The gender debate following the decision in For Women Scotland Ltd v The Scottish Ministers

In a recent and divisive ruling the Supreme Court has held that for the purposes of the Equality Act 2010, the definition of sex is binary and refers to an individual’s biological sex at birth.

Under the Equality Act 2010, individuals are protected from discrimination on grounds of “sex” which is one of nine protected characteristics. Similarly, “gender reassignment” is also a characteristic which is afforded protection from discrimination.

The case surrounded a policy to address under-representation of women in public authorities in Scotland. For these purposes it included anybody “living as a woman” where they possessed a Gender Recognition Certificate (GRC). For Women Scotland (FWS) sought to challenge the scope of this policy, claiming it would introduce a new protected characteristic of "legal sex". The Scottish courts dismissed the legal challenge finding that "sex" could have a variable meaning that included where someone held a GRC following gender reassignment.

FWS appealed the decision to the Supreme Court which unanimously upheld the appeal. They determined that when referencing “man”, “woman” or “sex” in the Equality Act, this was a reference to someone’s biological sex. They found that to determine otherwise would render many of the protections in the Equality Act incoherent, and that transgender individuals have adequate protection through the Equality Act as it included gender reassignment as a protected characteristic.

Whilst the judgment was quick to point out that the scope of this decision did relate solely to the interpretation of these words within the Equality Act, and had no bearing on the wider public debate in this area, its impact will still be felt. The issue of access to single-sex services and facilities will need to be analysed in this context. Objective justifications will still be needed to exclude transgender individuals from the same, and advice should always be sought.