The UK Supreme Court has ruled that a "woman" is defined as a "biological woman and biological sex," a definition that it says does not include transgender women.
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00:00When we announce our decision in this case in a moment, some people here will be pleased
00:11and others will be disappointed. Whatever your feelings may be, please respect the dignity
00:18of these proceedings by remaining silent until the court has adjourned. Lord Hodge will explain
00:25the decision of the court. The principal issues raised on this appeal are questions of statutory
00:33interpretation. The two United Kingdom statutes which we are interpreting are the Gender Recognition
00:40Act 2004 and the Equality Act 2010. The court is well aware of the strength of feeling on all sides
00:50which lies behind this appeal. On the one hand, women who make up one half of our population
00:57have campaigned for over 150 years to have equality with men and to combat discrimination
01:04based on their sex. That work still continues. On the other hand, a vulnerable and often harassed
01:12minority, the trans community, struggle against discrimination and prejudice as they seek to
01:19live their lives with dignity. Lesbian women who have historically suffered marginalisation
01:25because of their sexual orientation have entered the debate. It is not the task of this court
01:32to make policy on how the interests of these groups should be protected. Our role is to ascertain
01:39the meaning of the legislation which Parliament has enacted to that end. The central question on this
01:47appeal is the meaning of the terms woman and sex in the Equality Act 2010. Do those terms refer
01:57to biological women or biological sex? Or is a woman to be interpreted as extending to a trans woman
02:07with a gender recognition certificate? By that I mean a person born male who now possesses a gender
02:14recognition certificate? Amending her gender to female and sex to be interpreted as including what I will refer
02:23to as certificated sex. The unanimous decision of this court is that the terms woman and sex in the Equality Act 2010
02:34refer to a biological woman and biological sex. But we counsel against reading this judgment as a triumph of the
02:42one or more groups in our society at the expense of another. It is not. As I shall explain later in this hand-down speech,
02:54the Equality Act 2010 gives transgender people protection not only against discrimination through the protected characteristic
03:04of gender reassignment, but also against direct discrimination and harassment in substance in their acquired gender.
03:16This is the application of the principle of discrimination by association.
03:22The statutory protections are available to transgender people whether or not they possess a gender recognition certificate.
03:34The questions which this Court addresses have arisen in this way.
03:38The Scottish Parliament has sought to increase the representation of women on the boards of public bodies
03:46by enacting the public boards Scotland Act 2018. I will refer to that act as the 2018 Act.
03:56The current challenges relates to the statutory guidance which the Scottish Government issued in 2022
04:04following a successful legal challenge to the statutory definition of a woman in the 2018 Act and to the original statutory guidance.
04:15In the revised guidance, the Scottish Government, relying on its interpretation of the Equality Act 2010,
04:24asserts that women, for the purposes of the 2018 Act, includes a trans woman who possesses a full gender recognition certificate,
04:35acknowledging her required sex as that of a woman.
04:39The campaigning charity for women in Scotland challenged the legality of that statutory guidance and submit that it is both wrong in law
04:49and beyond the competency of the Scottish Government.
04:53This challenge was rejected by both the Outer House and the Inner House of the Court of Session in Edinburgh.
05:01The courts held that Section 9-1 of the Gender Recognition Act 2004, which I will now refer to as the GRA,
05:10had the effect that a person with a gender recognition certificate was entitled to be treated in law
05:17as having his or her acquired gender for all purposes.
05:23They addressed Section 9-3 of the GRA, which provides that the rule in Section 9-1 is, and I quote,
05:31subject to provision made by this Act or any other enactment or any subordinate legislation.
05:39The courts held that Section 9-3 has effect only if the terms and context of the subsequent enactment
05:48require it to be interpreted as disapplying the Section 9-1 rule.
05:53They held that the Equality Act 2010, which I will now refer to as the EA,
05:59did not require such an interpretation except possibly in the provisions relating to pregnancy and maternity.
06:08Four women in Scotland appeal to this Court. Their appeal is opposed by the Scottish Ministers.
06:16We have also had the benefit of submissions from four intervenors.
06:20First, there is Sex Matters, a campaigning charity which argued cogently
06:26for a biological interpretation of the words woman and sex in the EA.
06:32Secondly, the Lesbian Project and the LGB Alliance, which are also campaigning charities,
06:40pointed out the anomalies which would adversely affect lesbians,
06:46if those terms were interpreted as certificated sex rather than biological sex.
06:54Thirdly, we had submissions from the Equality and Human Rights Commission, which I will refer to as the EHRC,
07:02a British public body which has advised the Scottish Government on the interpretation of the EA.
07:09The EHRC supported the Scottish Government's interpretation of the EA, but expressed concerns about anomalies in the operation of that Act,
07:19and concluded that the EA needed to be amended by Parliament.
07:24Fourthly, Amnesty International UK provided submissions on human rights issues relevant to the appeal.
07:32We are grateful to all the intervenors for their assistance.
07:37In a judgment written by Lady Rose, Lady Simler and me, with whom Lord Reid and Lord Lloyd-Jones agree,
07:45we unanimously allow the appeal.
07:48It is a long judgment, as the Court analyses the GRA and the EA in considerable detail.
07:56In a hand-down address, I can only give a brief description of the reasoning.
08:03The Court explains the principles which apply to statutory interpretation,
08:08including the need to give a coherent meaning to an Act of Parliament.
08:13By way of historical background, we point out that the Sex Discrimination Act of 1975,
08:20which is the relevant statutory predecessor of the EA, adopted a biological interpretation of the terms man and woman.
08:32The Sex Discrimination Gender Reassignment Regulations 1999, which I'll call the 1999 regulations,
08:41introduced a new protected characteristic of gender reassignment,
08:46which protects those who intend to undergo, are undergoing or have undergone a process of gender reassignment.
08:56The 1999 regulations did not alter the definitions of man or woman in the Sex Discrimination Act.
09:05The judgment then addresses two central questions.
09:09The first is the meaning of the GRA.
09:13As I have said, the Scottish Court supplied the rule in Section 91 of the GRA to the definition of woman in the EA,
09:22as they didn't interpret the EA as qualifying that rule.
09:27So the first question is therefore, what is the meaning and effect of Section 93 of the GRA?
09:34The Court rejects the submission that for Section 93 to operate,
09:40it is necessary to find an express statutory provision disapplying Section 91,
09:46or that the other statute, by necessarily implication, disapplies the Section 91 rule.
09:53We hold that all that is required is that the words of the other legislation, when interpreted carefully in their context and having regard to their purpose,
10:05are found to be inconsistent with that rule.
10:09That conclusion leads on to the second central question,
10:13which is whether the provisions of the EA are inconsistent with the rule in Section 91 of the GRA.
10:21Answering that question involves a painstaking analysis of those provisions.
10:28Having conducted that analysis, which takes up the majority of our judgment,
10:34the Court has concluded that the provisions of the EA are inconsistent with the rule in Section 91 of the GRA.
10:44We have summarized our reasoning in paragraph 265 of the Judgment.
10:50The principal elements of our reasoning can be summarized in the following nine points.
10:56First, the EA enacts group-based protections against discrimination on the grounds, among others, of sex and gender reassignment,
11:07and imposes duties of positive action on employers and others.
11:13Secondly, the EA must be interpreted in a clear and consistent way,
11:19so that those on whom the Act imposes obligations can identify the groups which share a protected characteristic.
11:28Thirdly, interpreting sex as certificated sex would cut across the definitions of man and woman in the EA,
11:39and thus the protected characteristic of sex in an incoherent way.
11:45It would create heterogeneous groupings.
11:49Fourthly, as a matter of ordinary language, the provisions relating to sex discrimination,
11:56and especially those relating to pregnancy and maternity,
12:00and to protection from risks specifically affecting women,
12:04can only be interpreted as referring to biological sex.
12:09Fifthly, we reject the suggestion that these words can bear a variable meaning,
12:15so that in the provisions relating to pregnancy and maternity,
12:20the EA is referring to biological sex only,
12:23while elsewhere it refers to certificated sex as well.
12:28This undermines the coherence of the statute.
12:32Sixthly, the interpretation favoured by the EHRC and the Scottish Ministers
12:38would create two subgroups within those who share the protected characteristic of gender reassignment,
12:44giving trans persons who possess a gender recognition certificate greater rights than those who do not.
12:53Those seeking to perform their obligations under the Act would have no obvious means
12:59of distinguishing between the two subgroups to whom different duties were owed,
13:04particularly since they could not ask persons whether they had obtained a gender recognition certificate,
13:12as that information is private.
13:15Seventhly, the certificated sex interpretation would also seriously weaken the protections given to those
13:24with the protected characteristic of sexual orientation,
13:29for example by interfering with their ability to have lesbian-only spaces and associations.
13:37Seventhly, other provisions will function properly only if sex is interpreted as biological sex.
13:46Those provisions include separate spaces and single-sex services,
13:51including changing rooms, hostels and medical services, and communal accommodation.
13:58And ninthly, similar incoherence and impracticability arise in the operation of provisions
14:07relating to single-sex characteristic associations and charities,
14:13women's fair participation in sport, the operation of the public sector equality duty, and the armed forces.
14:21Standing back, we note that the EHRC has advised the United Kingdom Government of problems created by the
14:30certificated sex interpretation of the EA.
14:34Those problems include several matters in the nine points which we have described.
14:40In our view, the absence of coherence within the statute and the practical problems which arise demonstrate that that interpretation is not correct.
14:52It follows that the interpretation of women in the Scottish Government guidance on the 2018 Act is incorrect and the challenge to that guidance succeeds.
15:04It also follows that the 2018 Act correctly interpreted is within the legislative competence of the Scottish Parliament.
15:13Finally, as I flagged up earlier, the correct interpretation of the EA as referring to biological sex does not cause disadvantage to trans people whether or not they possess a gender recognition certificate.
15:28Trans people have the rights which attach to the protected characteristic of gender reassignment.
15:35In addition, as we explained between paragraphs 248 and 263 of the judgment, they have protection against direct discrimination, indirect,
15:47so harassment and indirect discrimination by association with members of the sex with which they identify.
15:56A trans woman can bring a claim alleging sex discrimination because she is perceived to be a woman or by her association with women.
16:06It is now well established that direct discrimination because of a protected characteristic encompasses not only cases where the complainant affected by discrimination has the protected characteristic in question,
16:21but also where the discriminator perceives that the claimant has the characteristic or in some way associates the complainant with the protected characteristic.
16:32A trans woman is similarly protected against harassment under Section 26 of the Equality Act.
16:40Further, the principle of discrimination by association remains part of our law, see Section 19A of the EA, and protects transgender people against indirect discrimination,
16:54regardless of whether they possess gender recognition certificates.
16:59A certified sex reading is not required to achieve any relevant purpose in relation to indirect discrimination.
17:09For these reasons, the Court allows the appeal.
17:14The Court will now adjourn.
17:15The Court will now adjourn.