Legal analysis: How Christians are affected by the UK Supreme Court gender ruling

COMMENT

The UK Supreme Court recently ruled that the definition of a woman is determined by biology not ideology for the purposes of the Equality Act 2010. We asked Sam Webster, a Solicitor Advocate and the in-house Solicitor at The Christian Institute for his initial take on the implications for churches and Christians. Here’s what he has to say…

On 16 April, the United Kingdom Supreme Court issued its ruling in the case brought by For Women Scotland against the Scottish Government. The question for the court was, on its face, a simple one: what is the meaning of ‘sex’, ‘man’ and ‘woman’ in the Equality Act 2010? Do these words relate only to a person’s biological sex or can they also refer to a person’s acquired gender where they have legally changed it? With remarkable clarity, the court has unanimously ruled that sex means biological sex.

Background

The case was brought by For Women Scotland (a feminist campaign group) against the Scottish Government. In 2018, the Scottish Parliament passed an Act aimed at increasing female representation in company boardrooms. That Act defined ‘woman’ to include those who are biologically male but are transsexuals living as if they are female (‘trans women’). For Women Scotland successfully challenged this definition in court. It was held that the Scottish Parliament — in seeking to define a woman — had legislated outside its powers.

In response, the Scottish Government in 2022 issued fresh statutory guidance to support its legislation. That guidance stated that the definition of woman has the meaning under the Equality Act 2010 and also “where a full gender recognition certificate [under the Gender Recognition Act 2004] has been issued to a person that their acquired gender is female”. For Women Scotland returned to court to challenge this guidance. But in December 2022, the Court of Session in Edinburgh upheld the Scottish Government’s assertion that the term ‘woman’ in the Equality Act includes those who are biologically male but who now hold a Gender Recognition Certificate (GRC) stating that they are female. An appeal to the Inner House of the Court of Session was unsuccessful.

For Women Scotland then further appealed the judgment to the Supreme Court in London.

Reconciling two laws

The Gender Recognition Act 2004 enables those with diagnosed gender dysphoria who have lived in the opposite gender for two years to acquire a GRC. Section 9 of the 2004 Act provides:

“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

But Section 9 also states that this “is subject to provision made by this Act or any other enactment”. The question for the Supreme Court in this case was whether the Equality Act 2010 constitutes an enactment which imposes limits on the effect of having a GRC. Put another way, does having a GRC mean that a person’s gender becomes “for all purposes” their acquired gender?

The Equality Act 2010, which relates to England, Scotland and Wales, contains protections from discrimination and harassment on grounds of protected characteristics in various fields of life. This includes in the provision of services to the public or in the exercise of a public function; in the field of work and employment; in education; and in admission to membership of associations.

One of the protected characteristics is sex. The Equality Act states that “a reference to a person who has a particular protected characteristic is a reference to a man or to a woman”, that “‘man’ means a male of any age” and “‘woman’ means a female of any age”. What could be clearer? Yet these definitions could not be taken at face value if the Equality Act does not limit the reach of Section 9 of the Gender Recognition Act in redefining the sex of a person with a GRC.

The ruling

The judgment of the Supreme Court is lengthy. Over the space of 87 pages and 268 paragraphs, the Justices conducted a comprehensive analysis of the origins and content of both the Equality Act and the Gender Recognition Act. Whilst the court noted that the Equality Act does not explicitly address the effect of Section 9 of the Gender Recognition Act, the court inferred from the wider legislative context that the words “sex”, “woman” and “man” in the Equality Act “mean (and were always intended to mean) biological sex, biological woman and biological man”.

The reason for this conclusion was simple: in all material respects, the Equality Act had consolidated but left unamended earlier law from as far back as 1975 that could only have used the words ‘man’ and ‘woman’ to refer to biological sex, and that to read those words now to include “certificated sex” (where a person has a GRC) would render multiple provisions in the Equality Act “incoherent and unworkable”.

The Supreme Court noted that the Equality Act provides protections on grounds of pregnancy and maternity to “women”. But men are not mentioned in those provisions. If the word ‘women’ includes biological males with a GRC, such “trans women” would have the right not to be discriminated against on grounds of pregnancy and maternity. Yet, as the court observed, “as a matter of biology, only biological women can become pregnant”. And a biological woman with a GRC stating that she is male would be excluded from protection even though she may still be able to get pregnant.

The Equality Act also includes exceptions allowing single and separate-sex services and facilities if the conditions in the exceptions apply. But, as the Supreme Court observed, those exceptions become unworkable if a certificated sex interpretation is adopted. The exceptions require that they will be applied for reasons such as protecting the privacy and dignity of one sex, or where one sex might reasonably object to the presence of a person of the opposite sex. However, it is difficult to see how the reasonableness of such objections could be founded on possession or lack of a paper certificate. Furthermore, in practice, it would be difficult for service providers to distinguish between transsexuals with and without a GRC. It is not possible to tell from appearances whether a person has a GRC and it is not permitted to ask them.

Likewise, the Supreme Court noted that the Equality Act contains exceptions for associations and charities based on a shared protected characteristic. This includes associations limited to biological women. However, if sex can include certificated sex, the exceptions would be unworkable.

Protections for transsexuals

In response, trans right groups have claimed that the judgment undermines their rights. But the Supreme Court was at pains to stress that the Equality Act makes provision to protect the rights of transsexual people. It is established law that discrimination because of a protected characteristic encompasses not only where a person has been discriminated against because they have the protected characteristic in question, but also where the discriminator perceives that the complainant has the characteristic. Thus, a trans woman who is turned down for a job because the employer believes that person is a biological woman because of their appearance, may claim sex discrimination on that basis.

And separately, the Equality Act prohibits discrimination on grounds of “gender reassignment”. Under the Act, a person is stated to have “the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”. A transsexual person has this protected characteristic regardless of whether he or she has a GRC.

The Equality Act allows for the provision of single and separate-sex services and facilities if doing so meets the conditions set out in the exceptions and if it is a proportionate means of achieving a legitimate aim such as the requirements of safety, privacy or the dignity of other service-users. Those exceptions, where they apply, may permit restrictions based on both sex and gender reassignment. But until this judgment, it was not straightforward applying the exceptions in cases involving those with a GRC (which, as the court noted, accounts for a small minority of trans people).

Implications

With admirable deftness, the Supreme Court has clarified the law in the most straightforward of ways. This is welcome news for churches and other Christian bodies as they seek to devise policies on how to accommodate transsexual people who might attend their services or access their activities, without compromising their convictions.

For many years, leading transgender campaign groups and public bodies have asserted a legally flawed definition of sex when applying the Equality Act. Unfortunately, this created confusion and misled many into assuming that the Equality Act said things it did not. Prior to this judgment, there had been calls for the Equality Act to be amended to define sex by reference to biological sex only. However, the judgment of the Supreme Court shows that such amendment is unnecessary.

The full implications of the judgment must still be fully explored. The Equality and Human Rights Commission is now reviewing its guidance in light of the ruling. On 25 April, the Commission issued a helpful interim update to highlight the main consequences of the judgment and this can be found on its website.

Although this is not a simple area of law, the ruling will mean that it will be easier for churches and other organisations to apply the Equality Act. It is also likely to mean that many public and secular bodies will have to revisit their policies relating to the use of single-sex spaces.

In its judgment, the Supreme Court stated: “The definition of sex is foundational to the Equality Act 2010”. As Christians, we know that the definition of sex is foundational to God’s design for humanity. We rest our understanding on Scripture, not least Genesis 1:27. In contrast, the Supreme Court was quick to point out in its judgment that:

“It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the [Equality Act] 2010. It has a more limited role which does not involve making policy.”

For this reason, Christians would be wise not to assume applications from the ruling which were outside its scope. Nevertheless, the judgment is very significant. As well as clarifying the law, it highlights that the effect of a GRC is not absolute. The meaning of ‘sex’ in the Equality Act is indeed the same as the design of our Creator. And it is gratifying to note that many of the factors which led to this ruling were based on considering the natural — we would say God-given — differences between men and women and the unworkability of the law if the court had found otherwise.

This article first appeared in Evangelical Times.