Ruling on the determination of sex

Supreme Court ruling on the determination of sex within the Equality Act 2010

The recent Supreme Court ruling of For Women Scotland (FWS) v The Scottish Ministers has confirmed the meaning of ‘women’, ‘men’ and ‘sex’ in the context of the Equality Act (EQA) 2010.

The Supreme Court has ruled that the term “sex” in the Equality Act 2010 refers to biological sex, meaning male or female, rather than gender identity.

This means that a trans woman, even with a Gender Recognition Certificate, is legally considered a biological male under the Act, and a trans man is legally considered a biological female.

The Supreme Court reasoned that the definitions under the EQA 2010 were taken from existing discrimination legislation, which referred to the biological meaning of these terms.

As a result of the Supreme Court’s decision, the Equality and Human Rights Commission (EHRC) are updating its guidance for employers.

However, in the meantime, the EHRC have specified that workplaces must ensure they provide single-sex toilets, as well as changing and washing facilities, where needed.

However, the ruling does not remove legal protections for trans people, who are still protected from discrimination under the Act’s gender reassignment provisions.