Considering the Supreme Court's decision that the term "sex" refers to "biological sex" in an employment context
Roland Fairlamb is an Associate Solicitor at specialist employment law firm, Collingwood Legal. Roland considers a recent Supreme Court decision in respect of the definition of “sex” under the Equality Act 2010.
Supreme Court’s ruling on the meaning of “sex” under the Equality Act 2010
The Equality Act 2010 (EqA 2010) provides protection to individuals from discrimination relating to one of the nine identified “protected characteristics”. The protected characteristics include “sex”. Specifically, paragraph 11(a) of the EqA 2010 states in respect of sex: “a reference to a person who has a particular protected characteristic is a reference to a man or to a woman”.
The Supreme Court was asked in the matter of For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 to determine how such a definition should be interpreted. In particular, the arguments put forward centred around whether a transgender woman with a Gender Recognition Certificate (GRC) should receive the same protection under the protected characteristic of “sex” as a biological woman. The Scottish government argued that obtaining a GRC amounted to a change of sex “for all purposes”, and therefore the protection of “sex” under the EqA 2010 should extend to a transgender woman with a GRC.
However, the argument put forward by the Scottish government was unsuccessful. The unanimous decision of the Supreme Court was that the proper interpretation of the terms “woman” and “sex” in the EqA 2010 refer to “biological woman” and “biological sex”. This conclusion was partly led by the rationale that the application of these words in a legislative context needs to be clear and consistent, and that using the definition of “certified sex” would create confusion and impact the protected characteristic of “sex” under the EqA 2010 in an “incoherent way”. The Supreme Court was also concerned that it would potentially weaken the protection offered to other protected characteristics, such as “sexual orientation”, and could therefore have wider, unintended, implications.
The Protected Characteristic of “gender reassignment”
It is vital to note that, regardless of the conclusion reached, the Supreme Court was at pains to emphasise that the decision should not be taken as a “triumph for one or more groups in our society at the expense of another”. In particular, the Supreme Court wished to offer reassurance that transgender people do have protection under a different protected characteristic identified in the EqA 2010.
Specifically, paragraph 7 of the EqA 2010 identifies “gender reassignment” as a protected characteristic. Lord Hodge took steps to reiterate that transgender people therefore benefit from “protection, not only against discrimination through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender”.
What does this mean in practice?
It is important to note that this was not a decision specifically made in an employment context – it is a decision regarding the interpretation of the EqA 2010.
However, there will be clear implications in an employment context. One example is where “positive action” may be taken by an employer specifically to support a group of people who share a protected characteristic. In a scenario whereby such positive action is taken by an employer to support women, for example, such positive action should not extend to transgender women. In other words, the distinct needs and disadvantages of one group (e.g. women) should be considered separately to those of another group (e.g. transgender women). This is an important factor for public bodies that have a public sector equality duty. There are therefore clear implications for employers to consider moving forward.
About us
Collingwood Legal is a specialist employment law firm and we provide bespoke training and advice to organisations on all areas of employment law.
www.collingwoodlegal.com
0191 282 2880