Employment Barrister Matthew Todd breaks down what the Supreme Court’s ruling on sex has determined and the impact this has upon trans individuals in relation to discrimination claims in Employment Law.

In an area that provokes strong feelings for many, the recent Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers should be carefully considered. The case concerned only the way in which the Equality Act 2010 was intended to define the protected characteristic of sex. The judgment is at pains to emphasise that it is only concerned with how the Act was intended to operate, and not broader social questions about the definition of sex and/or gender.

The Supreme Court’s Ruling on Sex 

The Court found that the concept of sex as defined by the Act was binary. This was based in large part on s.11 of the Act, which states:

“In relation to the protected characteristic of sex— 

1. a reference to a person who has a particular protected characteristic is a reference to a man or to a woman

2. a reference to persons who share a protected characteristic is a reference to persons of the same sex.”

The Impact of The Supreme Court’s Ruling on Employment Law 

It was the Court’s view that, given the narrow definition of sex above and the presence of protections for transgender people elsewhere within the Equality Act, it was parliament’s intention that the protected characteristic of sex refer only to the biological sex of an individual (that is to say, the sex into which they were born), rather than sex which is legally recognised later in life under the Gender Recognition Act 2004 (referred to in the judgment as 'certified sex').

The impact of this case is that trans individuals with a Gender Recognition Certificate will be unable to rely on their certified sex as a protected characteristic when bringing discrimination claims.

Thanks to Employment Barrister Matthew Todd for explaining the Supreme Court’s ruling in the ‘Women Scotland Ltd v The Scottish Ministers’ case.

To check the availability of Barrister Matthew Todd for your Employment Law case call our Employment Clerk Alessandro Saporita-Clark on 0161 832 4036, email Alessandro@kenworthys.co.uk, or fill out our contact form.

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