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00:00The central question on this appeal is the meaning of the terms woman and sex in the Equality Act 2010.
00:10Do those terms refer to biological women or biological sex?
00:16Or is a woman to be interpreted as extending to a trans woman with a gender recognition certificate?
00:23By that I mean a person born male who now possesses a gender recognition certificate amending her gender to female.
00:33And sex to be interpreted as including what I will refer to as certificated sex.
00:40The unanimous decision of this court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.
00:53But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another.
01:03It is not.
01:04The Equality Act 2010 gives transgender people protection not only against discrimination through the protected characteristic of gender reassignment,
01:16but also against direct discrimination, indirect discrimination, and harassment in substance in their acquired gender.
01:27This is the application of the principle of discrimination by association.
01:33Those statutory protections are available to transgender people whether or not they possess a gender recognition certificate.
01:42We note that the EHRC has advised the United Kingdom Government of problems created by the certificated sex interpretation of the EA.
01:54Those problems include several matters in the nine points which we have described.
02:00In our view, the absence of coherence within the statute and the practical problems which arise demonstrate that that interpretation is not correct.
02:12It follows that the interpretation of woman in the Scottish Government guidance on the 2018 Act is incorrect, and the challenge to that guidance succeeds.
02:23It also follows that the interpretation of woman in the Scottish Parliament is not correct, and 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.
02:47Trans people have the rights which attach to the protected characteristic of gender reassignment.
02:54In addition, as we explain between paragraphs 248 and 263 of the judgment, they have protection against harassment and indirect discrimination by association with members of the sex with which they identify.
03:15A trans woman can bring a claim alleging sex discrimination because she is perceived to be a woman or by her association with women.
03:25It 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,
03:40but also where the discriminator perceives that the claimant has the characteristic or in some way associates the complainant with the protected characteristic.
03:52A trans woman is similarly protected against harassment under Section 26 of the Equality Act.
03:59Further, the principle of discrimination by association remains part of our law, see Section 19A of the EA, and protects transgender people against indirect discrimination regardless of whether they possess gender recognition certificates.
04:19A certified sex reading is not required to achieve any relevant purpose in relation to indirect discrimination.
04:28For these reasons, the Court allows the appeal.