Act in whole or in part. For example, as regards prison officers it was not unlawful to impose a height requirement on both male and female prison officers: see section 18(1). Further the Act made some textual amendments to earlier legislation which assumed that all employees in occupations covered by that legislation would be men. For example, the provision in the Mines and Quarries Act 1954 which provided that no female should be employed below ground at a mine was modified to apply only to jobs where the duties ordinarily required the employee to spend a significant proportion of his time below ground: see section 21(1) of the SDA 1975. The language used in the Coal Mines Regulation Act 1908 was also modified to reflect the fact that women might now be employed; for the words “workman” or “man” there were substituted “worker”: section 21(2).
45. Part 3 of the SDA 1975 dealt with discrimination in fields other than employment, in particular schools and universities (with an exception for single-sex establishments) and in the provision of goods, facilities or services. Section 29 provided that it was unlawful to discriminate on grounds of sex in the provision of a wide range of services including banking, transport, recreation and the services of any trade or local authority.
46. Again, there were various exceptions such as providing accommodation where the provider intended to continue to reside at the premises: section 32(1)(a). Section 35(1) provided a more general exception to the prohibition in section 29(1) for a person who provided facilities or services restricted to men where, for example (section 35(1)(c)):
“(c) the facilities or services are provided for, or are likely to be used by, two or more persons at the same time, and
(i) the facilities or services are such, or those persons are such, that male users are likely to suffer serious embarrassment at the presence of a woman, or
(ii) the facilities or services are such that a user is likely to be in a state of undress and a male user might reasonably object to the presence of a female user.”
47. Further, there was an exception where it was likely that there would be physical contact between the user of the facilities and another person and that other person might reasonably object if the user was a woman: see section 35(2).
48. Part 5 of the SDA 1975 conferred further general exceptions. These included the following:
(a) Section 44 provided that nothing prevented excluding men from women’s sporting competitions or other activities of a competitive nature where the physical strength, stamina or physique of the average woman put her at a disadvantage to the average man.
(b) Section 46 made further provision about maintaining single-sex communal accommodation provided that the accommodation was managed in a way which “comes as near as may be to fair and equitable treatment of men and women”.
(c) Section 49 provided for ensuring appropriate representation on the bodies of trade unions, employer organisations and other professional or trade bodies. Where the body concerned was made up wholly or mainly of elected members it would not be unlawful to reserve seats on the body for persons of one sex in order to ensure that a minimum number of persons of that sex were members, if this was needed “to secure a reasonable lower limit to the number of members of that sex serving on the body”.
49. The SDA 1975 was amended in important respects before being repealed by the EA 2010. In 2005 and 2008, provisions were inserted by the Employment Equality (Sex Discrimination) Regulations 2005 (SI 2005/2467) and the Sex Discrimination (Amendment of Legislation) Regulations 2008 (SI 2008/963) to prohibit discrimination against women on the ground of pregnancy or maternity leave both in employment (section 3A) and in the provision of services etc (section 3B).
50. What we draw from this consideration of the SDA 1975 are the following points.
51. First, there can be no doubt that Parliament intended that the words “man” and “woman” in the SDA 1975 would refer to biological sex – the trans community of course existed at the time but their recognition and protection did not.
52. Secondly, the legislation recognised and accommodated the reasonable expectations of people that in situations where there was physical contact between people, or where people would be undressing together or living in the same premises, or using sanitary facilities together, considerations of privacy and decency required that separate facilities be permitted for men and women.
53. Thirdly, a range of other exceptions were considered necessary and reasonable, particularly (a) in relation to sport and competitive activity where typical masculine physique would give an unfair advantage and (b) where positive action was needed to ensure that there was a reasonable representation of men and women on the boards of certain bodies.
(7) Discrimination on the grounds of being transgender: the 1999 Regulations
54. The common law of England and Wales did not recognise the possibility of a person becoming a different gender from their gender at birth. In the well-known case of Corbett v Corbett (otherwise Ashley) [1971] P 83, the High Court declared that a marriage was null and void where both parties were biological males but one had undergone gender reassignment. Ormrod J said that over a very large area, the law is indifferent to sex. In other areas, such as insurance and pension schemes, there was nothing to prevent the parties to a contract from agreeing that the person concerned should be treated as a man or a woman, as the case may be: p 105. But marriage was a relationship between a man and a woman and, in the context of marriage, even if not for other purposes, the person was still a biological male. That conclusion that a person could not change sex was applied in the criminal law in R v Tan [1983] QB 1053.
55. In P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795, [1996] ECR I-2143 (“P v S”) the European Court of Justice considered the scope of the Equal Treatment Directive, that is Council Directive 76/207/EEC (OJ 1976 L39 p 40) in the context of alleged discrimination connected to gender reassignment. The applicant (a biological male employee) was dismissed by Cornwall County Council after telling her employer that she intended to undergo gender reassignment surgery. She complained of unlawful discrimination on the grounds of her sex. The Judge Rapporteur recorded that the industrial tribunal “found that there was no remedy under the Sex Discrimination Act 1975, the applicable United Kingdom statute, since English law took cognisance only of situations in which men or women were treated differently because they belonged to one sex or the other, and did not recognise a transsexual condition in addition to the two sexes. Under English law, the applicant was at all times a male” (para 7). The Court at para 18 held that the Directive was “simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of Community law”. The right not to be discriminated against on grounds of sex was, the Court said, a fundamental human right and accordingly the Directive also applied to discrimination arising from gender reassignment (para 20).
56. The P v S decision led to the adoption of the Sex Discrimination (Gender Reassignment) Regulations 1999 (SI 1999/1102) (“the 1999 Regulations”). The 1999 Regulations amended the SDA 1975 in important ways.
57. First, regulation 2 inserted section 2A which defined discrimination as including treating a person, B, less favourably “on the ground that B intends to undergo, is undergoing or has undergone gender reassignment” for the purposes of any provision in Part 2 or, subject to a limited exception, Part 3 of the SDA 1975. A definition of “gender reassignment” was inserted into section 82 of the SDA 1975:
“‘gender reassignment’ means a process which is undertaken under medical supervision for the purpose of reassigning a person’s sex by changing physiological or other characteristics of sex, and includes any part of such a process …”
58. The 1999 Regulations did not insert a free-standing prohibition on discrimination separate from section 6. Rather, the prohibition on discriminating against a woman now prohibited direct discrimination as defined by section 2A, namely on the grounds of gender reassignment, but only in the employment field. It was therefore unlawful under section 6 for A to discriminate against a woman in the ways caught by section 6 on the ground that she intended to undergo or was undergoing or had undergone gender reassignment. In light of section 2 of the SDA 1975, this also made it unlawful under section 6 for A to discriminate against a man if A treated him less favourably on that ground. However, the subsections of section 6 which prevented the overlap with the Equal Pay Act 1970 were disapplied so that discrimination in respect of pay and pensions on the grounds of gender reassignment was prohibited under section 6: see the new section 6(8) inserted by regulation 3(1) of the 1999 Regulations.
59. Regulation 4 of the 1999 Regulations inserted section 7A which provided for an exception to the prohibition of discrimination in section 6(1) and (2) of the SDA 1975 where the discrimination fell within section 2A but where “being a man” or “being a woman” was a GOQ for the job and the treatment was reasonable in view of the circumstances described in section 7(2) and any other relevant circumstances.
60. Further, section 7B was inserted into the SDA 1975 to provide an additional exception to the unlawfulness of discrimination under certain elements of section 6(1) where there was a “supplementary genuine occupational qualification” for the job. A supplementary GOQ was defined in the new section 7B(2) as arising only in the circumstances set out in subsection (2). Thus:
(a) The holder of the job was “liable to be called upon to perform intimate physical searches pursuant to statutory powers”: section 7B(2)(a).
(b) The holder of the job had to live in a private home and the job involved a degree of physical or social contact with a person living in the home or knowledge of the intimate details of that person’s life and that person might reasonably object to the job being held by someone who was undergoing or who had undergone gender reassignment: section 7B(2)(b).
(c) The holder of the job would have to share accommodation provided by the employer with other employees who, for the purpose of preserving decency and privacy, might reasonably object to sharing the accommodation and facilities with someone whilst the job holder was undergoing gender reassignment: section 7B(2)(c) and 7B(3).
(d) The holder of the job provided personal services to vulnerable individuals and the employer’s reasonable view was that the services could not be effectively provided by someone undergoing gender reassignment: section 7B(2)(d) and 7B(3).
61. Some of these exceptions (such as that described in (b) above) were limited to where the person was undergoing or had undergone gender reassignment and did not except discrimination where the person intended to undergo gender reassignment. Others (such as that described in (c) above) applied only where the person intended to undergo or was undergoing gender reassignment but not where the person had undergone gender reassignment. Similar exceptions to discrimination were also provided for other forms of employment, including contract workers (regulation 4(2)-(3) amending section 9 of the SDA 1975), and partnerships (regulation 4(4)-(5) amending section 11 of the SDA 1975).
62. The 1999 Regulations did not amend the definitions of “man” and “woman” in the SDA 1975.
(8) The GRA 2004 as enacted
63. The enactment of the GRA 2004 was prompted by the judgment of the European Court of Human Rights (“ECtHR”) in Goodwin v United Kingdom (Application No 28957/95) (2002) 35 EHRR 18 (“Goodwin”) and by a declaration of incompatibility made by the House of Lords in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467 (“Bellinger”). In Goodwin, the applicant’s biological sex was male but she had undergone gender reassignment surgery. The ECtHR held that it was a breach of the applicant’s right to respect for private life under article 8 of the Convention for there to be no legal recognition of her acquired gender. The ECtHR described the applicant as having initially undergone hormone therapy, grooming classes and voice training and as having “lived fully as a woman” since 1985. She later underwent gender reassignment surgery at a National Health Service hospital. The Court referred to various difficulties faced by the applicant because of the failure of the law to recognise her acquired gender. These included her inability to change her birth certificate, and different treatment as regards social security and national insurance issues, pensions and employment. The Court recognised that it had previously held that UK law did not interfere with respect for private life: para 73. But in the light of the then social conditions, it reassessed the appropriate application of the Convention.
64. The ECtHR was struck in particular by the fact that the National Health Service recognised the condition of gender dysphoria and provided reassignment surgery “with a view to achieving as one of its principal purposes as close an assimilation as possible to the gender in which the transsexual perceives that he or she properly belongs” (para 78). Yet there was no legal recognition of her changed status in law. The Court discussed medical evidence about the causes of what it called “transsexualism” and noted that the vast majority of Contracting States, including the UK, provided treatment including irreversible surgery. However, the ongoing debate about the exact causes of the condition were of diminished relevance because “given the numerous and painful interventions involved in such surgery and the level of commitment and conviction required to achieve a change in social gender role” it could not be suggested that there was “anything arbitrary or capricious in the decision taken by a person to undergo gender re-assignment”: para 81.
65. The Court concluded that the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone which is not quite one gender or the other was no longer sustainable: para 90.
66. The Goodwin judgment was considered by the House of Lords in Bellinger where their Lordships were invited to declare a marriage valid which had been entered into by a man and a trans woman. Their Lordships declined to do so. Lord Nicholls referred to Goodwin and the Government’s announcement that it intended to bring forward primary legislation to address the issue. He said that recognition of Mrs Bellinger as female for the purposes of section 11(c) of the Matrimonial Causes Act 1973 “would necessitate giving the expressions ‘male’ and ‘female’ in that Act a novel, extended meaning: that a person may be born with one sex but later become, or become regarded as, a person of the opposite sex”: para 36. Lord Nicholls went on:
“37. This would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion. Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced. The issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament, the more especially when the Government, in unequivocal terms, has already announced its intention to introduce comprehensive primary legislation on this difficult and sensitive subject.”
67. The House of Lords held further that it was not possible to “read down” the 1973 Act and made a declaration of incompatibility under section 4 of the Human Rights Act 1998.
68. The GRA 2004 came into force on 4 April 2005 and provides a framework for recognising a person’s reassigned gender. The compatibility of the UK’s provision for recognition of gender reassignment with article 8 of the Convention was considered by the ECtHR again in Grant v United Kingdom (Application No 32570/03) (2006) 44 EHRR 1. There a trans woman complained that she was only entitled to receive her state pension at age 65, the age for men, rather than at 60, the age for women. She had been issued with a GRC once the GRA 2004 came into force. The Court held that the duration of the applicant’s victim status lasted from the occasion on which she was refused a pension following the Court’s judgment in Goodwin until the passing of the GRA 2004: para 43.
69. The main provisions of the GRA 2004:
(a) provided for applications to be made for a GRC and for the criteria to be applied and the evidence to be provided: sections 1, 2 and 3;
(b) established a Gender Recognition Panel (“the Panel”) to determine those applications and provided for appeals from decisions of the Panel: section 1(3) and Schedule 1;
(c) provided for the consequences of the issue of a gender recognition certificate, including the creation and maintenance of the Gender Recognition Register described in Schedule 3;
(d) provided for a prohibition on disclosure of protected information about a person who has made an application: section 22;
(e) provided for limited amendments to the SDA 1975.
70. We discuss each of these briefly in turn, focussing for present purposes on the text of the GRA 2004 as originally enacted, since neither party has suggested that any of the amendments made to the GRA 2004 can affect how it applies to the EA 2010.
(i) Applications for gender recognition certificates
71. Section 1 of the GRA 2004 provides that a person aged 18 or over can apply for a GRC on the basis of “living in the other gender” or having changed gender in an overseas country. Section 2 provides that where the application is based on the person living in the other gender, the Panel must grant the application if satisfied that the applicant satisfies four criteria, namely that the applicant:
(a) has or has had gender dysphoria,
(b) has lived in the acquired gender throughout the period of two years ending with the date on which the application is made,
(c) intends to continue to live in the acquired gender until death, and
(d) complies with the evidential requirements imposed by and under section 3.
72. The evidence required under section 3 includes two medical reports, one of which must be by a registered medical practitioner or chartered psychologist practising in the field of gender dysphoria, and that report must include “details of the diagnosis of the applicant’s gender dysphoria”. Further, if the applicant has undergone or is undergoing or plans to undergo treatment to modify sexual characteristics, one of the reports must include details of that treatment. The applicant must also provide a statutory declaration that the applicant has lived in the acquired gender for two years and intends to do so until death.
73. From its enactment, the GRA 2004 went further than the decision in Goodwin may strictly have required at that point to ensure compliance with article 8. The applicant in Goodwin had undergone what the ECtHR described as “the long and difficult process of transformation” (para 78), but the GRA 2004 recognised a broader class of transgender people as entitled to formal recognition even if they had not undergone surgery. In that respect, the GRA 2004 anticipated the decision of the ECtHR in AP, Garçon and Nicot v France (Applications Nos 79885/12, 52471/13 and 52596/13, judgment of 6 April 2017). In that case the Court held that it was a breach of article 8 to make legal recognition of a person’s transgender status conditional on sterilisation surgery or on treatment which entailed a very high probability of sterility: see para 120 of the judgment. The Court noted that imposing such a pre-condition presented transgender persons “with an impossible dilemma” if they did not want to undergo sterilisation surgery or treatment. That condition amounted to a violation of article 8. However, there was no breach of article 8 in requiring a diagnosis of gender dysphoria. There was at that time near-unanimity amongst Contracting States in requiring such a diagnosis and imposing that requirement did not infringe article 8: see para 140.
74. Applications for a GRC are determined by the Panel in private and, according to section 4 of the GRA 2004, if the Panel grants the application it must issue a GRC to the applicant. The certificate is either a full certificate if the applicant is not married or an interim certificate if the applicant is married. The Act contains complex provisions for addressing the issues raised by the response of the applicant’s spouse to the successful application: see Schedule 4 to the Act. The issue of an interim certificate is a ground for divorce and if divorce ensues, the applicant must then be granted a full GRC. Appeals on a point of law from the rejection of an application go to the High Court or Court of Session: section 8. The certificate must state that the acquired gender is male or is female: the Panel has no power to issue a “non-binary” certificate, even where the applicant has a certificate declaring them to be “non-binary” issued by an overseas authority: see R (Castellucci) v Gender Recognition Panel [2024] EWHC 54 (Admin), [2024] KB 995.
75. Section 9 of the GRA 2004 is key to the issues raised in this appeal. It remains in force in the form originally enacted and provides:
“9 General
(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).
(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.”
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(12) The importance of clarity and consistency both for those with legal rights and protections, and those who have duties imposed on them by the EA 2010
151. Accordingly, it is clear from the above that the EA 2010 gives important legal rights to individuals and groups who are vulnerable to unlawful discrimination because of a particular or shared protected characteristic, and both protects against unlawful discrimination and seeks to advance equal treatment. In doing so it seeks to strike a balance between the rights of one group and another, rights that can conflict with or contradict one another in some circumstances. An obvious example of such conflict emerges in employment cases concerning the protected characteristics of religion or belief on the one hand and sexual orientation on the other: see for example Islington London Borough Council v Ladele [2009] EWCA Civ 1357; [2010] 1 WLR 955 which concerned disciplinary proceedings taken against a designated civil partnership registrar who refused to conduct same sex civil partnership ceremonies in accordance with the Civil Partnership Act 2004 on the ground that such unions were contrary to her orthodox Christian belief that “marriage is the union of one man and one woman for life” (para 7).
152. The EA 2010 also imposes duties on individuals and organisations not to discriminate unlawfully. It does so by regulating the practical day-to-day conduct of public and private sector employers (small, medium and large), service-providers and others in relation to employees, workers, service users and members of the public who have one or more protected characteristics. Since sex as a protected characteristic is a ground for these legal rights, it must be possible for sex to be interpreted in a way that is predictable, workable and capable of being consistently understood and applied in practice by this wide range of duty-bearers.
153. The group-based rights or protections in the EA 2010 recognise that people who share a particular protected characteristic (known or perceived) often have common experiences or needs, whether arising from differences of biology or physiology, or societal expectations or structures affecting their group. These shared experiences or needs can and do give rise to particular disadvantage if they are not met, and they differentiate that group from other groups without the protected characteristic. As we have said, the duties imposed by the EA 2010 require an ability to anticipate that particular rules, policies or practices might affect those who share a protected characteristic and have distinct needs or interests in consequence. Those upon whom the EA 2010 imposes duties (the duty-bearers) must regulate their conduct and practices to avoid unlawful indirect discrimination. Organisations considering taking appropriate positive action measures must be able to identify membership of a disadvantaged group sharing a particular characteristic. Public authorities subject to the duty in section 149 (the PSED) must be able to identify differently affected groups if they are to be able to analyse the features which may disadvantage some groups over others or affect relations between them, in order to analyse the impact of their policies.
154. In short, clarity and consistency about how to identify the relevant groups that share protected characteristics are essential to the practical operation of the EA 2010.
(13) The central question: does the EA 2010 make provision within the meaning of section 9(3) of the GRA 2004 to displace the application of section 9(1)?
155. Against that background, we turn to address the central question in this appeal.
156. To recap, section 9(1) of the GRA 2004, read with section 9(2) and (3), has the effect that the gender of a person with a GRC becomes the acquired gender “for all purposes” so that “if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman”, unless there is a specific exception in the GRA 2004 itself or unless the terms and context of an enactment, including a subsequent enactment, demonstrate that there is “provision made” by that enactment pursuant to section 9(3) that negates the effect of section 9(1). In other words, section 9(1) applies unless section 9(3) applies. Section 9(3) will obviously apply where the GRA 2004 or subsequent enactment says so expressly. But express disapplication of section 9(1) is not necessary as we have explained. Section 9(3) will also apply where the terms, context and purpose of the relevant enactment show that it does, because of a clear incompatibility or because its provisions are rendered incoherent or unworkable by the application of the rule in section 9(1).
157. There is no doubt that the EA 2010 was enacted in the knowledge of the existence of the GRA 2004, its known consequences and the case-law which both prompted it (Goodwin) and confirmed the GRA 2004 as having remedied the Convention breach (Grant). Indeed, the EA 2010 contains an exemption for gender reassignment discrimination in the context of solemnisation of marriage, which refers expressly to the effects of section 9(1) as “[the person’s] gender has become the acquired gender under the Gender Recognition Act 2004” (see paragraph 24 of Part 6 and paragraph 25 of Part 6ZA of Schedule 3 to the EA 2010). So, the strongly worded rule in section 9(1) of the GRA 2004 must be taken to apply to the EA 2010 by virtue of section 9(2) unless there is “provision made” in the EA 2010, that disapplies or negates the effect of section 9(1) on the meaning of sex in the EA 2010. If section 9(3) does not apply, then the section 9(1) rule does apply and sex in the EA 2010 must have an extended meaning that includes “certificated sex”. If that is the position, then the Scottish Ministers’ guidance about the application of the 2018 Act is correct and lawful in making clear that trans women with a GRC can count towards the attainment of the goal of achieving 50% representation of women on the public boards covered by the 2018 Act.
158. There is no provision in the EA 2010 that expressly addresses the effect (if any) which section 9(1) of the GRA 2004 has on the definition of “sex” or the words “woman” or “man” (and cognate expressions) used in the EA 2010. The terms “biological sex” and “certificated sex” do not appear anywhere in the Act. However, the mere fact that the word “biological” is absent from the EA 2010 definition of “sex” is not by itself indicative of Parliament’s intention that a “certificated sex” meaning is intended. The same is true of the absence of the word “certificated” in the definition of “sex”.
159. In the Outer House, Lady Haldane concluded (at para 53) that section 9(2) of the Victims and Witnesses (Scotland) Act 2014 (as amended by the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021) can only properly (or fairly) be read to mean biological sex when it uses the term “sex”. This is because the purpose of the amendment (introduced by the 2021 Act) was to ensure that section 9(2) of the 2014 Act read as follows: “Before a medical examination of the person is carried out by a registered medical practitioner, the person must be given an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a sex specified by the person”. We agree with her analysis: sex as used in this provision must mean biological sex notwithstanding that there is no reference to biological sex in this provision. The clear statutory intention is to respect the right of a female or male victim of a sexual crime to request same sex care should she or he so wish because it has always been, and still is, well recognised that reasonable objection can be taken to an intimate medical examination by a member of the opposite biological sex. References to sex could only be references to biological sex in context.
160. If the EA 2010 can only be read coherently to mean biological sex, the same result must follow. The question that must therefore be answered is whether there are provisions in the EA 2010 that indicate that the biological meaning of sex is plainly intended and/or that a “certificated sex” meaning renders these provisions incoherent or as giving rise to absurdity. An interpretation that produces unworkable, impractical, anomalous or illogical results is unlikely to have been intended by the legislature.
161. What is necessary therefore is a close analysis of the EA 2010 to identify whether there are indicators within it that demonstrate that section 9(3) of the GRA 2004 applies and displaces the rule in section 9(1). We start by considering the core provisions in the EA 2010 that depend on or relate to “sex” to consider whether as a matter of ordinary language these provisions can only properly be interpreted as meaning biological sex, or whether they are to be interpreted as also extending to include persons living in the opposite acquired gender who have been issued with a GRC (see paras 166 to 209 below). We will then consider the practicability and workability of the duties imposed and protections afforded by the EA 2010 if a “certificated sex” interpretation is adopted (see paras 210 to 246 below). Finally, we will consider whether a “biological sex” interpretation is contra-indicated because it would remove important protection under the EA 2010 from trans people with a GRC (see paras 248 to 264 below).
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(21) Summary on the EA 2010
264. For all these reasons, this examination of the language of the EA 2010, its context and purpose, demonstrate that the words “sex”, “woman” and “man” in sections 11 and 212(1) mean (and were always intended to mean) biological sex, biological woman and biological man. These and the other provisions to which we have referred cannot properly be interpreted as also extending to include certificated sex without rendering them incoherent and unworkable. In other words, in relation to sex discrimination (for the purposes of sections 11 and 212(1)), a person with the protected characteristic of sex has the characteristic of their biological sex only: a trans man with a GRC (a biological female but legally male for those purposes to which section 9(1) of the GRA 2004 applies) is a woman for the purposes of section 11 and a trans woman with a GRC (biologically male but legally female for those purposes to which section 9(1) applies), is a man and not entitled to be treated as a woman under the EA 2010. This conclusion does not remove or diminish the important protections available under the EA 2010 for trans people with a GRC as we have explained. To the contrary, this potentially vulnerable group remains protected in the ways we have described. In these circumstances, and notwithstanding that there is no express provision in the EA 2010 addressing the effect which section 9(1) of the GRA 2004 has on the definition of “sex”, we are satisfied that the EA 2010 does make provision within the meaning of section 9(3) that disapplies the rule in section 9(1) of the GRA 2004.
(22) Summary of our reasoning
265. We are aware that this is a long judgment. It may assist therefore if we summarise our reasoning.
(i) The question for the court is a question of statutory interpretation; we are concerned with the meaning of the provisions of the EA 2010 in the light of section 9 of the GRA (para 2).
(ii) Parliament in using the words “man” and “woman” in the SDA 1975 referred to biological sex (paras 36-51).
(iii) The 1999 Regulations, enacted in response to P v S, created a new protected characteristic of a person intending to undergo, or undergoing or having undergone gender reassignment. The 1999 Regulations did not amend the meaning of “man” or “woman” in the SDA 1975 (paras 54-62).
(iv) The GRA 2004 did not amend the meaning of “man” and “woman” in the SDA 1975 (para 80).
(v) Section 9(3) of the GRA 2004 disapplies the rule in section 9(1) of that Act where the words of legislation, enacted before or after the commencement of the GRA 2004, are on careful consideration interpreted in their context and having regard to their purpose to be inconsistent with that rule. It is not necessary that there are express words disapplying the rule in section 9(1) of the GRA 2004 or that such disapplication arises by necessary implication as the legality principle does not apply (paras 99-104).
(vi) The context in which the EA 2010 was enacted was therefore that the SDA 1975 definitions of “man” and “woman” referred to biological sex and trans people had the protected characteristic of gender reassignment.
(vii) The EA 2010 is an amending and consolidating statute. It enacts group-based protections against discrimination on the grounds of sex and gender reassignment and imposes duties of positive action (paras 113, 142-149).
(viii) It is important that the EA 2010 is interpreted in a clear and consistent way so that groups which share a protected characteristic can be identified by those on whom the Act imposes obligations so that they can perform those obligations in a practical way (paras 151-154).
(ix) There is no indication in relevant secondary materials that the EA 2010 modified in any material way the meaning of “man” and “woman” or “sex” from the meanings in the SDA 1975 (para 164).
(x) Interpreting “sex” as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way. It would create heterogeneous groupings. As a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity (sections 13(6), 17 and 18), and to protection from risks specifically affecting women (Schedule 22, paragraph 2), can only be interpreted as referring to biological sex (paras 172, 177-188).
(xi) We reject the suggestion of the Inner House that the words can bear a variable meaning so that in the provisions relating to pregnancy and maternity the EA 2010 is referring to biological sex only, while elsewhere it refers to certificated sex as well (paras 189-197).
(xii) Gender reassignment and sex are separate bases for discrimination and inequality. The interpretation favoured by the EHRC and the Scottish Ministers would create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a GRC greater rights than those who do not. Those seeking to perform their obligations under the Act would have no obvious means of distinguishing between the two sub-groups to whom different duties were owed, particularly since they could not ask persons whether they had obtained a GRC (paras 198-203).
(xiii) That interpretation would also seriously weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations (paras 204-209).
(xiv) There are other provisions whose proper functioning requires a biological interpretation of “sex”. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others (paras 210-228).
(xv) Similar incoherence and impracticability arise in the operations of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces (paras 229-246).
(xvi) It is striking that the EHRC has advised the UK Government of the problems created by its interpretation of the EA 2010, which include many of the matters which we have discussed above, and has called for legislation to amend the Act. The absence of coherence and the practical problems to which that interpretation gives rise are clear pointers that the interpretation is not correct (para 247).
(xvii) The interpretation of the EA 2010 (ie the biological sex reading), which we conclude is the only correct one, does not cause disadvantage to trans people, with or without a GRC. In the light of case law interpreting the relevant provisions, they would be able to invoke the provisions on direct discrimination and harassment, and indirect discrimination. A certificated sex reading is not required to give them those protections (paras 248-263).
(xviii) We therefore conclude that the provisions of the EA 2010 which we have discussed are provisions to which section 9(3) of the GRA 2004 applies. The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex. Any other interpretation would render the EA 2010 incoherent and impracticable to operate (para 264).
(23) Invalidity of the Scottish Government’s Guidance
266. For all these reasons, we conclude that the Guidance issued by the Scottish Government is incorrect. A person with a GRC in the female gender does not come within the definition of “woman” for the purposes of sex discrimination in section 11 of the EA 2010. That in turn means that the definition of “woman” in section 2 of the 2018 Act, which Scottish Ministers accept must bear the same meaning as the term “woman” in section 11 and section 212 of the EA 2010, is limited to biological women and does not include trans women with a GRC. Because it is so limited, the 2018 Act does not stray beyond the exception permitted in section L2 of Schedule 5 to the Scotland Act into reserved matters. Therefore, construed in the way that we have held it is to be construed, the 2018 Act is within the competence of the Scottish Parliament and can operate to encourage the participation of women in senior positions in public life.
267. There may well be public boards on which it is also important for trans people of either or both genders to be represented in order to ensure that their perspective is brought to bear in the board’s deliberations and in the organisation’s governance. Nothing in this judgment is intended to discourage the appointment of trans people to public boards or to minimise the importance of addressing their under-representation on such boards. The issue here is only whether the appointment of a trans woman who has a GRC counts as the appointment of a woman and so counts towards achieving the goal set in the gender representation objective, namely that the board has 50% of non-executive members who are women. In our judgment it does not.
(24) Conclusion
268. We would allow the appeal.
(emphasis added)
A link to the full decision is here.
