For Women Scotland: a legal critique

Introduction

This article critically discusses the judgment in For Women Scotland v Scottish Ministers [2025] UKSC 16. I have tried where possible for it be accessible to non-lawyers and to lawyers of all specialisms. The article is not intended to be comprehensive in its critique of the judgment but focuses on three points:

1. The implications of the Court declining to consider under section 3(1) of the Human Rights Act 1998 whether its interpretation would breach trans people’s Convention rights.
2. The historical context in which the Gender Recognition Act 2004 and Equality Act 2010 were passed, and its significance in understanding Parliament’s intention.
3. The legal framework on providing single-sex and separate-sex services.

I have also written an introduction explaining the background to the case and briefly summarising the judgment, and a conclusion.

In short, I argue that the judgment has jeopardised the UK’s compliance with the European Convention on Human Rights and introduced considerable uncertainty to the interpretation of the Equality Act 2010. The Court’s comments about single-sex spaces appear to place trans people in a worse position than they were even prior to the passage of the Gender Recognition Act 2004. One solution is for Parliament to remedy this state of affairs.

One of the striking features of the judgment in For Women Scotland is that the Court’s reasoning does not address a number of highly significant issues, in particular:

• The human rights consequences of a “biological sex” interpretation;
• The House of Lords’ conclusion in Chief Constable of West Yorkshire v A (No 2) [2004] UKHL 21 that the Sex Discrimination Act 1975 used a trans-inclusive definition of sex;
• The EHRC’s Statutory Code of Practice for Services, Public Functions and Associations, which states as a general rule that services should treat trans people in accordance with the gender in which they present.

This piece considers the significance of those omissions, and whether consideration of the issues above would have affected the Court’s conclusion in the appeal. In the interests of full disclosure, I should state that I was a Judicial Assistant at the Supreme Court from September 2023–August 2024. I am also trans. I had no involvement with the For Women Scotland appeal and write this piece in a personal capacity.

Background to the case

In 2018, the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018. The Act has the important aim of increasing the representation of women on public boards, and sets targets to this effect. The Act initially included a statutory definition of who would be considered a woman which was intentionally broad and trans-inclusive, including trans women who did not have a Gender Recognition Certificate (“a GRC”) under the Gender Recognition Act 2004 (“GRA 2004”). For Women Scotland objected to that definition, and brought a judicial review challenge which was ultimately successful on appeal before the Inner House of the Court of Session. (For information about the Scottish legal system, see this helpful information sheet.) The Inner House held that the statutory definition was unlawful because it involved an area of law which was reserved to the UK Parliament (equal opportunities), about which the Scottish Parliament had no power to pass legislation.

Following the decision, the Scottish Government issued statutory guidance which stated in effect that, for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018, the definition of a “woman” was the same definition as under the Equality Act 2010, and included trans women who had obtained a GRC.

For Women Scotland brought a second judicial review challenging this definition on the basis that it misstated the true legal position because sex under the Equality Act referred to “biological sex”. The second challenge was dismissed by both the Outer House and on appeal to the Inner House of the Court of Session. The opinions of Lady Haldane (at first instance) and Lady Dorrian (on appeal) can be found on the Scottish Courts and Tribunals Service website. Both Houses held that when Parliament passed the Equality Act 2010, it intended that references to a woman would include trans women with a GRC, and references to a man would include trans men with a GRC.

The Supreme Court’s decision

The Supreme Court agreed with For Women Scotland’s interpretation of the meaning of sex, man and woman in the Equality Act and allowed its appeal.

The case turned on the interaction between section 9 of the Gender Recognition Act 2004 (“GRA 2004”), and the Equality Act 2010. Section 9 of the GRA 2004 provides that:

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.

Section 9(1) set out the broad scope of the effect of having a Gender Recognition Certificate: ie that it changes a person’s gender for all purposes (and as noted by the Supreme Court in R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56 at para 52, the terms ‘sex’ and ‘gender’ are used interchangeably across the statute book). Section 9(2) explains that all previous and future enactments are to be interpreted as subject to rule in section 9(1). Section 9(3) contains the exception to that rule: relevantly, it describes the rule as being “subject to… any other enactment” (such as an Act of Parliament).

The question for the Court was essentially: (1) What is the correct test to apply when considering whether other legislation disapplies the rule in section 9(1) of the Gender Recognition Act 2010? And (2) does the Equality Act 2010 meet that test?

The judgment is long, but the reasoning of the Court can be summarised briefly.

1. The Court held that the exception in section 9(3) of the GRA 2004 does not require the other enactment to expressly disapply the rule in section 9(1). It is also not appropriate to apply the test of necessary implication (a strict legal test with a high threshold discussed at para 101 of the judgment). Rather, the exception in section 9(3) will also apply where the “terms, context and purpose” of the enactment show that it does, “because of a clear incompatibility” or because the provisions of the other enactment “are rendered incoherent or unworkable by the application of the rule in section 9(1)” (para 156).
2. While the Equality Act 2010 does not expressly disapply the rule in section 9(1), having undertaken what the Court describes as a “careful” consideration of a number of sex-related provisions in the Equality Act 2010, it concluded that the Act would be “incoherent and unworkable” if the rule in section 9(1) GRA 2004 were applied (para 264).
3. Accordingly, the exception in section 9(3) of the GRA 2004 applied, and the terms sex, woman and man in the Equality Act 2010 mean “biological sex”, “biological woman” and “biological man”.

For these reasons, the Court held that a trans woman with a GRC is not female within the meaning of the Equality Act 2010, and the Scottish statutory guidance was incorrect to state otherwise.

The Court did not consider its interpretive duty under section 3(1) of the Human Rights Act 1998

Section 3(1) of the Human Rights Act 1998 (“HRA 1998”) provides that:

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

Section 6(1) of the HRA 1998 provides that:

It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

The definition of a public authority includes courts and tribunals. The “Convention” refers to the European Convention on Human Rights (ECHR), and the right which is most commonly engaged in the context of trans rights is article 8, which is the right to respect for private and family life. Section 3(1) places a strong duty on courts when they interpret legislation which engages human rights issues. In Re United Nations Convention on the Rights of the Child (Incorporation) (Scotland) Bill [2021] UKSC 42, Lord Reed discussed the duty at paras 25 and 26:

1. 25. Section 3 of the Human Rights Act was interpreted in Ghaidan v Godin-Mendoza as imposing a remarkably powerful interpretative obligation, which goes well beyond the normal canons of statutory construction. The nature of the obligation was explained by Lord Nicholls of Birkenhead at para 30:

‘the interpretative obligation decreed by section 3 is of an unusual and far-reaching character. Section 3 may require a court to depart from the unambiguous meaning the legislation would otherwise bear. In the ordinary course the interpretation of legislation involves seeking the intention reasonably to be attributed to Parliament in using the language in question. Section 3 may require the court to depart from this legislative intention, that is, depart from the intention of the Parliament which enacted the legislation.’

Lord Nicholls added at para 32:

‘the mere fact the language under consideration is inconsistent with a Convention-compliant meaning does not of itself make a Convention-compliant interpretation under section 3 impossible. Section 3 enables language to be interpreted restrictively or expansively. But section 3 goes further than this. It is also apt to require a court to read in words which change the meaning of the enacted legislation, so as to make it Convention-compliant. In other words, the intention of Parliament in enacting section 3 was that, to an extent bounded only by what is “possible”, a court can modify the meaning, and hence the effect, of primary and secondary legislation.’

1. 26. The House of Lords accordingly held that section 3 required, where necessary, that the courts, and other public authorities, should give to provisions in statutes, including statutes enacted subsequent to the Human Rights Act, a meaning and effect that conflicted with the legislative intention of the Parliaments enacting those statutes. …”

Under the interpretive duty, Parliament has entrusted the Courts with an important responsibility to safeguard human rights and avoid the UK breaching its international obligations as a signatory to the Convention. If it is still not possible to interpret legislation in a way which gives effect to Convention rights under a section 3(1) reading, the Supreme Court has the power to make a declaration of incompatibility under section 4 of the HRA 1998. It is then ultimately Parliament’s responsibility to rectify the issue.

The duty under section 3(1) HRA 1998 is familiar to all law students. It is of fundamental importance to the UK’s constitutional framework in the absence of anything like a codified constitution.

The Supreme Court concluded that on conventional interpretive principles, “sex” in the Equality Act 2010 means “biological sex”. It did not consider whether its “biological sex” interpretation would be consistent with trans people’s human rights under the ECHR. There were strong arguments put before the Court that it would not be, and these were the focus of Amnesty International UK’s submissions, who were given permission to intervene in the case. Those submissions are acknowledged in a single sentence at para 34 (“The court also benefited from written interventions by Amnesty International UK, which submits that human rights principles demonstrate beyond doubt that the interpretation of the Scottish courts is correct.”). The submissions do not appear to be addressed in form or in substance anywhere in the judgment. The judgment does not even acknowledge that the failure of discrimination law to treat trans people as their identified gender might engage Article 8 of the ECHR. In short, it is silent on the question.

Those who are interested in Amnesty’s submissions can read them on their website, but in summary, the submissions make the following points:

• In Goodwin v UK (2002) 35 EHRR 18, the European Court of Human Rights (“ECtHR”) held that the UK had breached its positive obligation under Article 8 to ensure respect of the applicant’s private life by failing to recognise her in her acquired gender. As is well-known, this decision led to the enactment of the GRA 2004. The case was not just about the right to marry, but that across multiple dimensions of interaction in life Ms Goodwin was subjected to discriminatory and humiliating treatment. The ECtHR stated that “the unsatisfactory situation in which post-operative trans [persons] live in an intermediate zone [as] not quite one gender or the other is no longer sustainable.” In Goodwin at paras 82 and 100, the ECtHR held that biological factors alone could not be decisive in denying legal recognition to trans people.

• The ECtHR has held that “gender identification” falls within the sphere protected by Article 8, and that the “very essence of the Convention being respect for human dignity and human freedom, protection is given to the right of trans [persons] to personal development and to physical and moral security” (Van Kück v Germany (2003) 37 EHRR 51 (at para 18).

• The comments in Goodwin were about trans people who had had gender reassignment surgery, but subsequent case law confirmed that the protection extends to all trans people regardless of whether they have undergone surgery. In AP, Garçon and Nicot v France (unreported, 6 April 2017), the ECtHR stated that despite the fact that previous judgments had focussed on the trans people who had had surgery, It could not, however, “be inferred from this that the issue of legal recognition of the gender identity of transgender persons who have not undergone gender reassignment treatment approved by the authorities, or who do not wish to undergo such treatment, does not come within the scope of application of Article 8 of the Convention” (at para 94). Rather, “the right to respect for private life under Article 8 of the Convention applies fully to gender identity, as a component of personal identity. This holds true for all individuals” (at para 95). From the outset, in passing the GRA 2004 the UK chose not to make surgery or any physiological transition a condition of gender recognition.

• Post-Goodwin, the ECtHR has continued to emphasise the importance of consistency and coherence in domestic law when determining a state’s obligations under article 8, with the “impact on the applicant of a discordance between the social reality and the law, the coherence of the administrative and legal practices within the domestic system being regarded as an important factor in the assessment carried out under [Article 8]”, see Hämäläinen v Finland (2014) 37 BHRC 55 at para 66.

Amnesty’s submissions on ECHR rights concluded as follows:

23. As set out above, the fundamental purpose of section 9 GRA 2004 was to give legal recognition to trans people pursuant to the body of human rights case law, and the underlying values of human dignity and personal autonomy as well as legal and administrative coherence. In AIUK’s submission, it is inimical to this purpose to classify a person with a GRC other than in accordance with their legally acquired gender for the purposes of sex discrimination legislation.
24. To do so would be to consign such persons to an “intermediate zone [that] is not quite one gender or another”. It would also be productive of deep internal inconsistency within domestic law lacking any objective justification: on the one hand, broad legal effect is given to acquired gender for “all purposes” (section 9 GRA 2004), but on the other, this is denied in respect of the fundamental matter of legal protection from sex discrimination in the important spheres of human interaction governed by Parts 3-7 of the EA 2010 (namely, services and public functions, work, education, and associations). Indeed, this would mean that Ms. Goodwin could still be treated as a man before an Employment Tribunal in the very same way she complained about in her ECtHR application ([15]). It would also serve to perpetuate the indignity, humiliation and insecurity of trans persons within everyday life which Goodwin required Member States to take action to redress.

The Supreme Court therefore was presented with strong argument grounded in the case law of the ECtHR that a trans-exclusionary interpretation of sex would breach the Article 8 rights of trans people. In those circumstances, it should have considered whether a section 3(1) reading was necessary to avoid breaching the human rights of trans people. It did not do so. Unlike Sex Matters, whose submissions in favour of the “biological sex” interpretation are singled out for praise in the judgment (at para 35), Amnesty International was not given permission to make oral argument before the Court. Like the Court’s decision to refuse the application for permission to intervene by Victoria McCloud and Stephen Whittle, it is not clear what the Court’s rationale behind its differential approach to oral submissions was. Nevertheless, Amnesty’s written submissions were squarely before the Court and deserved careful consideration.

The duties under section 3(1) and section 6 HRA 1998 are of constitutional significance. It is unclear why the Court did not appear to consider its responsibilities under those sections in how it decided this case.

The absence of reference to section 3(1) HRA 1998 is marked in the Court’s rejection of the variable definition approach, according to which references to ‘sex’ mean different things in different sections of the Act (judgment at paras 189–197). One of the problems the Court identified for the “certificated sex” interpretation is that the Equality Act 2010’s protections about pregnancy and maternity discrimination expressly apply to women. Trans men with a GRC may become pregnant, give birth and/or breastfeed, and a “certificated sex” interpretation would mean that they could be prevented from relying on the relevant anti-discrimination protections. The Court did not consider whether this problem could have been overcome by section 6 of the Interpretation Act 1978, which states that words importing the feminine gender include the masculine, unless a contrary intention appears.

The Inner House had reached the conclusion that the references to woman in the pregnancy and maternity provisions should include a trans man with a GRC because of the provisions’ particular biological context, but that the remainder of the Act dealt with sex in accordance with section 9(1) of the GRA 2004. The Supreme Court criticises this variable definition approach at paras 189–197 of its judgment. At para 195, the Court held that the Scottish Government’s “bare assertion that a variable definition is ‘not impermissible as a matter of statutory construction’ falls far short of providing any compelling basis for concluding that a variable definition was intended in section 212(1) or is required.” However, the strength of the interpretive obligation under section 3(1) HRA 1998 is such that even a statutory interpretation which is merely “permissible”, but not compelling, is required if that interpretation is necessary to avoid a construction that is incompatible with Convention rights.

The decision not to address section 3(1) HRA 1998 also causes uncertainty in the interpretation of the effects of the judgment. The Court’s decision appears to authorise a trans-exclusionary interpretation of the Equality Act 2010, in circumstances where the Court has not considered whether following that interpretation will lead to human rights breaches. As noted above, under section 6(1) HRA 1998 it is unlawful for public authorities to act in a way which is incompatible with a Convention right, subject to the defences under section 6(2), which provides that:

(2) Subsection (1) does not apply to an act if—

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

At first blush there will be apparent difficulties for public bodies seeking to rely on those defences: section 6(2)(a) may not apply in the context of the Equality Act 2010 exemptions, because organisations are not generally required by the Act to rely on the exemptions, and section 6(2)(b) presupposes that the legislation cannot be read or given effect in a way which is compatible with Convention rights, the question which the Supreme Court has not considered. The courts deciding these cases in subsequent litigation will of course remain subject to their own duties under sections 3 and 6(1) HRA 1998. Public bodies will now need to take advice before proceeding with trans-exclusionary policies, with full consideration of the human rights implications of such policies. There is no doubt that these issues will continue to be litigated, with human rights at the front and centre.

Parliament’s intention: the historical context of the GRA 2004 and the Equality Act 2010

In this section, I focus on two significant problems with the Court’s views of the historical context in which the GRA 2004 and the Equality Act 2010 were passed:

1. The judgment overlooks the House of Lords’ conclusions on the meaning of sex under the SDA 1975 in the case of Chief Constable of West Yorkshire v A (No 2) [2004] UKHL 21.
2. The explanatory notes to the Gender Recognition Bill and the statements made to Parliament by the minister sponsoring the Bill shows that section 9(1) GRA 2004 was intended to affect the definition of sex in discrimination law.

To summarise the legislative history in very superficial terms, the key dates to note:

• 1975: Sex Discrimination Act 1975 is passed.
• 2004: Gender Recognition Act 2004 is passed.
• 2010: Equality Act 2010 is passed.

It is significant that the Supreme Court held that the definition of sex has always been “biological”, including under the Sex Discrimination Act 1975 (“SDA 1975”), rather than holding that this approach changed with the passage of the Equality Act 2010: see the judgment at para 265(vi).

Chief Constable of West Yorkshire v A (No 2)

In the case of Chief Constable of West Yorkshire v A (No 2) [2004] UKHL 21, the House of Lords had already considered the question of how trans people’s sex should be interpreted under the SDA 1975. That case concerned how trans people’s sex should be categorised for the purposes of conducting searches under the Police and Criminal Evidence Act 1984. Importantly for the case of For Women Scotland, the judgments contain considerable discussion about how the Equal Treatment Directive (“the Directive”) required trans people to be treated in UK discrimination law: as a member of the EU, the UK was bound to give effect to the Directive, and the European Court of Justice had given guidance about the status of trans people in sex discrimination law in the landmark case of P v S (Case C-13/94) [1996] ICR 795.

In Chief Constable v A, Baroness Hale, giving a judgment with which Lord Steyn and Lord Carswell agreed, stated at para 56:

It might be possible to regard [P v S] as simply a decision that discrimination on grounds of transsexuality is discrimination “on grounds of sex” for the purpose of the Equal Treatment Directive. But there are many reasons to think that it is not so simple. The purpose of the Directive, set out in article 1(1), is to “put into effect in the member states the principle of equal treatment for men and women …” The opinion of Advocate General Tesauro, at p 810, para 22, was emphatic that “trans [persons] certainly do not constitute a third sex, so it should be considered as a matter of principle that they are covered by the Directive (76/207/EEC), having regard also to the above-mentioned recognition of their right to a sexual identity”. The “right to a sexual identity” referred to is clearly the right to the identity of a man or a woman rather than of some “third sex”. Equally clearly it is a right to the identity of the sex into which the trans person has changed or is changing. In sex discrimination cases it is necessary to compare the applicant’s treatment with that afforded to a member of the opposite sex. In gender reassignment cases it must be necessary to compare the applicant’s treatment with that afforded to a member of the sex to which he or she used to belong. Hence the Court of Justice observed, at p 814, para 21, that the trans [person] “is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment”. Thus, for the purposes of discrimination between men and women in the fields covered by the Directive, a trans person is to be regarded as having the sexual identity of the gender to which he or she has been reassigned. (emphasis added).

Lord Bingham, in a separate judgment, stated at para 11:

“…In my opinion, effect can be given to the clear thrust of Community law only by reading “the same sex” in section 54(9) of the 1984 Act, and “woman”, “man” and “men” in sections 1, 2, 6 and 7 of the [SDA 1975] as referring to the acquired gender of a post-operative transsexual who is visually and for all practical purposes indistinguishable from non-transsexual members of that gender.”

While the case is cited, the Supreme Court’s judgment does not engage with these significant passages. They were brought to the Court’s attention in Amnesty International’s written submissions. However, the Court clearly reached a different conclusion on the interpretation of sex under the SDA 1975, and the passages in For Women Scotland which explain its conclusion about the SDA 1975 do not answer the House of Lords’ reasoning in Chief Constable v A , which is that the Equal Treatment Directive itself required sex to be given a trans-inclusive meaning within the SDA 1975.

Previous decisions of the House of Lords are normally binding upon the Supreme Court. It is clear that Supreme Court did not hold that the decision in Chief Constable v A had been wrongly decided, which would have required a panel of seven justices and a consideration of the Practice Statement 1966. Instead of providing clarity on the point, the judgment does not address this apparent inconsistency with a previous decision of the House of Lords. That is regrettable in view of the importance of legal certainty.

Passing the Gender Recognition Act 2004

Parliament intended that section 9(1) of the GRA 2004 would include the definition of sex under the SDA 1975. This is clear firstly because, as noted in the judgment, the GRA 2004 was passed in response after the ECtHR had found the UK was breaching trans people’s human rights in Goodwin v UK. As discussed above, that case emphasised the importance of states ensuring that trans people’s genders were consistently respected and trans people should not be relegated to an “intermediate zone”. However, the Explanatory Notes to the Bill, and the parliamentary record also provide important indications of Parliament’s intent.

The Explanatory Notes to the Bill

The Explanatory Notes to the Gender Recognition Bill said this about the eventual section 9(1):

27. Subsection (1) states the fundamental proposition that once a full gender recognition certificate is issued to an applicant, the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes. She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975; and she would be considered to be female for the purposes of section 11(c) of the Matrimonial Causes Act 1973, and so able to contract a valid marriage with a man.” (emphasis added)

The Courts have long held that the Explanatory Notes to a Bill can be an aid to interpreting an Act of Parliament. The Court’s general approach is summarised in para 9 of the judgment: in short, they can cast light on the meaning of particular statutory provisions, but as an external aid to the legislation, they cannot displace the meaning conveyed by the words of a statute that, after consideration of its context, are clear and unambiguous and which do not produce absurdity.

There can be no suggestion the wording of the GRA 2004 clearly and unambiguously shows that it was intended not to impact the definition of sex under the SDA 1975.

The reason why Explanatory Notes to a Bill can be significant in statutory interpretation is because they are provided by the Government to MPs and peers to help them understand the draft legislation as the Bill is debated and voted upon by Parliament. The Court deals with the issue at para 81 of the judgment. The paragraph contains a confusing typing error suggesting that the Explanatory Notes refer to a “trans man with a GRC” rather than a “trans woman with a GRC”. The Court then states the Notes are a “good illustration of why the use to which the courts should put explanatory notes is limited to the context of the legislation and the mischief to which its provisions are aimed”, and notes that there is no evidence that the Government had undertaken any detailed analysis of the effect on the SDA 1975 as the Court has done in its judgment.

It is not clear why the Court considered that they would be using the Explanatory Notes to the Bill for anything other than identifying the mischief to which section 9(1) was aimed. The Notes show that the section aimed, among other things, to resolve definitively any lack of clarity about how trans people’s legal sex should be treated for the purposes of sex discrimination law. As had been noted by Baroness Hale in the Chief Constable v A case at para 60, while the Equal Treatment Directive required trans people to be treated as their identified gender under sex discrimination law after a certain point in transition, there were difficult questions of “demarcation”, and the Gender Recognition Bill was being passed to resolve those questions.

The comments of the Minister in Parliament

When the Gender Recognition Bill was introduced into the House of Lords, Lord Filkin, then the Under-Secretary of State in the Department of Constitutional Affairs, stated that:

On the important issue of discrimination, Clause 9 makes it clear that a transsexual person would have protection under the Sex Discrimination Act as a person of the acquired sex or gender. Once recognition has been granted, they will be able to claim the rights appropriate to that gender. (see Hansard, vol 655, col 1322 (18 December 2003))

In accordance with the rule from the case of Pepper v Hart [1993] AC 593, courts are permitted to take into account parliamentary statements provided that (a) the legislation is ambiguous or obscure, or leads to an absurdity; (b) the material relied on consists of one or more statements by a minister or other promoter of the Bill together if necessary with such other parliamentary material as is necessary to understand such statements and their effect; (c) the statements relied on are clear.

The statement was brought to the Court’s attention by Amnesty International in their written submissions. It is not addressed in the Court’s judgment.

In passing the GRA 2004, Parliament seems to have intended that a trans person’s sex under sex discrimination law would be determined by whether they had a GRC or not. The significance of that conclusion is that there is nothing in the Equality Act 2010 that would suggest it was passed to change the prior legal position under the SDA 1975, as noted by the Court in para 164.

The Court’s understanding of the operation of the law on single-sex services

I do not attempt to provide a paragraph-by-paragraph critique the Court’s survey of the different sections and Schedules of the Equality Act 2010, although in future litigation careful thought will need to be given as to whether any of these are obiter dicta (ie statements about the law which are not essential to the Court’s reasoning for deciding the case in hand, and therefore not strictly binding on lower courts.) As with the GRA 2004, the Court’s reading of the Equality Act 2010 appears to be at odds with the Explanatory Notes, which state for example that the gender reassignment exceptions to the single-sex services exemptions, which require service-providers to show that exclusion is a proportionate means of achieving a legitimate aim, apply when deciding to exclude trans people from services of their identified gender. (The Court recites the example from the Explanatory Notes of a women’s counselling session excluding a trans woman at para 221 but does not go on to address how this example can be reconciled with the Court’s analysis.)

However, one particular point deserves further scrutiny. The Court in several places justifies the “biological sex” interpretation of the Equality Act 2010 because a “certificated sex” interpretation would require service-providers to treat trans women with and without a GRC (or trans men with or without a GRC) differently, and this would be unworkable in practice because the two groups are often visually or outwardly indistinguishable (see e.g. paras 203, 213, 217, 224). This reasoning faces two objections that do not seem to have been explored.

Firstly, it could equally be said that trans men are often not visually or outwardly distinguishable from cis (ie non-trans) men, and trans women are often not visually or outwardly distinguishable from cis women. Accordingly, leaving aside any human rights considerations, the same concerns about “unworkability” could be levelled at the “biological sex” interpretation. This has been apparent in public discussions of the possible consequences of the judgment, and the risks that it will lead to increased instances of people being challenged about their gender when using single-sex services.

Secondly, it had previously been understood that service providers were entitled to (and are generally expected to) treat trans people in accordance with the gender in which they present whether or not they have a GRC. This is reflected in the EHRC’s statutory code of practice on services, public functions and associations, and was discussed in the case of R (Authentic Equity Alliance CIC) v Equality and Human Rights Commission [2021] EWHC 1623 (Admin), a case which appears not to have been cited to the Court, and is not discussed in the judgment.

AEA v EHRC

In AEA v EHRC, the Authentic Equity Alliance had sought permission for a judicial review of the EHRC’s statutory code of practice on services, public functions and associations. The EHRC has a power to issue statutory codes of practice under section 14(1) of the Equality Act 2006. Under section 15(4) of the Equality Act 2006, courts and tribunals (including the Supreme Court) are required to take into account a relevant code of practice in any case in which it appears to the court or tribunal to be relevant.

The provisions of the statutory code which the AEA objected to included paragraphs 13.57–13.60, which read as follows (I have kept the dated use of the word “transsexual”):

13.57

If a service provider provides single- or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present. However, the Act does permit the service provider to provide a different service or exclude a person from the service who is proposing to undergo, is undergoing or who has undergone gender reassignment. This will only be lawful where the exclusion is a proportionate means of achieving a legitimate.

13.58

The intention is to ensure that the transsexual person is treated in a way that best meets their needs. Service providers need to be aware that transsexual people may need access to services relating to their birth sex which are otherwise provided only to people of that sex. For example, a transsexual man may need access to breast screening or gynaecological services. In order to protect the privacy of all users, it is recommended that the service provider should discuss with any transsexual service users the best way to enable them to have access to the service.

Example:

A clothes shop has separate changing areas for male and female customers to try on garments in cubicles. The shop concludes that it would not be appropriate or necessary to exclude a transsexual woman from the female changing room as privacy and decency of all users can be assured by the provision of separate cubicles.

13.59

Service providers should be aware that where a transsexual person is visually and for all practical purposes indistinguishable from a non-transsexual person of that gender, they should normally be treated according to their acquired gender, unless there are strong reasons to the contrary.

13.60

As stated at the beginning of this chapter, any exception to the prohibition of discrimination must be applied as restrictively as possible and the denial of a service to a transsexual person should only occur in exceptional circumstances. A service provider can have a policy on provision of the service to transsexual users but should apply this policy on a case-by-case basis in order to determine whether the exclusion of a transsexual person is proportionate in the individual circumstances. Service providers will need to balance the need of the transsexual person for the service and the detriment to them if they are denied access, against the needs of other service users and any detriment that may affect them if the transsexual person has access to the service. To do this will often require discussion with service users (maintaining confidentiality for the transsexual service user). Care should be taken in each case to avoid a decision based on ignorance or prejudice. Also, the provider will need to show that a less discriminatory way to achieve the objective was not available.

Mr Justice Henshaw refused AEA permission to bring a claim for judicial review, on the basis that it was not arguable that the paragraphs quoted above contained any legal error. At para 8, the Judge held that trans women who do not have a GRC cannot be excluded from single-sex services simply on the basis that they are legally male: it was not difficult to see how the exclusion or different treatment of a trans women without a GRC in relation to a single-sex service would place trans persons at a particular disadvantage compared to others, and so would amount to a provision, criterion or practice which was indirectly discriminatory on grounds of gender reassignment. That would only be lawful if it were justified in accordance with section 19(2)(d) and Schedule 3, para 28 of the Equality Act 2010 (ie if it were a proportionate means of achieving a legitimate aim). This process of course requires a careful consideration of the context of the claim, and a balancing of the different rights and interests involved.

At para 15, the Judge dealt with another of the AEA’s arguments in favour of a trans-exclusionary reading of the Equality Act 2010. The Judge rejected the argument that if it is proportionate for a service to exclude men, it must also follow that it is proportionate to exclude trans women who do not have a GRC (and are therefore also “legally male”):

…the claimant’s approach would place transsexual women without a GRC in the same position for these purposes as all other birth males. That is clearly incompatible with the tenor of the Act, which plainly sets out distinct provisions in s 19 (as applied to gender reassignment) and in Schedule 3 para [28], which apply to the protected characteristic of gender reassignment: over and above, and separately from, those in paras 26 and 27 of Schedule 3 relating to sex discrimination.

Unlike in AEA v EHRC, the Supreme Court in For Women Scotland appears to have been operating under the erroneous understanding that, on a certificated sex reading of the Equality Act 2010, single-sex services were as a matter of law open to trans people with a GRC and closed to trans people without a GRC. This is shown by the last sentence of para 217 of the judgment (“the Scottish Ministers do not suggest that a trans woman without a GRC is legally entitled to [use female-only facilities]”) and the repeated references to the indistinguishability of trans people with and without a GRC cited above. That conclusion is questionable. Under the interpretation followed in AEA v EHRC, whether a trans person had a GRC or not, service providers considering exclusion would have to apply the same legal test under the Equality Act 2010, Schedule 3, paragraph 28, a point reflected in the Statutory Code of Practice at para 13.57.

The EHRC Statutory Code of Practice

The EHRC’s written submissions do not refer to AEA nor to the passage cited above from its Statutory Code of Practice. The absence of reference to the Statutory Code of Practice is particularly significant because of the statutory duty imposed upon the Supreme Court by section 15(4) of the Equality Act 2006.

If the EHRC had drawn the Court’s attention to those paragraphs of its statutory guidance, the Court may not have reached the view that it did at para 203 about the problems of not being able to distinguish between trans people with or without a GRC. The EHRC would have been able to explain that, for almost 15 years, it had in effect been advising service-providers that they should generally treat trans people in accordance with the gender role they present regardless of whether they have a GRC. It is also of course significant that Statutory Code of Practice was laid before Parliament, which did not object to the passages above, or the EHRC’s interpretation of single-sex services provisions.

Croft v Royal Mail Group plc

Croft v Royal Mail Group plc [2003] EWCA Civ 1045 is a case about trans people’s right to use toilets in line with their gender identity under equality law. It is relevant to the Court’s analysis of single- and separate-sex services, but in the judgment features only as an oblique reference in a discussion about discrimination comparators at para 134.

Croft was decided in 2003 before the GRA was enacted. A trans woman brought a claim for discrimination because, after transitioning at work, she had been required to use a disabled toilet instead of the women’s toilets. The employer had said that she could only use the women’s toilets once she had surgery. The Court of Appeal rejected the argument that the employer could escape liability on the basis that the Claimant was legally male. It held that a permanent refusal to permit a trans woman from using female facilities could be an act of discrimination even if she had not undergone surgery. The moment when a trans employee would become entitled to use the toilets of their identified gender would depend on all the circumstances but in this case (where the employee in question had worked alongside female colleagues for a long time before transitioning) there was no unlawful discrimination.

The case is significant in establishing that as early as 2003, before trans people could obtain legal gender recognition, they still had a right under equality law to use toilets in accordance with their gender identity after reaching a certain stage in their transition (which was not to be determined by surgical interventions). Prior to For Women Scotland, it had been thought that the Court of Appeal’s approach in Croft of requiring trans employees to use the disabled toilets for a period of time after they transitioned at work was (to use a euphemism) “of its time”. In today’s world, the approach would seem unnecessary and stigmatising and it was thought that courts and tribunals were unlikely to tolerate such conduct by employers: see for example, Taylor v Jaguar Land Rover (2020, online), where the Employment Tribunal found that the act of a manager telling a trans employee to use the disabled toilets was direct gender reassignment discrimination.

However, in appearing to hold that the Equality Act 2010 permits the exclusion of all trans men from men’s toilets, and of all trans women from women’s toilets, the Supreme Court appears to have turned the clock back even further than the law as understood prior to enactment of the GRA 2004, where it had been recognised that equality law (at least in the employment context) required trans people to be permitted to use toilets in line with their gender identity once they had reached a certain stage in their transition.

Given that Croft had been decided well before the Equality Act 2010, if Parliament’s intent in passing the Equality Act 2010 had been to reverse the judgment, it is surprising that, applying ordinary interpretive principles, it did not make its intention express.

Conclusion

The Supreme Court’s decision in For Women Scotland has significant and surprising omissions. It is not clear whether the Court would have reached a different conclusion if it had considered the human rights implications of its interpretation, the House of Lords’ decision in A v Chief Constable or the EHRC Statutory Code of Practice for Services. The judgment has introduced great uncertainty into the legal regime by appearing to endorse trans-exclusionary practices while leaving the human rights implications of such practices at large. Until the legislative situation is rectified, or clarified by further litigation, we are likely to see human rights breaches against trans people in the UK.

One solution would be for Parliament to act to correct the legal effect of the decision in For Women Scotland and return the legal position as understood prior to the judgment. This would likely involve passing amendments to the Equality Act 2010 to state that references to men and women include trans men and trans women who have been issued a full GRC, and amendments to the single-sex services exemptions to clarify that providing such services on a trans-inclusive basis will not mean that they cease to be single-sex services. Parliament could also take the opportunity to clarify that the Act’s provisions on pregnancy and maternity apply to trans men who have obtained a GRC. Failing that, further litigation is likely.

• This article originally appeared on the Trans Legal Project blog.