Supreme Court hands down judgment on definition of “woman” for purposes of the Equality Act 2010

In For Women Scotland Ltd v The Scottish Ministers, the Supreme Court unanimously held that the definitions of “man”, “woman” and “sex” in the Equality Act 2010 refer to a person’s biological sex. A Gender Recognition Certificate recognising a person’s gender as female does not bring them within the statutory definition of a “woman”.

Although the judgment means that “woman” in the Equality Act refers to biological sex at birth, the Court was careful to emphasise that transgender people are still protected against discrimination on the grounds of gender reassignment, which is a protected characteristic under equality law. This applies whether or not they hold a Gender Recognition Certificate.

Those holding a Gender Recognition Certificate also retain privacy rights, and the use of any information about their previous gender is protected in the workplace as special data. The Court’s decision does not change that position.

The impact of the decision on employers and pension schemes

 The ruling is limited to a specific point on the definition of “woman” in the Equality Act but it does not change an employer’s obligations in the workplace regarding behaving fairly and equitably in the treatment of those who are transgender.

However, while the judgment provides clarity on the law, the jury is still out on its practical impact.

It is unlikely that the decision will be significant in terms of scheme funding as the proportion of members with Gender Recognition Certificates is comparatively low, with fewer than 9,000 Certificates issued in the UK by June 2024.

There is a possible issue on the interpretation of some scheme rules relating to survivor benefits in relation to trans women. For instance, if a death benefit rule is based on defined terms of “wife” and “woman” and those definitions do not include transgender partners, a survivor with a Gender Recognition Certificate may not be eligible for the benefit. While survivor benefit rules expressed in this way tend to appear predominantly in public sector schemes, trustees of private workplace schemes should check their relevant provisions nevertheless.

For further analysis of the decision see the blog from our employment team.