The UK’s highest court has unanimously ruled that the terms woman and sex in the Equality Act 2010 “refer to a biological woman and biological sex” in what has been considered a major blow to transgender campaigners.
The Scottish Government’s arguments that the category of “woman” included both biological females and biological males who held a Gender Recognition Certificate (GRC) has been rejected by the Supreme Court.
But what legal implications are there for trans people going forward? We spoke to some experts to find out more.
Does a GRC have any value?
GRCs, which allow trans people to change their sex on legal documents, have been issued to 8464 people in the UK since their introduction in 2004, the court previously heard.
The 2004 Gender Recognition Act used the terms sex and gender interchangeably, and said a GRC meant someone "becomes for all purposes the acquired gender". However, that was subject to "other enactment or any subordinate legislation".
Lord Hodge said the decision of the Supreme Court was unanimous that the definitions of “sex” and “woman” in the later Equality Act 2010 were biological definitions.
Trans activist Ellie Gomersall said the ruling ends "20 years of understanding" that transgender people with a GRC are able to be "recognised legally as our true genders".
Following the judgment, Professor David Cabrelli – an expert in labour law at Edinburgh University – said in terms of accessing single-sex spaces and organisations, the ruling now renders a GRC “fairly unhelpful”.
Asked if the GRC now had any value, he told The National: “I suppose for purposes of passports and driving licences, yes. But in terms of situations where biological women have single sex spaces or even a female prison for example, it’s not going to be particularly useful because they [trans people] can be excluded.
“It’s not universally useful after today. It’s only going to be used for changing your birth certificate, getting a passport, for example.
“It’s not going to affect your ability to get social security benefits because you could still be considered to be female if you’re biologically male before. But when it comes to access to single-sex areas, it’s going to be pretty useless.”
Cabrelli added people now may struggle to raise a discrimination case if they are excluded from a single-sex space.
He went on: “The provisions in the act that provide exemptions where you can have single-sex services, single-sex spaces, they are basically restricted to biological sex and the way that the word sex has been interpreted today means trans women are basically excluded from all of these services and organisations. So it’s pretty far reaching.
“I think they would lose that kind of case though because the way the Supreme Court have put this across today seems pretty clear that biological women can exclude trans women from a whole host of female-only competitions like sports associations and competition-based organisations.”
‘Important not to scaremonger’
However, while it will affect people with a GRC being able to access single-sex spaces, experts have said it does not really impact discrimination cases in any other sense, which transgender people will still be able to raise with or without a GRC.
Paragraphs 250 onwards in the judgment make it clear that someone does not need to have a GRC to claim direct discrimination for being transgender in a whole host of cases, with examples provided.
An example in the judgment reads: “A trans woman who applies for a job as a sales representative and the sales manager thinks that she is a biological woman because of her appearance and does not offer her the job even though she performed best at interview and gives the job instead to a biological man.
"She would have a claim for direct discrimination because of her perceived sex and her comparator would be someone who is not perceived to be a woman. The fact that she is not a biological woman should make no difference to her claim, which would be treated in the same way as a direct discrimination claim made by a biological woman based on the sex of the complainant herself.”
Scott Wortley, a lecturer in commercial law at Edinburgh University, said when it comes to discrimination in the Equality Act, this judgment is “neutral”.
“The decision today has effectively, retrospectively, said that was right.”
He went on: “If an individual is discriminating on the basis that think someone is a woman, even if they do not have a GRC, a person will still be able to raise a discrimination action.
“Some people are understandably worried and the court within the judgment are trying to give assurances about all the protections that are still there.
“In relation to those discrimination protections, this is neutral effectively. It’s important not to scaremonger and to say to people this is a complete transformation because it isn’t.”
Ruling provides ‘absolute clarity’
Cabrelli and Wortley both said they were unsurprised by the ruling, with Cabrelli stressing he had always understood the term “woman” in the Equality Act to be biological based on wording in the legislation that preceded it – the Sex Discrimination Act 1975.
“When I learnt employment law it was the old legislation, the Sex Discrimination Act 1975, and it was pretty clear from that act and the debate in the 1970s that led up to that, that it was biological sex,” he said.
“When Parliament enacted a new act, they just picked up all of the wording that was in the 1975 act and transferred it, as regards the meaning of sex.”
Wortley added: “What there is now, is absolute clarity.
"Previously what some people were saying about how the law operated did not reflect the way in which the law was worded, so this judgment to some of us is less of a surprise than to those who have been presenting this area of law saying ‘here is a set of propositions’ for a period of years, which has not actually reflected what the law says.”
