Supreme Court ruling on definition of a woman 'at odds' with goals of UK Equality Act, ex-civil servant tells LBC

The Supreme Court this week ruled that 'woman' refers to biological sex under equality laws, excluding transgender women from the definition.

"Woman" and "sex" refer to a biological woman and biological sex in the Equality Act 2010, the Supreme Court ruled in a landmark decision.

The Supreme Court ruling follows a series of challenges brought by For Women Scotland (FWS), a gender-critical and anti-trans group, over the definition of "woman" in Scottish legislation mandating 50% female representation on public boards.

Speaking to LBC, Melanie Field, an independent adviser on equality and human rights, who oversaw the Equality Act's drafting and passage through Westminster in 2010, has called for calm but warned this recent decision could be at odds with the act’s original goals.

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She told LBC’s Paul Brand the legislation was meant to give transgender people with gender recognition certificates (GRCs) the same legal status as so-called “biological” men or women.

She said it was the “very clear” goal of the act that trans women with GRCs would be seen as women in the eyes of the law.

This will no longer be the case following the Supreme Court ruling.

Ms Field said: “So we're working in the context of that government policy and parliamentary intent that the gender recognition certificate should have the effect of changing a person's sex under sex discrimination law.

“So that was the basis on which we drafted the Equality Act 2010. And there are a number of exceptions in there that recognise the importance of biological sex in the provision of, for example, single sex services.

“And we were very careful to draft those provisions in a way that they would enable trans people to be treated differently in relation to those services, regardless of whether or not they had a gender recognition certificate.

“So my worry is that this Supreme Court judgement, which is sought to provide Clarity in a very sort of noisy and confused context, by applying a different interpretation to those provisions may mean that the act doesn't work in the way that was intended.”

The former civil servant went on to say Wednesday’s landmark ruling could lead to confusion in how trans women are treated in the work place as she called for calm in debates around the issue of gender recognition.

She said: “There's one particular provision that doesn't work in the way that it was intended to, which is around equal pay. So a trans woman who was being paid less than a man, a trans woman with a GRC who was being paid less than a man because of her sex. If on Tuesday would have been able to bring a claim for equal pay with a male comparator, as of today, she wouldn't be able to do that, she would be treated as a man under those provisions and therefore would need a female comparator.

“My other concern has been a lot of the narrative that has been coming out around, you know, trans women are no longer going to be able to use women's toilets, which I just think is not correct,” she added.

“I think we have to wait and see what guidance the Equality and Human Rights Commission brings out over the summer to clarify that. But, of course, you know, trans women need access to facilities that are appropriate for them.”

Opening the Supreme Court judgement, Lord Reed called on all parties to respect the "dignity" of the court.

He said: "Some people will be pleased and others will be disappointed.

"Whatever your feeling may be, please respect the dignity of these courts and remain silent until the court is adjourned."

He said the "central question" is how the words "woman" and "sex" are defined in the 2010 Equality Act.

He said: "Do these terms refer to biological woman or biological sex, or is a woman to be interpreted as extending to a trans woman with a Gender Recognition Certificate?

"The 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."

He went on to say: "The Equality Act 2010 gives transgender people 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.

"This is the application of the principle of discrimination by association.

"Those statutory protections are available to transgender people, whether or not they possess a gender recognition certificate."

In an 88-page ruling, Lord Hodge, Lady Rose and Lady Simler said: "The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary, a person is either a woman or a man.

"Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men.

"Although the word 'biological' does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman. "These are assumed to be self-explanatory and to require no further explanation.

"Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group."

They continued in their written ruling: "A certificated sex interpretation would cut across the definition of the protected characteristic of sex in an incoherent way.

"References to a 'woman' and 'women' as a group sharing the protected characteristic of sex would include all females of any age, irrespective of any other protected characteristic, and those trans women, biological men, who have the protected characteristic of gender reassignment and a GRC, and who are therefore female as a matter of law.

"The same references would necessarily exclude men of any age, but they would also exclude some, biological, women living in the male gender with a GRC, trans men who are legally male.

"The converse position would apply to references to 'man' and 'men' as a group sharing the same protected characteristic.

"We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of, biological, women and girls, or men and boys, with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group."