UKSC to decide what ‘Woman’ means in the Equality Act 2010

by | Jan 30, 2025

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About Mihika Poddar

Mihika is a DPhil candidate in law at the University of Oxford, working on legal recognition of personal identities, including race, sex/gender and caste. Mihika competed the MPhil in Law in 2021, and obtained the Bachelor of Civil Law (BCL) with Distinction on a Rhodes Scholarship. Mihika is also a qualified Indian lawyer. Her interests include human rights, equality, climate change and constitutional law.

The UK Supreme Court  (UKSC) is poised to deliver its judgment in For Women Scotland v The Scottish Ministers, examining whether ‘woman’ under the Equality Act 2010 (EA) includes trans women with a Gender Recognition Certificate (GRC) issued under the Gender Recognition Act 2004 (GRA). This blog discusses why GRC holders should not be excluded from the EA’s sex discrimination protections.

The case arose from the Scottish Government’s guidance for the Gender Representation on Public Boards (Scotland) Act 2018, which defines ‘women’ to include those with a GRC conferring ‘female’ legal sex. The guidance states that this is in line with EA and GRA. For Women Scotland (FWS) challenged this, arguing that ‘woman’ in the EA refers exclusively to biological sex determined at birth. With the Court of Session (CoS) finding for the government, FWS has appealed before the UKSC.

Section 9(1) GRA provides that, upon the issuance of a GRC, a person’s acquired gender becomes their legal gender “for all purposes.” However, Section 9(3) GRA acknowledges exceptions where its other provisions, or any other legislation may limit Section 9(1) GRA’s application.

UKSC will decide whether references to ‘woman’ in EA refer solely to biological sex, despite no explicit statement to that effect, or include the legal gender of GRC holders. There are several reasons suggesting the latter.

First, this is in line with the purpose of GRA, which was enacted to give legal recognition to the acquired gender of trans persons, pursuant to the European Court of Human Right’s (ECtHR) ruling in Goodwin v UK where lack of recognition of trans persons in spheres such as employment, social security, pensions, and marriage was found to be in violation of Articles 8 and 12 of European Convention on Human Rights. Not recognising one’s acquired gender for sex discrimination will undermine this purpose, denying protections in important spheres of everyday life governed by EA. This in turn would perpetuate the indignity and humiliation of trans persons that the ECtHR required member states to protect against.

Further, the GRA’s explanatory notes to Section 9 even state as an example that a GRC holder having the female acquired gender would be entitled to protection as a woman under EA’s predecessor, Sex Discrimination Act 1975 (SDA). The SDA defines ‘woman’ as including a female of any age, while the EA defines it as meaning a female of any age, which some argue narrows the definition from an inclusive to an exhaustive one, thereby excluding GRC holders. However, after Section 9(1) GRA, references to man/woman include GRC holders, removing the need for using an inclusive definition.

Second, EA’s provisions reinforce this understanding. In most contexts where it provides permissible exceptions to something that would otherwise amount to sex discrimination, it also provides for an exception to what would otherwise amount to gender reassignment discrimination. For instance, service providers can limit access to single-sex spaces both for individuals of the opposite sex (sex discrimination) and for trans individuals based on their acquired/lived gender (gender reassignment). Similarly, an applicant to the armed forces can be required to be a man and not be transsexual. The gender reassignment exceptions would be rendered superfluous if sex were to already exclude GRC holders (others with protected characteristic of gender reassignment are still legally men until issuance of GRC).

EA’s pregnancy and maternity protections may be an exception as they only recognise discrimination “because of a pregnancy” “against a woman”. The appellants argue, trans men holding GRCs who are physiologically female ought to be covered in the definition of ‘woman’. Conversely, trans women with a GRC who are biologically male and cannot be pregnant ought not to be covered. However, one may argue, as CoS did, that the basis of these protections is the biological capacity for pregnancy, not sex discrimination per se (para 62). It is a separate form of discrimination, as not all women do or can become pregnant and give birth. Given that pregnancy hinges entirely on biology, and unlike other forms of discrimination, there is no comparator, a different, biological understanding of ‘woman’ is justified in this context. Interpreting ‘woman’ in this context to include those who are pregnant, have given birth or are breastfeeding, regardless of their GRC status, does not impact the interpretation of ‘woman’ or ‘female’ elsewhere in the Act.

This interpretation, as CoS explains, is not precluded by principles of statutory interpretation, which allow for context-specific definition of a term without undermining its default meaning in a statute (para 62). However, it does lead to some confusion. Some of this is attributable to poor legislative drafting that has made it difficult to determine parliamentary intention. As CoS acknowledged, the legislature might not have anticipated that a person with an acquired gender of man through a GRC could become pregnant (para 63). Given EA was enacted years after GRA, the parliament ought to have been more careful in its use of terms, and more explicit in its intentions. Instead of tying maternity and pregnancy protections to womanhood, it should have used gender neutral terms such as pregnant/breastfeeding ‘person’.

Still, the lack of any explicit exclusion, and different exceptions of sex and gender reassignment point to parliamentary intention to give effect to Section 9 GRA. Excluding GRC holders from the definition of ‘woman’ under EA would create significant gaps in protection for trans individuals, undermining both GRA’s purpose and EA’s comprehensive anti-discrimination framework. Holding otherwise could also cast doubt on all enactments using gendered terms, significantly undercutting the GRA’s purpose.

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