What is a woman?

This follows a case brought by For Women Scotland, which challenged the Scottish Government’s approach to gender quotas on public boards. The Scottish Government wanted these quotas to include people who are biologically male but had a Gender Recognition Certificate (GRC) and identified as trans women. 

The legal decision hinged on how the 2010 Equality Act interacted with the 2004 Gender Recognition Act (GRA). The latter piece of law stated that someone who had a GRC was to be considered as their new gender for all purposes before the law. The Equality Act set out a range of protected characteristics under which people have legal protection from discrimination. One of these is sex and gender (the two terms are used interchangeably in the legislation), and an important aspect is the provision for services and activities provided to only one sex.

The court ruled that sex in the context of this law has to be defined by biology rather than legal certification, not least because of the incoherence it would mean in law relating to pregnancy and maternity rights if it included biological men (trans women), but not biological women (trans men) within this area. 

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The Evangelical Alliance has engaged in this policy area for well over 20 years, from the origins of the GRA, and have maintained an interest in both the legal policy aspects as well as the pastoral implications for churches.

This judgment is a significant shift as for most of the past two decades companies, public sector bodies and government policy have followed a model of inclusion that prioritised certified sex over biological sex. This approach led to some galling situations such as where men convicted of raping women but who identified as trans women were placed in women’s prisons. Likewise, restrictions on employment to women-only posts sometimes included biological men within the application group.

Serious concern has been raised in recent years over the application of this approach and what it means for provision of toilets, changing facilities and appropriate protection of women. There are currently two live legal cases involving nurses protesting against the admittance of biological men into female changing facilities because these people identify as trans women.

Similarly, the impact on education has been significant, with questions asked, and insufficiently answered, as to how teachers should engage with pupils who want to identify as a gender other than their biological sex. The last government produced draft guidance which protected the rights of teachers to rely on biological sex, and the current government has not yet produced final guidance in this area.

While the judgment is in some respects narrow – it applies to how the 2010 Equality Act defines women, rather than making a universal judgement on sex and gender discussions – its impact is wide ranging. This is because the Equality Act is a very wide-ranging piece of law, and it will affect how public bodies, employers, service provides and many others provide on the basis of sex, and in particular how they provide for women.

It is important to note that the Equality Act also prohibits discrimination on the grounds of gender reassignment, and this applies to people pursing gender reassignment, not just those who hold a GRC. The recent judgment does not affect this, and the judges were keen to point out that protection against discrimination on these grounds remains and is vital to protect. What this protection does not do, as this case underlines, is undermine the protection for women against sex discrimination.

Following the ruling from the Supreme Court a wide range of organisations and services will have to review their provision and policies, and the Equality and Human Rights Commission (EHRC) – as the body with responsibility for overseeing the application of equality laws – have stated that they will issue revised guidance. Some situations are made more straightforward in the wake of this judgment, and others are undoubtedly challenging.

For example, a women’s refuge seeking to employ a counsellor and restrict applicants to women can now justify doing so on the basis of biological sex with absolute confidence. At the more challenging end is the provision of services such as changing rooms, as while a trans woman, who is biologically male, is required to be excluded from female-only changing spaces, they may also be excluded from male changing spaces if their physical appearance is sufficiently female to cause disruption. A commissioner for the EHRC notes that this does leave trans people in a ​‘double-bind’. Therefore the outworking in a number of situations may well be complex.

The ruling also raises questions around the status of the 2004 Gender Recognition Act and the more than 8,000 GRCs which have been issued. As noted, the judgment does not undermine protection against discrimination, but this protection never required someone to have a GRC. While the judgment leaves the process as legally valid, it is harder to see what practical implications there are if someone has a GRC; this is an area the government could address through legislation. However it is unlikely they will want to reopen the law in this area.

There will also be questions on how schools, hospitals and employers put the ruling into practice, and this is an area the Evangelical Alliance will continue to pay attention to in coming months. We will also engage with any relevant policy consultations or reviews as they arise.

There is less immediate impact on churches. Our Transformed resource noted the possibility of marking a disabled toilet with male, female and disabled signage. It also noted that residential venues can insist on single-sex spaces. We will comment further when more guidance is available.

While new guidance may take some time, employers, especially public bodies, should already be acknowledging potential issues with existing policies. Individuals may wish to ask their employers about the impact of the ruling in their workplaces. We also need wisdom to pastor trans people who may be struggling with the decision and many in the wider congregation who should be encouraged by a ruling that protects women.