The UK Supreme Court Judgment Has Brought Much Needed Confusion: Why For Women Scotland Did Not Change UK Discrimination Law – by George Letsas

What did the Supreme Court decide in For Women Scotland? The case concerned quotas in the representation of women in public boards in Scotland, under the Gender Representation on Public Boards (Scotland) Act 2018. It was brought on appeal by For Women Scotland Ltd, a feminist organisation campaigning for women’s and children’s rights. The question, for the Court, was whether the Scottish quotas should include trans women with a Gender Recognition Certificate (GRC), as provided for by the Gender Recognition Act 2004. To answer this question the Court turned to the interpretation of the Equality Act 2010, which is a consolidating act on matters of equality and non-discrimination. The Court found for the appellants, ruling that the quotas in the Scottish Act do not include trans women with a GRC.

The judgment is being interpreted to have decided that transgender persons, with or without a GRC, must now be excluded from all, or most, single-sex and separate services. Indeed, the Equality and Human Rights Commission (EHRC) recently issued an updated guidance, claiming that the Court’s judgment has far-reaching implications for workplaces, services (hospitals, shops, restaurants), sporting bodies, schools, and associations. The Commission claims, for instance, that trans women should not be permitted to use women’s facilities and trans men should not be permitted to use the men’s facilities.

In this blog post, I argue that this wide interpretation, which inevitably and directly affects persons who have planned their whole life on the assumption that they have certain rights, is mistaken. The Court, did not, and could not, have decided that exclusion of transgender persons from single-sex provisions is never discriminatory. This mistaken reading of the judgment is seemingly premised on the proposition, which the Court affirmed, that ‘sex’ in the Equality Act means ‘biological sex’. But, as I will aim to show, this proposition – even if correct – does not support the conclusion that excluding trans persons from single-sex measures is always lawful. The mistaken interpretation seeks to frame the issue as a semantic one, about what the word ‘sex’ means. It is encouraged by the Court’s own focus on the literal meaning of the word ‘sex’ in the Equality Act. But the issue is not a semantic one. Even if ‘sex’ means ‘biological sex’, exclusions of trans persons (with or without a GRC) from a measure can only be lawful if they are legitimate. Just because a literal attempt to replace the word ‘sex’ with ‘certificated sex’ in the Equality Act fails, does not mean that the general legal protection of trans persons against discrimination has radically changed.

It is crucial, for the purposes of my analysis, to address some general philosophical issues regarding discrimination and legal interpretation. I will set aside various technicalities of the EA 2010 that do not bear on my argument. My aim is to approach the matter at the level of legal principle, so as to lay bare what the substantive issues are. Here is a roadmap: I will first explain that accepting that ‘sex’ is ‘biological sex’ does not settle anything with respect to what counts as sex discrimination (section 1). In section 2, I briefly explain that the aim of law is not to define any term, be it a natural kind, or a social kind; rather, it is to protect people’s rights. This is why it is always crucial to distinguish between ‘semantic’ meaning (what words in a statute mean) and ‘legal meaning’ (the effect of an area of law on people’s rights). What matters primarily is legal meaning. Semantic meaning tracks legal meaning, not the other way around. I will then argue that discrimination is a general moral wrong, a malum in se, not a technical legal notion that specific provisions in a statute can shape freely (section 3). I will move on to show that whether UK discrimination excludes transgender persons from single-sex services is not a matter of deciphering Parliament’s intentions, because intentions are on both sides of the argument (section 4). I will here identify two possible interpretations of the Court’s ruling, a narrow one and a wide, radical, one; the radical one, now endorsed by the EHRC, entails a blanket approach to what counts as discrimination. Such an approach is not only in breach of the European Convention on Human Rights (ECHR), but also against Parliament’s own abstract intention to combat sex discrimination.

In the final part (section 5), I turn directly to the reasoning of the Court. I argue that the Court’s finding, that Parliament intended that ‘sex’ in the Equality Act means ‘biological sex’, even if correct, does not entail the radical interpretation that Parliament intended to have a blanket exclusion against trans persons with respect to all single-sex measures. Such a blanket restriction would violate the principle of proportionality, under human rights law, and would be incompatible with Parliament’s clear intention to ban all forms of sex discrimination. It is therefore the narrow interpretation, i.e., that the ruling is confined to quotas in the Scottish public boards with respect to persons holding a GRC, that is to be preferred.  

1. Everyone Can Agree Sex is Biological Sex

Take the Court’s main conclusion in para 265 (xviii) of the judgment:

The meaning of the terms “sex”, “man” and “woman” in the EA 2010 is biological and not certificated sex.

The UK Equality Act (EA) lists ‘sex’ as a protected characteristic (section 11) and prohibits discrimination, both direct and indirect, against a person because of that protected characteristic (sections 13 & 19 EA). So, according to the judgment in Scottish Women, section 11 of the Equality Act, which prohibits discrimination because of sex, must be interpreted to mean ‘biological’ sex. Now, if for a moment we leave aside doctrinal issues, the following should be obvious: ‘sex’ does not have to mean ‘certificated sex’ for transgender persons to be protected under a sex discrimination provision like the one in section 11 of the EA. This is because discrimination against transgender persons (with or without certification) is a form of sex discrimination, understood in a biological sense. A transgender person is a person living under a gender that is not conforming to the sex (male or female) that they were assigned at birth (what the Court calls ‘biological’ sex). When a transgender person is the victim of discrimination, it is in part because of their biological sex: they suffer a disadvantage because they do not wish to live under the gender norms surrounding their biological sex, or they have chosen to change their biological sex legally.

It is important here to consider the issue in general terms and in a way that is accessible to all citizens, whether experts or not. Suppose all we have is a general legislative provision that prohibits sex discrimination, such as the one found in section 11 EA. Even if the proposition that ‘sex’ in that provision means ‘biological sex’ is correct, it does not settle anything with respect to whether separate and single-sex services, should be allocated according to biological sex. For to exclude trans women from a measure for no legitimate reason is as much a case of sex discrimination as to exclude biological women (also referred to as cis-gender women) from that measure. In both cases, the differentiation involves a description that, directly or indirectly, makes reference to biological sex (albeit in different ways). To be sure, there might be legitimate reasons for the law to exclude one group from services aimed at the other, such as in rape crisis centres, in which case no discrimination occurs. It might also be the case, as the Court held, that only biological women should benefit from the Scottish quotas regarding representation of women in public boards, which was the issue in Scottish Women. But this cannot be because ‘sex’ means ‘biological sex’. Rather, it can only be because there is a legitimate reason to have that exclusion. A general prohibition of sex discrimination (again, sex understood biologically) protects everyone, including biological women and trans women.

You might think that this argument is too quick, a sleight of hand. But let’s have a look at the US experience where this argument played a pivotal role. In the judgment of Bostock v Clayton County (2021), delivered by Justice Gorsuch, the US Supreme Court held with a 6-3 majority that the prohibition of sex discrimination in the workplace under Title VII of the Civil Rights Act 1964 includes the prohibition of discrimination against both transgender and homosexual persons. The Civil Rights Act does not list gender, gender reassignment, or sexual orientation, as protected characteristics, and so the question for the US Court was whether sex discrimination encompasses these characteristics. It ruled that it does, while accepting at the very outset, and for the sake of the argument, that the term ‘sex’ in the 1964 statute refers to “status either male or female as determined by reproductive biology”. In other words, the US Supreme Court in Bostock readily accepted in one sentence the same biological definition of sex as the one that the UK Supreme Court reached in Scottish Women after 268 paragraphs. Having accepted this definition, it went on to find that transgender discrimination amounts to sex discrimination. So how come the prohibition of sex discrimination also protects transgender persons, even though ‘sex’ means ‘biological sex’?

The US Supreme Court emphasised that the issue is not what ‘sex’ means, but what the basis is on which a person is discriminated, namely the ‘because of’. Take the case of dismissing an employee because of their transgender status. That dismissal, the US Court explained, is ‘for traits or ac­tions it would not have questioned in members of a different sex’. So, for example, in cases of proven discrimination, if a dismissed transgender woman had been of a different biological sex (i.e., a biological woman), then they would not have been dismissed. And if a dismissed transgender man had been of a different biological sex (e.g., a biological man) then they would not have been dismissed. The grounds of discrimination here involve a description that makes indirect reference to the victim’s biological sex. This is not to say, of course, that transgender persons experience discrimination in the same way as non-transgender persons do. Nor is it to say that the root motivations, biases, and ideologies of those who discriminate against transgender people are necessarily the same as those who discriminate against non-transgender persons. All that is being asserted here is an abstract proposition: but for someone’s biological sex, they would not have been discriminated against.

The US Court rejected the textualist argument that the word ‘sex’ in the Civil Rights Act, enacted in 1964, cannot mean ‘gender,’ or ‘transgender status’. It explained that the plain meaning of ‘sex’, understood biologically, clearly includes the sex that transgender persons were assigned at birth. And when one discriminates against transgender persons, one discriminates in part because of their biological sex. ‘Sex’ does not need to mean ‘gender’ for this to be the case. What the textualist argument really claims, the US Supreme Court explained, is that nobody in 1964 expected that transgender people would be protected under a sex discrimination provision. Yet since what matters for legal interpretation is the ordinary meaning of ‘sex’, which encompasses transgender status, then the argument from expectations is neither here nor there.  

The US Supreme Court further explained that sex discrimination occurs in general where ‘sex plays a necessary and undisguisable role in the decision’. This means that a comparison between the two biological sexes, male and female, is not always necessary. For example, sex discrimination can also occur in cases where both (biological) men and (biological) women are affected equally. Consider a ‘traditional values’ employer who fires female employees for not being feminine enough and fires male employees for not being masculine enough. That employer discriminates against both men and women because of their sex. In other words, the prohibition of sex discrimination, i.e., of discrimination because of sex, is not limited to cases of preferential treatment of one (biological) sex over the other. It is crucial, of course, how we frame the scope of a sex-based description that plays a role in a decision about how to treat a person. But again, the issue is substantive, not semantic. It should, for instance, include treating someone less favourably because they defy sex-based norms or expectations (see the Amicus Curiae Brief submitted by Yale philosophers to the US Supreme Court in the case of United States v Skrmetti). The normative issue is how to define the relevant sex-based description, not whether ‘sex’ means ‘biological sex’.

Similarly, the European Court of Justice in the case of P v S and Cornwall County Council, held that the scope of the prohibition of sex discrimination is not limited to discrimination based on the fact that a person is of one or the other sex. It must extend, it reasoned, to discrimination arising out of gender reassignment because “such discrimination is based, essentially if not exclusively, on the sex of the person concerned”.

Who could disagree with any of this? Of course, American law is not applicable in the UK and one will immediately object that UK discrimination law is more complex and more expansive than in other jurisdictions. But the analysis in Bostock is not jurisdiction-specific: it concerns the moral wrong of sex discrimination, i.e., what it means to wrong someone because of their sex. Surely, if we care at all about the wrong of sex discrimination, then we should reflect in general terms on what it prohibits. And at this level, some things should be uncontroversial for any legal system committed to the value of equality. We should all agree that dismissing employees for being transgender, should be no less prohibited by law than dismissing non-transgender employees for not living up to some gender stereotype. Moreover, we should also agree that, as a matter of logic, both these wrongs are committed on grounds that, directly or indirectly, refer to sex, while accepting that ‘sex’ means biological sex. Finally, we should agree that there might be legitimate reasons to have exclusions from separate or single-sex services based on sex-based descriptions, without such exclusions necessarily amounting to sex discrimination.

A legitimate sex-based exclusion can exclude biological men, biological women, transgender men, transgender women, or a combination of those (and, it should be said, other groups too that are affected by a sex-based description). It all depends on the reason for the exclusion. Such exclusions can in principle be legitimate. Consider cases where there is a genuine occupational requirement. A women’s refuge may legitimately seek to hire a biological woman. A theatre may legitimately seek to hire an actress – either cis-gender or transgender – for a female role. Or consider cases where there is a health reason: a health service may legitimately send invitations for cervical cancer screening only to biological women and transgender men. We might reasonably disagree about which groups fall within which of these legitimate exclusions, but not whether there are any.

In its own judgment, the UK Supreme Court stressed a similar point time and again: both biological women and transgender women are protected from discrimination (see paras 248 to 261). Surely, this is what matters: protecting people from discrimination based on certain characteristics, sex being one of them. So why all this legal drama in the UK, about what ‘sex’ means in the context of the UK Equality Act?

2. The Legal Priority of Normative Questions over Conceptual Questions

This is where the mechanics of UK discrimination law and the text of the Equality Act 2010 and the Gender Recognition Act 2004 are meant to make a difference and complicate matters. I do not think that they do but before I look at those, let me continue with some general jurisprudential remarks that will prove helpful in analysing the judgment.

The Court, following a type of formalism foreign to the common law, approached the issue as being about statutory interpretation and the meaning of the word ‘sex’, ‘man’ and ‘woman’ in the EA 2010. One could well see why the Court might be inclined to do so in this case. But it was rather unfortunate, and complicated matters unnecessarily.  By its very nature, the fundamental aim of discrimination law cannot be that of defining the meaning of a term, let alone a term which relates to people’s identity. If law were to do so, it would violate the fundamental principle of individual autonomy: it is for each person to decide their identity. The law could not, for example, define who counts as say, a Christian or a Muslim, without violating individual autonomy. Law has a practical aim, that of protecting people from discrimination, especially those who are particularly vulnerable to it, such as women and transgender persons.

When law defines some term, such as what is a protected characteristic (e.g., sex or religion), it is because it is useful for the purpose of battling a social harm. Law only aims at settling what counts as discrimination, not which identities are attached to which persons. This is manifested clearly in cases where the law does not require that a person share a protected characteristic (e.g., disability) for that person to be a victim of discrimination based on that characteristic (the so-called ‘discrimination by association’). The law, in other words, does not settle normative questions based on conceptual definitions; rather, it reaches definitions that suit its normative purposes.

This is why lawyers and judges so often say that something counts as a X ‘for the purposes of the law’. For instance, if tax law principles demand so, law can declare that ‘Jaffa cakes’ are biscuits, not cakes (see United Biscuits v Customs and Excise VAT Tribunal 91/160 (1991)). That doesn’t mean that the law is telling biscuits-lovers to start eating Jaffa cakes, any more than the biologist who says that tomatoes are fruits is telling people to stop eating tomatoes as a vegetable. Likewise, a statute that enacts detailed measures for the protection of ‘fish’ does not necessarily mean that it does not apply to whales. ‘Fish’ can legally mean ‘marine wildlife’, so as to include whales, or it may not, depending on law’s aims. Lawyers know that the same thing can be X for the purposes of the law and Y outside the law, or X for the purposes of one area of law and Y for the purposes of another area. Nobody is confused, for example, if the term ‘foreseeability’ has one meaning in tort law and a different meaning in criminal law. This is because it is immediately obvious that the aims of criminal law are different to the aims of tort law.

It is important therefore to distinguish between semantic and legal meaning. Semantic meaning is the meaning of words in a legal text. Legal meaning is the effect that using these words will have on people’s rights and duties. We must first ask what effect on people’s rights is legitimate, given law’s aims (e.g., equality), and then attribute meaning to words in legal texts. Not the other way around (see Nicos Stavropoulos, ‘Words and Obligations’). The Court gave the impression that the legal meaning of what amounts to sex discrimination in UK law tracks the semantic meaning of words in the EA. But statutory interpretation does not work like that. We must first ask when it is legitimate to use sex-based differentiations and when they are discriminatory, i.e., a violation of people’s rights. Only then can we attribute semantic meaning.

3. Discrimination is a Serious Moral Wrong, not a Legal Fiction

Statutory interpretation is not some technical exercise that only expert lawyers can master. It should be premised on arguments whose evaluative basis can be understood and assessed by all citizens, drawing on shared political values, such as the Rule of Law, equality, and rights. When For Women Scotland was handed down, a lot of the media reaction focused on how it involved various technical legal issues in statutory interpretation. Indeed, the public is a bit lost as to what the basis of the ruling was as even legal experts seem to disagree. The BBC reported the case in one way and then amended it and added a correction. This is far from ideal, as a political matter. Discrimination is a serious moral wrong and one that citizens can very well understand, independently of what a statute says. Like censoring free speech, citizens have a clear view of what it means to commit the relevant moral wrong. The law cannot ‘technically’ define discrimination to mean something completely different to the general moral sense that all citizens share. Nor should citizens be prevented from understanding the reasons why something amounts to sex discrimination (or not) in the eyes of the law. Besides, it should be obvious, as explained by the US Supreme Court in its reasoning, that the question of whether it is discriminatory to treat trans persons differently does not turn on a conceptual point about the meaning of the word ‘sex’. Even if sex means ‘biological’ sex, which we can all accept, it is still an open question whether excluding transgender women from a measure, amounts to sex discrimination.

Now, the appellant before the UK Supreme Court argued that transgender women with a Gender Recognition Certificate (GRC) should be excluded from statutory quotas that aim at increasing the representation of women in public boards in Scotland. We do not need to know anything about the Equality Act, to know that the description of the appellant’s proposed exclusion is sex-based. Had the biological sex of the persons who are meant to be excluded from the Scottish quotas been different, i.e., had they been biological women, then these persons would not be excluded. The appellants’ claim, in other words, is premised in part on a sex-based differentiation that is necessarily suspect from the point of view of the morality of anti-discrimination.

Recall that the wrong of discrimination is not a legal fiction; it is not created by law, and it exists independently of it. When the law prohibits sex discrimination in general terms, as the UK Equality Act and the US Civil Rights Act do, it prohibits a moral wrong, a malum in se. It prohibits, in other words, whatever that wrong really is. So, at first instance, and without having to look at the specifics of the Equality Act, we know that the main legal question in Scottish Women is whether the exclusion that the appellants were calling for, amounts to wrongful sex discrimination. The doctrinal vocabulary of how this question is phrased might change within the specifics of the Equality Act and from one jurisdiction to another. But for the average citizen, and lest we are legal formalists, this was the main question before the Court: is it discriminatory to exclude transgender women from separate and single-sex measures? Always? Never? Sometimes?

In allowing the appeal, the Court – logically – rejected the proposition that it is always discriminatory. So, it can only be interpreted to have taken one of the remaining two positions on this question: on the first interpretation, it held that this proposed exclusion is permissible and hence not a case of wrongful discrimination. But other exclusions, such as excluding transgender women from women’s toilets might be discriminatory. On the second, more radical interpretation, it held that – even if discriminatory – there is evidence in the Equality Act that Parliament intended to exclude transgender women from all separate and single-sex measures, regardless of whether it is discriminatory. In the former case, the Court would be asserting that the exclusion of trans women from the Scottish quotas does not amount to sex discrimination because it is, or can be, permissible or proportionate. This first interpretation would not change much in the current state of the law: we already knew that it might be permissible to have such exclusions. According to the second interpretation, however, the Court would be asserting that Parliament intended to condone exclusions affecting transgender persons even if they amount to impermissible sex discrimination. This second interpretation would constitute a substantial change in the interpretation of the law, as transgender women would now have to be excluded from all separate and single-sex services.

These are the only two possibilities. Recall, however, that in neither case could the answer be justified on the basis that ‘sex’ means ‘biological sex’. Even if it does so mean, this does not answer the question of whether it is discriminatory to exclude trans women from the Scottish Act that sets quotas for women’s representation. Again, we do not need to know anything about what the Court said in its judgment to know this. Only relevant considerations can be used to support and justify a proposed legal interpretation of a discrimination provision. If the real question is whether excluding transgender women from single-sex measures amounts to sex discrimination, then we cannot answer it by asserting the proposition that ‘sex’ means ‘biological sex’. This proposition is true but, like the proposition that the earth is round, is not relevant to answering a question about discrimination.

 At best, the Court could reach the conclusion – which we can safely say that it did – that for the purposes of the other Act (i.e., the Gender Representation on Public Boards Act 2018) ‘women’ means only ‘biological women’. But that conclusion cannot itself be based on the conceptual point that sex means biological sex in the context of sex discrimination. That proposition, as explained above, cannot settle the legal question because transgender discrimination is (biological) sex discrimination. The interpretation needs a separate, self-standing, premise.

4. Why Appeal to Parliament’s Intentions Cannot Settle the Issue

Before I turn to the Court’s judgment, I would also like to explain just how radical the second interpretation above is. Discrimination, as a moral wrong, is impermissible differentiation based on protected characteristics, such as sex. Whether a differentiation is discriminatory requires a normative judgment about the aim of the relevant differentiation. In the case of sex discrimination, for instance, one must ask what the reason is for say, advertising a female-only job. It matters little if, in legal terms, we characterise this as the need to ask whether the proposed exclusion is proportionate or whether it serves, say a genuine occupational requirement. And what this second interpretation entails is that Parliament, based on the text of the Equality Act, intended the following: that with respect to transgender people, all exclusions from separate and single-sex services or measures are lawful, regardless of the aim.

The problem here is that single-sex policies pursue several different aims. Sometimes the aim is safety, as in the case of domestic abuse shelters. Sometimes it is fair pay, as in the case of addressing the gender pay gap. Sometimes it is health, as in the case of screening for cervical cancer. Looking at the aim, it is permissible, for instance, to exclude trans women from cervical screening (and to include transgender men). But it might not be permissible to exclude them from legislation about reducing the gender pay gap, if there is evidence that trans women are paid less than men, and at similar levels to biological women. The aim matters crucially since it is constitutive of what counts as sex discrimination. We cannot know whether something counts as sex discrimination unless we assess the reason for the exclusion. In cases of direct discrimination, we can normally presume that the reason is illicit – hence the doctrine that no proportionality analysis is applicable there. But the presumption is epistemic, not constitutive of the wrong of discrimination.

This second interpretation would therefore attribute to Parliament the extreme view that, by passing the EA, it intended to mandate a set of exclusions affecting transgender persons, regardless of their specific aim. It would entail that courts are not meant to scrutinize these exclusions on a case-by-case basis, because Parliament has already decided the issue for them by statute. And here lies the major problem with this interpretation. Such an approach, if attributed to Parliament, would not only be blanket, but also at odds with Parliament’s own general aim of prohibiting sex discrimination. As argued above, a general prohibition against sex discrimination protects everyone, both transgender and non-transgender persons. Unless clearly stated in the Equality Act, it would not be rational to attribute to Parliament the intention of combatting sex discrimination and, at the same time, the intention that, for a subset of exclusions (those affecting transgender people), courts should not inquire into whether they are discriminatory. This is because courts cannot adequately protect people from discrimination unless they look at the aim of a given exclusion. By allowing blanket exclusions, without judicial scrutiny, Parliament would inevitably be condoning at least some cases of discrimination against transgender persons. We would therefore be saying that Parliament both did and did not intend to protect transgender people from discrimination.

Consider here an analogy with religious discrimination. Absent clear evidence, it would be problematic to attribute to Parliament the intention to prohibit religious discrimination and the intention that, with respect to some religious group (say Christians or Muslims), their exclusion never amounts to religious discrimination, regardless of the aim of the exclusion. Such logic would strike at the heart of the aim of combating religious discrimination.

To be sure, it is possible for the legislature to have two conflicting intentions, sometimes found in separate statutes. It could be the case that, in this given instance, Parliament clearly had the abstract intention to prohibit sex discrimination and the specific intention that excluding transgender women from separate and single-sex services never amounts to sex discrimination. These two intentions conflict, as I explained above. In such cases however, as Ronald Dworkin has convincingly argued, courts need to move beyond intentions.We need to ask which of the two conflicting intentions is more important from the point of view of the values of a legal system: the intention to prohibit sex discrimination for everyone, or the intention to exclude a group of people from discrimination protection in a blanket way? This is because if our argument were to be based solely on legislative intentions, it would be circular: legislative intentions are on both sides of the argument. So, what should courts do in this case? Dworkin argues that the general intention should outweigh the specific intention. This is because the legislature would not have abandoned its abstract commitment to combating sex discrimination, if – in case of conflict -it had to choose between that commitment and the specific intention to exclude trans women from separate and women-only services. It would have chosen the former over the latter. So, by deferring to the abstract commitment, courts would be respecting the legislature’s weightier abstract intention.

Note finally, that the problem with the second interpretation is symmetrical vis-à-vis trans women and biological women. It would be no less problematic to attribute to Parliament the opposite view, namely that transgender persons must never be excluded from separate and single-sex services. This too would be a blanket approach. The reason is the same: unless we know what the aim of an exclusion is we cannot know (nor can courts) whether it is discriminatory. It is a well-established legal principle, affirmed consistently by the European Court of Human Rights, that blanket measures affecting fundamental rights are problematic. The proposition that transgender persons must be excluded from all separate and single-sex services is as blanket as the proposition that they should never be excluded from any separate and single-sex services. In both cases, the aim of the exclusion is rendered irrelevant and immune from judicial scrutiny.

5. Why Blanket Exclusions violate the General Prohibition of Sex Discrimination

So, what did the Court actually say? The Court’s construction of the legal issue was shaped by the existence of the Gender Recognition Act 2004 which states in Section 9 (1) that “where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender” and allows for modifications introduced in subsequent legislation. The legal issue was, from the outset, confined to transgender persons with a GRC and not to transgender persons in general.

The Court was heavily preoccupied with a perceived tension between the GRA 2004 and the EA 2010 Act. The EA contains not only a general provision that prohibits sex discrimination (section 11) but several other provisions to do with specific forms of discrimination, such as with respect to pregnancy and maternity leave (section 25). It also contains a separate provision that identifies ‘gender reassignment’ as a protected characteristic (Section 7). For the Court, the tension stems from an attempt to map onto all the relevant provisions of the EA a uniform definition of ‘sex’ and ‘woman’ that would include, as section 9 (1) of the GRA seems to require, ‘certificated sex’ and ‘transgender women’. So, for example, the provisions for pregnancy and breast-feeding clearly apply only to biological women. But if transgender women with a GRC are women for all legal purposes, then it seems to follow that they benefit from those provisions, which seems inapt since they cannot become pregnant. More worryingly for the Court, a transgender man with a GRC who is pregnant would not be able to benefit from discrimination protection under that provision because, in the eyes of the law, that person would be certified as a man. For the Court, the EA would become ‘unworkable’ and ‘incoherent’ if wherever it mentions ‘sex’, this is taken to mean ‘certificated sex’.

The Court made similar observations about the provisions relating to separate and single-sex services under Part 3 of the EA 2010. These provisions introduce a proportionality requirement whereby separate provisions for ‘each sex’ can be permissible on the condition that a ‘joint service for persons of both sexes would be less effective’ and the provision is proportionate. The Court reasoned that if ‘sex’ meant ‘certificated sex’ then it would be ‘difficult, if not impossible’ to assess whether a joint provision for both sexes would be less effective than separate for each sex. This is because when contemplating separate provisions for each sex, each sex would include both non-transgender persons and transgender persons of the opposite sex with a GRC (but not those without a GRC). But then the comparison of effectiveness would be between two scenarios (joint sex vs separate) each of which would contain persons of both biological sexes. And, crucially for the Court’s reasoning, in the scenario whereby separate services are provided for each certificated sex, neither category would include all transgender persons. Each category would include only those with a GRC.  Put differently, it is hard to compare ‘joint services for both sexes’ with ‘separate service for each sex’ if sex means certificated sex. The comparison would not track biological sex, nor would it track gender, understood as a social category. Some transgender women (those with a GRC) would be in one sex and others in the opposite (those without). Ditto for transgender men.

Similarly, when it comes to the EA provisions regarding single-sex services, where proportionality also applies, the Court noted that it is not possible to apply these provisions coherently if ‘sex’ means ‘certificated’ sex. This is because it is a requirement under the EA that ‘only persons of that sex have need of the service’. But if ‘sex’ means certificated sex, then it is difficult to see how say, both biological women and transgender women with a GRC have a need for cervical cancer screening. Not only do transgender women with a GRC not have a need for that screening but also transgender men with a GRC, who would be excluded, have that need.

We should obviously agree with the Court that a literal replacement of the words ‘sex’ with ‘certificated sex’ in all the provisions of the EA 2010 produces incoherent results. But, of course, the issue is whether attributing legal meaning to one statute (the EA 2010) in the light of another (GRA 2004) is like an exercise in seeking to replace one word with another in a word document. As explained above, this would be a mistake. What the word ‘sex’ means in a legislative provision and what the legal meaning of sex discrimination is, are not the same thing.

The Court rejected an alternative approach, taken by the Inner House, of a ‘variable definition’ according to the context of each provision in the EA. The reason the Court gave for this rejection is that contextual definitions undermine certainty. There was hardly any explanation, however, for this argument. And the objection here is that contextual definitions bring about more certainty precisely because they are tailored to a given aim. There is little certainty – only confusion – involved if a court were to impose a uniform biological definition of, say ‘fish’ to all legal provisions, whereby it would cover cases where protection should obviously apply to whales.  But I want to set aside the Court’s argument from certainty, and to grant that even a variable definition of the word ‘sex’ is unworkable as a simple ‘word’ substitution, given the wording of the various provisions of the EA.

Still, what does this show? Let us grant that Parliament intended that the word ‘sex’ in the EA 2010 means ‘biological sex’.  And let us grant that Parliament intended that biological men and women benefit from exemptions to do with separate and single-sex services and the principle of proportionality that governs them. Does this entail that Parliament intended that transgender persons (with or without a GRC) not benefit at all from these exemptions, as the radical reading advocates?

This does not follow. Consider a simple hypothetical that exposes this fallacy. Suppose you have a health condition and your doctor asked you to eat healthily, giving you instructions containing a vegetable diet. The instructions contain detailed references to the biology of vegetables which cannot be interpreted to include fruits. At some point you realise that the tomatoes you have been eating are fruits, not vegetables. Unable to reach the doctor, you try to see if ‘vegetables’ in the doctor’s instructions could be interpreted as ‘whatever food people conventionally treat as vegetables, even if it is not biologically a vegetable’. That definition, however, proves unworkable, given the text of the doctor’s instructions. Let us suppose, however, that tomatoes -unlike other fruits – are extremely beneficial for your health condition. Here, it would not follow that your doctor intended that you not eat tomatoes, simply because the doctor intended a biological definition of vegetables. The same hypothetical can be applied to law: from the fact that Parliament intended a biological definition of ‘fish’ in environmental protection legislation, it does not follow that mammals, such as whales, have no legal protection, nor that whales must never have the same protection as fish. If the aim of the statute in the protection of marine wildlife, whales should not be excluded.

Recall that the question for the court in For Women Scotland was simply whether trans women with a GRC should be excluded from quotas about women’s representation in public boards. The question was not the general question of what counts as sex discrimination against transgender persons. I am not here making a point about the distinction between the letter of the law and the spirit of the law – important as this may be.  Let us accept that Parliament could not have intended always to treat persons who change their legal sex in exactly the same way as people who are of that sex. But it still does not follow that Parliament intended never to treat persons who legally change their sex, in the same way as persons who are of that sex. Nor, of course, that it intended never to treat transgender women and men (with or without a legal change) in the same way as biological women and men respectively. There is no indication of such intention in any of the relevant acts.

Besides, we have a powerful indication that Parliament did not intend this blanket approach. Section 11 prohibits sex discrimination as a general matter and, as explained, transgender discrimination is sex discrimination. The Court did not ‘read down’ section 11, or deprive it of its normative force with respect to trans persons. It couldn’t, because this general provision protects everyone from sex discrimination, and it was Parliament’s clear intention to do so by passing the Equality Act. Whether it is discriminatory to exclude a transgender person from a given single-sex measure remains an open question, even after the Court’s judgment in For Women Scotland. And the principle of proportionality, which the EA makes applicable to separate and single-sex measures, is essential to answering this question. An unsuccessful interpretive attempt to replace the semantic meaning of ‘sex’ in the EA with ‘certificated sex’ could not possibly have the effect that the general legal meaning of sex discrimination under section 11 of the Equality Act has radically changed.

6. Conclusion

The Court in For Women Scotland did not address any of the serious issues that would obviously be created if it had ruled that transgender persons must be excluded from all single-sex measures. A reading of the judgment that calls for such blanket exclusions has no ground to stand. The mantra that ‘sex means biological sex’ should be set aside since it cannot support any position on the issue, let alone blanket exclusions. The government welcomed the UK Supreme Court judgment as bringing ‘much-needed’ clarity. But the judgment has, instead, brought confusion, which will not settle until further litigation is brought to test, on a case-by-case basis, which measures are discriminatory. In one respect, this uncertainty should be welcome, because when it comes to sex discrimination, blanket approaches are never justifiable. The proportionality principle in human rights exists precisely to guard against blanket exclusions. If the case is taken to the European Court of Human Rights, this point will be of crucial importance as to whether the UK is in breach of Article 8 ECHR. If the updated guidance of the Equality and Human Rights Commission is not withdrawn, and becomes prevalent in practice, then a ruling of a violation of the ECHR is highly likely. In the meantime, the correct reporting of the case should be that it decided that service-providers may exclude transgender persons, if proportionate, not that they must.

The interpretation I put forward here also carries a sobering message. Discrimination is a serious issue, one that affects daily the lives of some of the most vulnerable people in our society. This is a fragile time in democratic politics globally, and vulnerable people face additional threats. Judicial protection of rights is now more important than ever. Politicians on all sides should stop using the courts as a battleground for debates around gender identity, claiming victory when a court decides a case one way or another. Discrimination law is not a culture war. The responsible stance from politicians is to say that it is for each person to decide for oneself matters of identity and that it is for the courts to decide on a case-by-case basis, what amounts to discrimination.

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(Suggested citation: George Letsas, ‘The UK Supreme Court Judgment Has Brought Much Needed Confusion: Why For Women Scotland Did Not Change UK Discrimination Law’, UK Labour Law Blog, 7 May 2025, available at https://uklabourlawblog.com/)