Claire Bradley, Legal Researcher
Photo credit: DAVID ILIFF. License: https://creativecommons.org/licenses/by-sa/3.0/
Introduction
The UKSC judgment in the case of For
Women Scotland (hereafter “FWS”) has caused strong reactions across
the UK, not least of all amongst legal commentators; but few detailed analyses
of the premises underpinning the judgment have been published for a general
audience. This article undertakes that detailed analysis of the FWS
judgment.
In the UK Supreme Court (UKSC) judgment
in For Women Scotland,(hereafter “FWS”) at paragraph 265, the Supreme
Court set out a summary of their reasoning, and these premises formed the
justification for their conclusions. In this article, we will be examining each
of those premises in turn. These will be bolded and cited as “Premise 1,
Premise 2 etc” to make clear that they are quotes from the judgment itself.
We will examine each premise in turn in
order to establish whether the judgment is factually correct, well-reasoned and
whether the conclusion logically flows from the premises. This will be done in
order to establish whether or not the UKSC judgment in FWS is a justifiable
interpretation of the Equality Act and whether it is well reasoned and based on
relevant facts and law.
Background to the case
This case was bought by For Women
Scotland, who sought to judicially review the statutory guidance which the
Scottish Ministers promulgated under section 7 of the Gender Representation on
Public Boards (Scotland) Act 2018 (“the 2018 Act”), in May/June 2020.
According to a news story published on
the For Women Scotland website on the 31st July 2020:
"A pre-action protocol
letter has been sent to the government by lawyers acting on behalf of For Women
Scotland expressing significant concerns that a law intended to address
historical under-representation of women on public boards is fundamentally
flawed and that the Scottish Government has exceeded its authority in
redefining “woman”. This follows the publication of Statutory Guidance on 29
May 2020.
Therefore, the trigger for the case (what
lawyers call the ‘cause of action’) in the case of FWS, started with the
publication of the Statutory Guidance in late May/June 2020, which was in the
middle of the transition period. EU law carried on applying to the UK
throughout 2020, as a direct result of Article 127(1) and (3) of the EU-UK Withdrawal Agreement.
The EU-UK Withdrawal Agreement also specified how the courts were supposed to
interpret cases covered by EU law during the transition period, particularly Articles
127(1), Articles 4(1), 4(2), 4(3), 4(4) and Article 5 of the EU-UK Withdrawal Agreement.
Procedural history of the case of For
Women Scotland
The procedural history is:
23 October 2020 – For Women Scotland set up their Crowdjustice
page and asked their supporters to share it far and wide.
26 November 2020 - A procedural hearing was held at
the (Outer House) of the Court of Session to make sure all legal documents were
lodged correctly and to schedule additional court time for the substantive
hearing to run over two days on 7th and 8th January. Equality Network applied
to intervene.
11 December 2020- A hearing was held on the 11th
December 2020 to determine whether Equality Network should be allowed to
intervene in the case. Lady Wise allowed intervention of a written submission
of no more than 5,000 words by 18th December.
31 December 2020 – the transition period ends, and the
UK leaves the EU. During the transition period, EU law carries on applying
under Articles 4, 5, 126, and 127(1) and (3) of the EU-UK Withdrawal Agreement.
Post Brexit procedural history
7th and 8th January 2021 - the substantive hearing took place
before Lady Wise, in the Outer House of the Court of Session.
23 March 2021 - judgment was issued by Lady Wise in
favour of the Scottish government. The judgment is available here. This includes extensive references to EU law, the Equal
Treatment Directives and relevant CJEU case law, all of which are directly
relevant to the question of whether sex in law relates to biological sex or
certificated sex.
3rd and 4th November 2021 – There was a substantive hearing date
at the Second Division, Inner House, Court of Session
22 March 2022 - FWS win their appeal (For
Women Scotland Ltd v The Lord Advocate [2022] CSIH 4, 2022 SC 150 “FWS1”).
On 22 March 2022 the Second Division declared that the definition of “woman” in
section 2 of the 2018 Act was outside the legislative competence of the
Scottish Parliament, because the definition of “woman” in section 2 of the 2018
Act included trans women as defined, it went beyond the scope of the exception
permitted by section L2 of Schedule 5 to the Scotland Act; it therefore
purported to legislate in respect of a reserved matter, namely equal
opportunities, and so was outside the competence of the Scottish Parliament.
19 April 2022 Following on from that decision the
Scottish Ministers produced revised statutory guidance to the 2018 Act.
That revised guidance, the organisation
For Women Scotland contended, did not conform to the interlocutors of 18
February and 22 March 2022 pronounced by the Appeal Court in the earlier
petition and was therefore unlawful. Therefore, it too ought to be reduced as
had happened in FWS1. For Women Scotland therefore appealed to the Outer
House of the Court of Session, to get the revised statutory guidance
overturned.
13th December 2022 The Outer House, Court of Session
issued its ruling. Lady Haldane heard the appellant’s challenge in the Outer
House. In a carefully reasoned judgment dated 13 December 2022 ([2022] CSOH 90;
2023 SC 61), she dismissed the petition. She rejected the appellant’s argument
that the Inner House’s decision in the first judicial review had
authoritatively determined that “sex” in the Equality Act was confined to
biological sex only (para 44). She held that section 9(1) of the GRA 2004 had
the effect that a Gender Recognition Certificate (hereafter “GRC” changed a
person’s sex for all purposes, stating that the language of section 9 of the
GRA 2004 “could scarcely be clearer” (para 45). She rejected the
appellant’s submission that the GRA 2004 had a narrow purpose which had been
largely superseded by subsequent legislation, including legislation
establishing the legality of same sex marriage. She observed that the GRA 2004
listed exceptions to the rule in section 9(1), such as marriage, parenthood,
succession, peerages and trusts, and stated that the founding principle of
section 9 of the GRA 2004 is a broad one: “that the acquired gender becomes
the person’s sex ‘for all purposes’ subject to any other enactments, or the
statutory exceptions listed” (para 47). Lady Haldane rejected the submissions:
(i) that there was a conflict between
the GRA 2004 and the Equality Act 2010, which she stated was “drafted in full
awareness of the 2004 Act, and its ambit” (para 50), and
(ii) that the Equality Act 2010
impliedly repealed or disapplied section 9(1) of the GRA 2004 (para 52). As a
result, “sex” in the Equality Act was not confined to biological sex but
includes the acquired sex of those who possess a GRC obtained under the GRA
2004. Lady Haldane therefore concluded that the revised guidance of the
Scottish Ministers on the 2018 Act was lawful.
1 November 2023 - The Second Division of the Inner
House (the Lord Justice Clerk (Lady Dorrian), Lord Malcolm and Lord Pentland)
agreeing with Lady Haldane, held that the GRA 2004 was a far-reaching enactment
which created a mechanism by which a person could change his or her sex in the
eyes of the law. The judgment (para 42) stated that section 9(1), (2) and (3)
of the GRA 2004 read together meant that a person with a GRC “acquires the
opposite gender for all purposes unless there is a specific exception in the
GRA [2004]; or unless the terms and context of a subsequent enactment require a
different interpretation to follow”.
The
Second Division concluded that the Guidance on the 2018 Act was lawful because
a person with a GRC in the female gender is a “woman” for the purposes of
section 11 of the Equality Act 2010.
It
is worth pointing out that the European Commission’s European Network of Legal
experts in Gender Equality and Non-discrimination publishes yearly UK country
reports on whether EU Equal Treatment and discrimination law is being complied
with in the UK post Brexit. The 2024 UK Country report said that "the
EqA is silent on whether sex includes legal sex. The EHRC believes that it
does, and this appeared to be confirmed by the Inner House of the Court of
Session in For Women Scotland v The Scottish Ministers [2023] CSIH 37...The
2024 report concluded that “In the author’s view the majority of the legislation
complies with EU law (apart from the pregnancy discrimination provisions in
Northern Ireland). This suggests that as far as the European Network of Legal
Experts are concerned, the decision in the Inner House in November 2023 was
correct as a matter of EU law.
The case was then appealed to the UK
Supreme Court. The case was heard on the 26th and 27th
November 2024. The Supreme Court issued its judgment in that case on the 16th
April 2025.
The central issue on this appeal was
whether references in the Equality Act to a person’s “sex” and to “woman” and
“female” are to be interpreted in the light of section 9 of the Gender
Recognition Act (GRA) as including persons who have an acquired gender through
the possession of a Gender Recognition Certificate (GRC).
Having set out what prompted the UKSC
case, we can now consider the main premises that the UKSC raised in its
judgment, to justify the conclusions it came to, and examine whether these
conclusions are factually, legally and procedurally justified.
Contents
|
Premise number in the FWS
judgment at paragraph 265 |
What it deals with |
Page number (printed) |
|
Premise 1 |
Analysis
of the first premise of the Supreme Court’s reasoning, which concerns the
question of statutory interpretation. |
7-9 |
|
Premise 2 |
Analysis
of the second premise, with a focus on the EU law background to the Equality
Act 2010 |
10-21 |
|
Premise 3 |
Analysis
of the third premise, with a focus on the CJEU caselaw that deals with sex discrimination
and gender reassignment and analysing whether the Supreme Court can depart
from the principles found in key cases. |
22-35 |
|
Premise 4 |
Analysis of the fourth premise of the Supreme
Court’s reasoning, which focuses on the Gender Recognition Act 2004. |
36-38 |
|
Premise 5 |
Analysis of the fifth premise of the Supreme
Court’s reasoning. |
39-40 |
|
Premise 6 |
Analysis of the sixth premise of the Supreme
Court’s reasoning, which focuses on the context in which the Equality Act was
enacted and its relationship to the Sex Discrimination Act 1975. |
41-44 |
|
Premise 7 |
Analysis
of the seventh premise of the Supreme Court’s reasoning, which focuses on the
Equality Act , the protections it offers and the source of those protections. |
45-46 |
|
Premise 8 |
Analysis of the eighth premise of the Supreme
Court’s reasoning – the importance of clarity. |
47 |
|
Premise 9 |
Analysis of the ninth premise of the Supreme
Court’s reasoning – that there is no indication in relevant secondary
materials that the EA 2010 modified in any material way the meaning of “man”
and “woman” or “sex” from the meanings in the SDA 1975. |
48 |
|
Premise 10 |
Analysis of the tenth premise of the Supreme
Court’s reasoning – whether it is true that interpreting “sex” as
certificated sex would cut across the definitions of “man” and “woman” and
whether that was Parliament’s intention. |
49 |
|
Premise 11 |
Analysis of the eleventh premise of the
Supreme Court’s reasoning – when interpreting EU law, can words have a
variable meaning? |
50-51 |
|
Premise 12 |
Analysis of the twelfth premise of the
Supreme Court’s reasoning - Gender reassignment and sex are separate bases
for discrimination and inequality. |
52 |
|
Premise 13 |
Analysis of the thirteenth premise of the
Supreme Court’s reasoning – is it true that a certificated sex interpretation
of sex would seriously weaken the protections given to those with the
protected characteristic of sexual orientation? |
53-54 |
|
Premise 14 |
Analysis
of the fourteenth and fifteenth premises of the Supreme Court’s reasoning
which cover single sex spaces. |
55-60 |
|
Premise 15 |
||
|
Premise 16 |
Analysis
of the sixteenth premise which relates to the Equality and Human Rights
Commission. |
61 |
|
Premise 17 |
Analysis of the seventeenth premise of the
Supreme Court’s reasoning namely that the interpretation of the EA 2010 (ie
the biological sex reading), does not cause disadvantage to trans people,
with or without a GRC. |
62-64 |
|
The Supreme Court concluded,
on the basis of the above premises that: |
“We
therefore conclude that the provisions of the EA 2010 which we have discussed
are provisions to which section 9(3) of the GRA 2004 applies. The meaning of
the terms “sex”, “man” and “woman” in the EA 2010 is biological and not
certificated sex. Any other interpretation would render the EA 2010
incoherent and impracticable to operate (para 264).” |
|
We conclude our paper with a discussion
on whether this conclusion is justified on the application of the relevant
facts relating to the background to the Equality Act, relevant EU law and CJEU
caselaw, or whether the case of FWS was wrongly decided by the Supreme
Court.
The author would like to thank the
reviewers, Professor Steve Peers and Dr Sylvia de Mars for their constructive
comments and suggestions, which helped improve the quality of the following analysis.
Analysis of the Supreme Court judgment
in the case of For Women Scotland
In this section, we will be analysing
all of the premises cited in the judgment at paragraph 265, in order to assess
whether they are factually, legally and procedurally sound, or not, starting
with the first premise and then working through the rest sequentially.
1)
First
premise: The question for the court is a question of statutory interpretation;
we are concerned with the meaning of the provisions of the EA 2010 in the light
of section 9 of the Gender
Recognition Act 2004 (GRA 2004) (para 2 of the judgment in FWS).
In essence, this is correct. The question for the UKSC
is a question of statutory interpretation; they are concerned with the meaning
of the provisions of the Equality Act 2010, in the light of section 9 of the
GRA 2004.
Between paragraph 8-30 of the FWS judgment the
UKSC lays out the principles of statutory interpretation that they intend to
apply. The method they are using is the common law or global method of
construction, where external aids to interpretation play a secondary role. Therefore,
the Supreme Court does not appear to have considered any of the background
documents to the Equality Act 2010.
However, given that the provisions relating to gender
discrimination and sex discrimination found in the Equality Act are derived
from EU law, not UK law, we would argue that the UK Supreme Court has used the
wrong method of statutory interpretation. The Equality Act provisions relating
to sex discrimination, gender reassignment, pregnancy and maternity, were
introduced to give effect to the Gender
Directive (Directive 2004/113)
and the Recast
Equal Treatment Directive (Directive 2006/54), as we will go on and demonstrate
in detail below. Therefore, the UK Supreme Court should have interpreted the
Equality Act using a conforming interpretation and applying the purposive
approach instead.
One interesting question is what law applies when a
case is started during the transition period, but the Supreme Court only hears
the case in 2024, and gives its ruling in 2025, as in the case of FWS? Is it the law applicable in 2024 that applies
or the law that was in force when the case started? According to the case of Lipton
v BA City Flyer Ltd
[2024] UKSC 24, at paragraph 66, Lady Simmler said:
“it is the law in place at the time the material
events occur which applies, rather than some different version introduced at a
later date.”
So, the Supreme Court should have applied the law that
was applicable during the transition period to the case of FWS ie EU
law. The fact that the case started during the transition period when EU still
applied, is even more reason for the Supreme Court to adopt a conforming
interpretation in the case of FWS. The Supreme Court should have used a
purposive approach in the case of FWS, not the common law system of
construction that they did use.
One of the leading
texts on statutory interpretation - Bennion, Bailey and Norbury on Statutory
Interpretation – covers in Part 9 how UK courts are supposed to interpret
EU law. This specifies that whilst we were members of the EU and during the
transition period, courts were under an obligation 'to interpret all domestic
legislation, if at all possible, so as
to comply with EU law. This principle – called the 'Marleasing
principle' –
after the case that established this principle, applies even if the EU
legislation does not have direct effect. The courts are required to deliver a
'conforming interpretation' when interpreting a case based on EU law.
The principles to be applied by the courts when
interpreting EU law were set out in the case of Vodafone
2 v Revenue and Customs Commissioners [2008] where it
was held at paragraph 70, that from the authorities cited in that case the
following guidance was derived:
i) A "Conforming construction" of UK
legislation, under the Marleasing principle in an appropriate case, can extend
as far as implying words or provisions into UK legislation even where the
relevant provisions of that legislation are unambiguous.
ii) In implying words or provisions, it is not
necessary for the court to produce precise wording as if redrafting the
legislation but the words, or the sense of them, must not run counter to the
overall purpose and pattern of the provisions being construed ("the
grain" of that legislation).
iii) The duty of UK courts to interpret UK legislation
in conformity with EC law "where possible" does not permit those
courts, in the process, to amend UK legislation. The furthest limit of what it
is permissible for UK courts to do is drawn at the point where interpretation
becomes legislation.
iv) UK courts should not imply words into UK
legislation under the principle of conforming construction as in i) above where
to do so involves the court in taking policy decisions which a court is unfitted
to take. Typically, this situation will arise where there are two or more
choices as to the form of words to be implied, each of which may render the
legislation Community law compliant, but which produce differing effects on the
parties or on the public generally.
v) The duty to construe UK legislation, in accordance
with the principle of conforming construction, applies, with particular
strength, where the legislation in question was enacted to implement provisions
of Community law, usually a Directive. This is a logical conclusion because the
UK court in such cases will have guidance as to the purpose which that
legislation was designed to achieve from the Directive itself. In those cases,
lacunae in the UK legislation can properly be filled by implying words into
legislative provisions of which the meaning is otherwise plain, where such
implication is necessary to give effect to the plain intention of the Community
law in question. It is easier to see what "goes with the grain" of
the UK legislation where the court has a Directive for guidance.
vi) When implying words or provisions… particular
regard must be had to the Community law principle of certainty.
Bennion, Bailey and Norbury on Statutory
Interpretation concluded that the
principles to be applied by the courts when interpreting EU law were set out in
the case of Vodafone
2 v Revenue and Customs Commissioners [2008], and that:
“In summary, the obligation on the English courts to
construe domestic legislation consistently with Community law obligations is
both broad and far-reaching. In particular:
(a) it is not
constrained by conventional rules of construction.
(b) it does not require
ambiguity in the legislative language.
(c) it is not an
exercise in semantics or linguistics.
(d) it permits departure from the strict and literal
application of the words which the legislature has elected to use.
(e) it permits the implication
of words necessary to comply with EU law obligations, and
(f) the precise form of
the words to be implied does not matter.”
Historically, UK courts have used the purposive
approach when deciding how to interpret legislation that implements EU law,
which involves looking at the EU laws that were enacted into the relevant UK
law, examining CJEU caselaw, and reaching a decision that is in conformity with
the purpose of the EU law. We will be applying this approach in relation to the
decision in FWS and therefore doing what the Supreme Court should have
done when interpreting the Equality Act and s9 of the Gender Recognition Act 2004.
If the purposive approach had been used in the case of
FWS by the Supreme Court then a different decision must have been
reached, as under EU law a certificated sex reading of the Equality Act 2010 in
light of section 9 of the GRA 2004 would have been the only possible outcome,
as we will go on to show.
2) Second premise: Parliament in using the words “man”
and “woman” in the SDA 1975 referred to biological sex (paras 36-51 in the
judgment).
Background to the Equality Act
This is true, but actually irrelevant, because the
provisions of the Equality Act that covered sex discrimination and gender reassignment
in the Equality Act 2010 were actually introduced to give effect to two EU
directives, the Gender
Directive (Council Directive 2004/113/EC
implementing the principle of equal treatment between men and women in the
access to and supply of goods and services) and
the Recast
Equal Treatment Directive (European
Parliament and Council Directive 2006/54/EC (as recast) on the implementation
of the principle of equal opportunities and equal treatment of men and women in
matters of employment and occupation).
The
historical background to the Equality Act 2010 is that the provisions of the
Sex Discrimination Act 1975, which defined sex using the terms “man” and
“woman” was amended to give effect to the Gender Directive. The Gender Directive
applies the following gender-neutral definitions of sex in the directive; they
do not refer to men and women at all. Article 2 defines various types of sex
discrimination as:
a)
direct discrimination: where one person is treated less favourably, on grounds
of sex, than another is, has been or would be treated in a comparable
situation.
(b)
indirect discrimination: where an apparently neutral provision, criterion or
practice would put persons of one sex at a particular disadvantage compared
with persons of the other sex, unless that provision, criterion or practice is
objectively justified by a legitimate aim and the means of achieving that aim
are appropriate and necessary.
(c)
harassment: where an unwanted conduct related to the sex of a person occurs
with the purpose or effect of violating the dignity of a person and of creating
an intimidating, hostile, degrading, humiliating or offensive environment.
(d)
sexual harassment: where any form of unwanted physical, verbal, non-verbal or
physical conduct of a sexual nature occurs, with the purpose or effect of
violating the dignity of a person, in particular when creating an intimidating,
hostile, degrading, humiliating or offensive environment.
The
Labour Government of the day published several key documents relating to the
Equality Bill. In June 2007 the Department for Communities and Local Government
published a consultation paper, Discrimination Law
Review: A Framework for Fairness: Proposals for a Single Equality Bill for
Great Britain. This was followed in June and July 2008 by
two Command Papers published by the Government Equalities Office: Framework for a Fairer
Future – the Equality Bill (Cm 7431); and The Equality Bill –
Government Response to the Consultation (Cm 7454). Explanatory notes to the
Equality Bill were also produced. These documents are
crucial if someone wishes to understand the background to the Equality Act
2010.
The Discrimination Law Review, at
page 147, confirms that, as a result of the Gender Directive,
interpreted in accordance with the certificated sex approach taken by the CJEU
in the case of C- 13/94 P v S and Cornwall County Council [1996]
2 C.M.L.R. 247, the UK government was required to outlaw discrimination against
people who were trans, in the provision of goods and services which fall within
the Directives scope, when drafting the Equality Bill. It confirms that:
“10.7
European Directive 2004/113/EC (‘the Gender Directive’) requires equal
treatment between men and women in the access to and supply of goods and
services. The Directive does not explicitly mention gender reassignment.
However, the European Court of Justice has ruled - in the case of P v S and
Cornwall County Council (Case 13/94) [1996] 2 C.M.L.R. 247 - that the right
not to be discriminated against on grounds of sex includes discrimination
arising from a person’s gender reassignment. Therefore, we are required
to outlaw discrimination against transsexual people in the provision of goods
and services which fall within the Directive’s scope. [Bolded
for emphasis]
One of
these command papers, called the “Equality Bill –
Government response to the consultation” confirmed that the
Sex Discrimination Act 1975 was amended by the Gender Directive, and
as we shall go on to see replaced the terms “men” and “women” found in the Sex
Discrimination Act in line with the gender-neutral definition of sex found in
the Gender Directive. It said, at page 188:
“The
European Gender Directive required Member States to implement it by 21 December
2007. We notified the European Commission in advance of the deadline that there
would be a short delay in implementing the Directive in the United Kingdom.
Implementation was achieved through the Sex Discrimination (Amendment of
Legislation) Regulations 2008 which came into force on 6 April 2008. These
Regulations amended both the Sex Discrimination Act 1975 and the Sex
Discrimination (Northern Ireland) Order 1976.
This
was done to ensure that the UK Government implemented the Gender Directive as
close to the deadline for implementation as possible. The intention was to
incorporate the provisions of the Gender Directive into
the Equality Act, but the Government were aware that the Equality Act would not
become law by the 21 December 2007. Therefore, the Sex Discrimination Act 1975
was amended by the Sex
Discrimination (Amendment of Legislation) Regulations 2008, and
then when the Equality Act 2010 became law, the Sex Discrimination (Amendment
of Legislation) Regulations 2008 were repealed in their entirety, by Part 2 of Schedule 27 of
the Equality Act 2010. Once
the Equality Act became law the Sex Discrimination Act 1975 was then repealed,
under Part 1 of Schedule 27 of
the Equality Act 2010. The Sex Discrimination Act 1975 hasn’t been law since
2010.
The
case of R. (on the application of
Z) v Hackney LBC [2020] UKSC 40, which
was decided by the UK Supreme Court in 2020, confirms that the above
understanding of the legislative background is correct. This case concerned the
application of various Equal Treatment directives, including the Gender Directive and
the Race Directive, and whether a charity could rely on the positive action
provisions to justify helping people with one protected characteristic, whilst
not helping others with different protected characteristics. At paragraph 99 of
the judgment in the case of R. (on the application of
Z) v Hackney LBC, the Supreme Court said:
“The
Sex Discrimination Act 1975 made forms of discrimination on grounds of sex
unlawful. In 2008, section 43 of the 1975 Act was amended by the Sex
Discrimination (Amendment of Legislation) Regulations 2008 (SI 2008/963) by the
addition of subsection (2A), which provided that subsection (1) should not
apply to specified types of discrimination "unless the conferral of
benefits is - (a) a proportionate means of achieving a legitimate aim, or (b)
for the purpose of preventing or compensating for a disadvantage linked to
sex".
This
was the forerunner of what became section 193(2) of the 2010 Act. The Explanatory
Memorandum for the Regulations stated that this
provision was introduced to give effect in domestic law to Council Directive
2004/113/EC, implementing the principle of equal treatment between men and
women in the access to and supply of goods and services ("the Gender
Directive"). The amendment was introduced while consultation on the terms
of what became the 2010 Act was in progress.”
Paragraph
100 of the judgment in
this case went on to quote Recital (16) and Article 6 of the Gender Directive. The
Supreme Court then went on to demonstrate their detailed knowledge of the
background to the Equality Act at paragraph 101 where they said that:
“While
the 2010 Act was a Bill, Parliament's Joint Committee on Human Rights sent a
letter to the Government dated 2 June 2009 raising a number of queries about
the Bill, including about the clause which became section 193. The Government's
response by letter dated 19 June 2009 explained that the exemptions from
anti-discrimination law for charities were to be tightened up in the new
provision in line with the model already adopted in relation to sex
discrimination, so that it would no longer be sufficient for them to
discriminate if their charitable instrument allowed for this; now "a
charity would also need to show that it was justified in discriminating".
This
would be achieved if it could show that such discrimination "is
objectively justified" (ie under section 193(2)(a) or is "intended to
prevent or compensate for disadvantage linked to the protected characteristic
in question" (ie under section 193(2)(b) ). It is clear from this that in
proposing the provision in section 193(2) the government intended sub-paragraphs
(a) and (b) to serve as distinct conditions for the operation of the charitable
exemption and that it considered that satisfaction of either of them would
constitute justification for discrimination which would meet the requirements
of EU law under the Race Directive and the Gender Directive.
Given that the Sex Discrimination Act 1975, was
amended by the Sex Discrimination
(Amendment of Legislation) Regulations 2008
in order to give effect to the Gender Directive,
and these changes were then incorporated into the Equality Act, the Supreme Court should have interpreted the Equality
Act in light of the Gender
Directive not the Sex
Discrimination Act 1975, as the Gender
Directive amended the Sex
Discrimination Act as part of the process of enacting the Equality Act 2010.
The language of the Equality Act, specifically the
definition of sex, is not derived from the Sex Discrimination Act – it is
derived from the Gender
Directive.
What is the Gender Directive and what does it do?
The purpose of this Directive is ‘to lay down a
framework for combating discrimination based on sex in access to goods and
services, with a view to putting into effect the principle of equal treatment
between men and women’. The Directive represents a significant development
in the history of EU equality law: not only does it add an important measure to
the existing canon, but it is also the first instrument that expands the
concept of sex equality beyond the realm of employment and professional life.
Indeed, the idea behind this instrument was that, in order to be effective, the
principle of gender equality could not be limited to employment but needed to
be applied to all aspects of everyday life. Therefore, the Gender
Directive applies to
discrimination experienced by people of one sex or the other outside of a work
context.
The directive applies to goods and services offered to
the public, regardless of the personal circumstances of the service recipient,
and which are offered outside of the private and family spheres. However, it
doesn’t apply to media or advertising content or to education.
The Gender
Directive bans discrimination in
the field of goods and services. It prohibits:
·
any less favourable
treatment of men or women by reason of their gender.
·
any less favourable
treatment of women due to pregnancy or maternity.
·
harassment,
·
sexual harassment or
·
any incitement to
discriminate with regard to the offer or supply of goods or services.
Differential treatment can only be accepted if it is
justified by a legitimate aim and any limitation must be appropriate and
necessary.
Article 4 of the Gender
Directive defines what is meant
by Equal Treatment. It says:
“1. For the purposes of this Directive, the
principle of equal treatment between men and women shall mean that
(a) there shall be no direct discrimination based on
sex, including less favourable treatment of women for reasons of pregnancy and
maternity.
(b) there shall be no indirect discrimination based on
sex.
2. This Directive shall be without prejudice to
more favourable provisions concerning the protection of women as regards
pregnancy and maternity.
3. Harassment and sexual harassment within the
meaning of this Directive shall be deemed to be discrimination on the grounds
of sex and therefore prohibited. A person's rejection of, or submission to,
such conduct may not be used as a basis for a decision affecting that person.
4. Instruction to direct or indirect
discrimination on the grounds of sex shall be deemed to be discrimination
within the meaning of this Directive.
5. This Directive shall not preclude differences
in treatment, if the provision of the goods and services exclusively or
primarily to members of one sex is justified by a legitimate aim and the means
of achieving that aim are appropriate and necessary.”
The
relevance of the Gender Directive to the Equality Act provisions relating to
sex and gender.
This
can be seen by looking at the background documents to the Equality Act. In June
2007 the Government commissioned a Discrimination Law Review, with a view to
creating a Single Equality Act, because the whole area of discrimination law
was getting very complicated. This review led to the publication of a 190-page
document called “The Discrimination Law
Review – A framework for fairness; Proposals for a Single Equality Bill for
Great Britain” (hereafter “Discrimination
Law Review/DLR) which outlined the governments thinking in relation to creating
a Single Equality Act. This is a crucial document if someone wishes to
understand the background to the Equality Act.
However,
because the UKSC decided to interpret the Equality Act using the common law
method of interpretation as opposed to the purposive method usually applied to
EU law implemented in the UK, they excluded documents like the Discrimination
Law Review. As a result, the UKSC’s understanding of the background to the
Equality Act in the case of FWS, is based on fundamental and arguably fatal
errors of fact.
The Discrimination Law Review, at
page 147, confirms that, as a result of the Gender Directive, the
government was required to outlaw discrimination against people who were trans,
in the provision of goods and services which fall within the Directives scope.
It confirms:
Gender Directive
“10.7
European Directive 2004/113/EC (‘the Gender Directive’) requires equal
treatment between men and women in the access to and supply of goods and
services. The Directive does not explicitly mention gender reassignment.
However, the European Court of Justice has ruled (in Case 13/94 P v S and Cornwall County
Council [1996]) that the right
not to be discriminated against on grounds of sex includes discrimination
arising from a person’s gender reassignment. Therefore, we are required
to outlaw discrimination against transsexual people in the provision of goods
and services which fall within the Directive’s scope. [Bolded for
emphasis]
There
is therefore no doubt that the provisions of the Equality Act that relate to
gender reassignment and sex discrimination are giving effect to EU law and CJEU
caselaw. People who are trans have those rights because the European Court of
Justice has held since 1966 that discrimination on the grounds of gender
reassignment is discrimination on the grounds of sex and these rights were
incorporated into the Equality Act 2010 to give effect to EU law.
The Discrimination Law Review went
on to say:
10.8
The deadline for implementing the Gender Directive is 21 December 2007. The
proposed Single Equality Bill will not come into force until after this date,
so we intend to transpose the Gender Directive using regulations under the
European Communities Act 1972. Our approach to implementation is to make the
amendments necessary to fulfil our obligations under the Gender Directive. The
implementing regulations will amend the Sex Discrimination Act 1975 in order to
outlaw direct discrimination in goods, facilities and services on grounds of
gender reassignment.
10.9
Our proposals for implementing the Gender Directive are set out in more detail
in Annex B.
Therefore,
the provisions relating to sex discrimination, pregnancy and maternity and
gender reassignment in the Equality Act 2010, gave effect to the provisions of
the Gender Directive (Directive 2004/113)
taken together with the case of P v S and Cornwall County
Council [1996].
The Discrimination Law Review, at
page 148, went on to say that:
Our proposals for the
Single Equality Bill
10.10
Domestic legislation currently does not protect transsexual people from
indirect discrimination. We propose to introduce protection for transsexual
people against indirect discrimination through the Single Equality Bill. This
would apply to all areas in which discrimination on grounds of gender
reassignment is unlawful. Our proposals for this are set out in more detail in
Chapter 1. This will provide transsexual people with the same protection from
discrimination in the provision of goods, facilities and services as is
afforded on grounds of sex, race, disability, religion or belief and sexual
orientation.
10.11
In addition, the scope of the Gender Directive means that the implementing
regulations will not protect transsexual people from discrimination by public
authorities in the exercise of their public functions. Generally speaking,
public functions are those which only a public authority can carry out, such as
setting national or local government policy or allocating public funds (see
chapter 2). Extending protection to public functions would ensure that
discrimination is unlawful across the full range of activities carried out by
public authorities. It would be necessary to do this if we were to ensure that
a single public sector duty (see chapter 5) would apply to transsexual people
in the same way as to other protected groups. We therefore propose to outlaw
discrimination on grounds of gender reassignment in the exercise of public
functions.”
If the
Equality Act gave effect to the Recast Equal Treatment Directive and the Gender
Directive, what do those directives say in relation to gender reassignment and
sex?
Recital
3 of the Recast Equal Treatment
Directive states that:
“The Court of Justice has held that the scope of the
principle of equal treatment for men and women cannot be confined to the
prohibition of discrimination based on the fact that a person is of one or
other sex. In view of its purpose and the nature of the rights which it seeks
to safeguard, it also applies to discrimination arising from the gender
reassignment of a person.”
So, as
far as the Recast Equal Treatment
Directive is concerned, people are either one sex or the
other, but discrimination on the grounds of gender reassignment is
discrimination on the grounds of sex. Therefore, sex, as a matter of EU law,
applies a certificated sex reading to the term sex, not a biological reading.
The
Gender Directive (Directive 2004/113) Recital
(16) says:
"Differences
in treatment may be accepted only if they are justified by a legitimate aim. A
legitimate aim may, for example, be the protection of victims of sex-related
violence (in cases such as the establishment of single-sex shelters), reasons
of privacy and decency (in cases such as the provision of accommodation by a
person in a part of that person's home), the promotion of gender equality or of
the interests of men or women (for example single-sex voluntary bodies), the
freedom of association (in cases of membership of single-sex private clubs),
and the organisation of sporting activities (for example single-sex sports
events). Any limitation should nevertheless be appropriate and necessary in
accordance with the criteria derived from case law of the Court of Justice of
the European Communities." [Bolded for emphasis]
The
key points here are:
(i)
that
under the Directive, treating people who are trans differently can only be
justified by a legitimate aim and
(ii)
This requirement flows from EU law,
specifically the Gender Directive
(iii)
Any limitation has to be shown to be
appropriate and necessary and in accordance with the criteria derived from
CJEU caselaw. This means that any attempt to ban trans people from spaces
can only be justified if it complies with the Gender Directive and
the criteria derived from retained CJEU caselaw. This means that any
limitations on the rights of people who are trans to access services must
comply , as we will go on to examine, with the principles found in the CJEU
cases of C-13/94 P v S and Cornwall County
Council [1996], C-117/01 - K.B v National Health
Service Pensions Agency [2004], C-423/04 Richards v Secretary of
State for Work and Pensions [2006] and C-451/16 MB v Secretary of State
for Work and Pensions [2018].
Further
evidence of the EU origins of the provisions of the Equality Act that apply to
sex discrimination and gender reassignment.
The EU
origins of the Equality Act is confirmed by the EU transposition guides to
these two directives. These were written by the European Network of Legal
Experts in Gender Equality. The European Commission set up this network, as
well as a network on non-discrimination, and then merged the two networks into
one in December 2014. It is now known as the European Equality Law Network. This
network still monitors gender equality and non-discrimination in the UK post
Brexit. The network provides reporting on the transposition of and compliance
with the gender equality and non-discrimination directives, national court
rulings as well as the impact of judgements of the Court of Justice of the
European Union and, where appropriate, of the judgements of the European Court
of Human Rights on national law, the role of equality bodies as well as
legislative and political developments at national level.
The European Equality Law Network confirmed
in the UK Country report on
gender equality in 2024 that
“The
Equality Act 2010 replaces earlier legislation which had implemented relevant
EU directives:
1) Council
Directive 2000/78/EC
establishing a general framework for equal treatment in employment and
occupation.
2) Council
Directive 2004/113/EC
implementing the principle of equal treatment between men and women in the
access to and supply of goods and services.
3) European
Parliament and Council Directive
2006/54/EC on the implementation of the principle of
equal opportunities and equal treatment of men and women in matters of
employment and occupation (recast)”
The
Transposition of the Gender Directive into UK law.
The Explanatory Memorandum to the Sex Discrimination (Amendment
of Legislation) Regulations
confirms that these Regulations were introduced to give effect to the Gender
Directive. The description of the Regulations at page 1 states that:
“The Sex Discrimination
(Amendment of Legislation) Regulations 2008 (“the Regulations”) amend the Sex
Discrimination Act 1975 (“SDA”), the Sex Discrimination (Northern Ireland)
Order 1976 (“SDO”) and the Public Health Act 1936 to implement Council
Directive 2004/113/EC in the UK. This Directive (which, for working purposes is
also referred to as the “Gender Directive”) implements the principle of equal
treatment between men and women in the access to and supply of goods and
services.”
Page 5 of the Explanatory Memorandum to the Sex Discrimination (Amendment
of Legislation) Regulations confirms that it was always the intention
to enact the provisions of the Gender Directive into the Equality Act. It says:
“Government made the decision
that there should be a single consultation package presenting the proposals for
implementing the Gender Directive alongside the wider proposals for an Equality
Bill flowing from the Discrimination Law Review. A consultation on the Gender
Directive alone would have only been on the minimal changes to the Sex
Discrimination Act 1975 considered necessary to implement the Gender Directive.
By consulting on the Gender Directive and the Discrimination Law Review at the
same time, the intention was for consultees to understand how the proposals for
implementing the Gender Directive fit into and were a step towards our wider
proposals for simplification and harmonisation of discrimination law.”
At the EU level, the Report on the application
of Council Directive 2004/113/EC (the Gender Directive)
implementing the principle of equal treatment between men and women in the
access to and supply of goods and services (COM 2015/190) states that:
“In
conformity with the case law of the CJEU, the scope of the principle of equal
treatment for men and women and the prohibition of sex discrimination also
applies to discrimination arising from the gender reassignment of a person.” (page
4)
In the footnote to this statement, the European
Commission refers to Case C-13/94 P v S and Cornwall County
Council [1996] and Case C-423/04, Richards v Secretary for
Work and Pensions [2006], which we are going to go on and
look at.
The report on the transposition of the Gender
Directive (Directive 2004/113) confirms that the UK is one of five countries
that have explicitly included gender reassignment as a specific ground of
discrimination in their legislation i.e in the Sex Discrimination (Amendment of
Legislation) Regulations, with these provisions then being rolled into the
Equality Act.
In this report, the European Commission also
makes the observation that:
“So
far the CJEU has only ruled on gender reassignment. There is no case law
concerning gender identity more generally speaking as covered by the protection
against sex discrimination, but the Commission considers that the approach
should be materially similar.”
The recent CJEU judgment in Mousse
[2025] confirms that
the prohibition on sex discrimination also extends to discrimination on the
ground of gender identities that do not correspond to sex assigned at birth and
which do not include a physical change of gender (‘transgender identity’). The
judgment in this case also highlights the relevance of the Gender Directive when deciding questions relating to sex discrimination and
gender reassignment. The judgment says:
61 In that context, in particular, it
will be for the referring court to determine whether there is a risk of
discrimination on grounds of gender identity, as claimed by Mousse, in
particular in the light of Directive 2004/113 (the Gender Directive), which
implements the principle of equal treatment for men and women in the access to
and supply of goods and services.
62 It should be pointed out, in that
regard, that the scope of that directive cannot thus be confined simply to
discrimination based on the fact that a person is of one or other gender. In
view of its purpose and the nature of the rights which it seeks to safeguard,
the scope of that directive is also such as to apply to discrimination arising
from a change in a person’s gender identity (see, by analogy, judgment of 27
Apr 2006, Richards, C‑423/04, EU:C:2006:256, paragraph 24 and the case-law
cited).
This case was decided two months after the For
Women Scotland hearing at the Supreme Court, but three months before the
Supreme Court issued its judgment in the case of FWS. Therefore, the
Supreme Court could have taken the case of Mousse into consideration,
although as it is post Brexit caselaw they are not required to do so.
The
Transposition of the Recast Equal Treatment Directive 2006/54/EC into UK law
A February 2009 report
explaining how the Recast Equal Treatment
Directive had been transposed in all the EU Member
States was published by the European Network of Legal Experts.
In relation to the transposition of Directive
2006/54 by the UK, it is noted that the directive had not been explicitly
transposed into national law.
“In
the first place, it seems to me that the assumption is that the Recast Equal
Treatment Directive is merely a consolidating piece of legislation which does
not impose any new obligations on member states. Secondly, the UK Government is
in the process of drafting a single piece of equality legislation intended to
replace all or most of the current domestic equality legislation and so is not
inclined to spend time on what would be regarded as, at best, relatively
trivial matters which might arise under the Recast Equal Treatment Directive.”
In
relation to gender reassignment, the report on the transposition of the Recast
Equal Treatment Directive observed that:
"The
Sex Discrimination Act prohibits direct discrimination on grounds of gender reassignment
as well as sex. The proposed single Equality Act will extend the prohibition to
cover indirect as well as direct discrimination and will impose proactive
obligations on public authorities in respect of gender reassignment as well as
sex."
In 2011,
the European Network of Legal Experts in the field of gender equality updated
the transposition guide relating to the transposition of the Recast Equal
Treatment Directive (Directive 2006/54).
The 2011 transposition
guide in relation to Directive 2006/54 confirmed that
"The
provisions transposing Directive 2006/54/EC are now to be found in the Equality
Act 2010, though neither that Act nor the Sex Discrimination Act 1975 (as
amended; hereinafter the SDA) which preceded it were adopted for the purposes
of transposition.”
and
"National
legislation deals in detail with gender reassignment, Section 7 of the Equality
Act 2010 now provides that:
(1)
A person has 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.
(2)
A reference to a transsexual person is a reference to a person who has the
protected characteristic of gender reassignment.
(3)
In relation to the protected characteristic of gender reassignment –
(a)
a reference to a person who has a particular protected characteristic is a
reference to a transsexual person.
(b)
a reference to persons who share a protected characteristic is a reference to
transsexual persons.
‘Gender
reassignment’ being defined as a ‘protected characteristic’, the Equality Act
2010 then prohibits direct and indirect discrimination, harassment and victimisation,
etc., related to that ground”.
The
Defence of rights provisions found in both the Gender Directive and the Recast
Equal Treatment Directive
Article 17 of
Directive 2006/54 also includes a defence of rights provision, which requires
Member States to ensure that
“judicial
procedures for the enforcement of obligations under this Directive are
available to all persons who consider themselves wronged by failure to apply
the principle of equal treatment to them, even after the relationship in which
the discrimination is alleged to have occurred has ended.”
This
“Defence of rights” provision is also found in Article 8 of
the Gender Directive (Directive 2004/113) and
both of these provisions confer standing on organisations seeking to bring
claims on the grounds of a failure to apply the principle of equal treatment.
So, there is little doubt that the provisions
relating to sex discrimination and gender reassignment in the Equality Act were
introduced to give effect to EU law and CJEU caselaw, and that people were
expected to be able to rely on these legal rights and provisions, including
before national courts. The other point to come out of this is that the rights
that trans people have been relying on for the last thirty years do not stem
from trans rights activists misrepresenting the law to other trans people;
these are rights that trans people have had since 1996 as a direct result of EU
law and CJEU decisions.
Therefore, the historical provisions of the Sex
Discrimination Act are largely irrelevant as a tool for interpreting the
Equality Act. The SDA was modified by the Gender Directive as a
temporary measure whilst the Equality Act was being drafted and became law, and
once the Equality Act became law, the Sex Discrimination Act was repealed. In
the case of FWS, the Equality Act should have been interpreted in light
of the provisions of the Gender Directive, and
the Recast Equal Treatment
Directive, not the Sex Discrimination Act.
3)
Third
premise: The 1999 Regulations, enacted in response
to P v S, created a new protected characteristic of a person intending to undergo, or undergoing or having undergone gender reassignment. The 1999 Regulations did not amend the meaning
of “man” or “woman” in the SDA
1975 (paras 54-62 of the judgment in FWS).
Whilst this statement is true, this is
not the complete picture. The case of P v S and Cornwall County Council [1996]
was also used to interpret the Gender Directive, which was enacted into UK law through
the Equality Act. So, the provisions of the Equality Act that cover sex
discrimination and gender reassignment were enacted to give effect to EU law,
and it is those provisions that should apply, not the Sex Discrimination Act,
which is largely irrelevant. Furthermore, the case of P v S and Cornwall County Council [1996]
means that discrimination on the grounds of gender reassignment is considered,
under EU law, to be a form of sex discrimination and that as a result of this
case, sex, under EU law is not defined in terms of “man” or “woman” but instead
people are either one sex or the other and people who have undergone gender
reassignment are considered as their legal sex, not their sex at birth.
As most people will never have heard of
the case of P v S and Cornwall County Council [1996] or of any of the other CJEU
caselaw on sex discrimination and gender reassignment, we think it would be
helpful to explain what happened in that case and what the Court of Justice of
the European Union decided in subsequent cases.
P v S and Cornwall County Council
(Case 13/94) [1996] 2 C.M.L.R. 247.
Facts of the case
P, who was
trans, was dismissed from her job after informing her employer of her intention
to undergo a male to female gender reassignment operation. P. brought an action
based on sexual discrimination.
The European Court of Justice was asked to give a
ruling on the following questions:
“(1) Having regard to the
purpose of Directive 76/207 which is stated in Article 1 to be to put into
effect the principle of equal treatment for men and women as regards access to
employment, etc., … does the dismissal of a transsexual for a reason related to
a gender reassignment constitute a breach of the Directive?
(2) Does Article 3 of the
Directive, which refers to discrimination on grounds of sex, prohibit treatment
of an employee on the grounds of the employee's transsexual state?”
The CJEU’s decision in this case
The Court held that:
“[20] Accordingly, the scope
of the directive cannot be confined simply to discrimination based on the fact
that a person is of one or other sex. In view of its purpose and the nature of
the rights which it seeks to safeguard, the scope of the directive is also such
as to apply to discrimination arising, as in this case, from the gender
reassignment of the person concerned.
[21] Such discrimination is
based, essentially if not exclusively, on the sex of the person concerned.
Where a person is dismissed on the ground that he or she intends to undergo, or
has undergone, gender reassignment, he or she is treated unfavourably by comparison
with persons of the sex to which he or she was deemed to belong, before
undergoing gender reassignment.
[22] To tolerate such
discrimination would be tantamount, as regards such a person, to a failure to
respect the dignity and freedom to which he or she is entitled, and which the
Court has a duty to safeguard.”
So, the key points to come out of this case are:
1.
According to the
CJEU’s judgment in this case “the scope of the directive cannot be confined
simply to discrimination based on the fact that a person is of one or the other
sex.” (paragraph 20 of the judgment)
2.
Discrimination on
the grounds of gender reassignment is discrimination on the grounds of
sex.
3.
It confirms that since
1996, when the case of P v S and Cornwall County Council
[1996] was decided, sex has had a certificated sex
reading under EU law, not a biological sex reading.
These
principles have been upheld by the CJEU in subsequent cases, such as the case
of Richards v Secretary of
State for Work and Pensions.
The
case of Richards is a good example of the CJEU’s approach to people who
have gone through gender reassignment. Ms Richards was born on 28 February 1942,
and her birth certificate registered her gender as male. Having been diagnosed
as suffering from gender dysphoria, she underwent gender reassignment surgery
on 3 May 2001.
On 14
February 2002 she applied to the Secretary of State for Work and Pensions for a
retirement pension to be paid as from 28 February 2002, the date on which she
turned 60, the age at which a woman born before 6 April 1950 was eligible to
receive a retirement pension.
In
relation to whether she was entitled to her pension at 60 (on the basis she was
a woman) or at 65 (on the basis of her birth sex) the CJEU held that:
“23.
In accordance with settled case-law, the right not to be discriminated against
on grounds of sex is one of the fundamental human rights the observance of
which the Court has a duty to ensure (see Case 149/77 Defrenne [1978] ECR 1365,
paragraphs 26 and 27, and Case C-13/94 P v S. [1996] ECR I-2143, paragraph 19).
24.
The scope of Directive 79/7 cannot thus be confined simply to discrimination
based on the fact that a person is of one or other sex. In view of its purpose
and the nature of the rights which it seeks to safeguard, the scope of that
directive is also such as to apply to discrimination arising from the gender
reassignment of the person concerned (see, as regards Council Directive
76/207/EEC of 9 February 1976 on the implementation of the principle of equal
treatment for men and women as regards access to employment, vocational
training and promotion, and working conditions (OJ 1976 L 39, p. 0040), P. v S.
, paragraph 20).”
So, as
a matter of EU law, Ms Richards was held to be a woman and therefore entitled
to receive her pension from the age of 60, not 65, under one of the other Equal
Treatment Directives (Directive 79/7).
The
cases of P v S and Cornwall County
Council [1996], K.B v National Health
Service Pensions Agency [2004], C-423/04 Richards v Secretary of
State for Work and Pensions [2006] were all decided
between 1996-2004, so those cases were all brought before the Gender
Recognition Act 2004 came into force.
The
more recent case law relating to sex discrimination and gender reassignment – the
case of MB v Secretary of State
for Work and Pensions (Case 451/16).
This
case is important because:
1) It was
referred to the CJEU by the UK Supreme Court in August 2016, whilst we were
still members of the EU, so the Supreme Court were involved in this case and should
therefore be familiar with it.
2) It is
a case that was determined after the Gender Recognition Act was introduced,
unlike the other caselaw listed above.
M, a transwoman had married while she
was a man. After her gender reassignment surgery, M and her wife continued to
live together as a married couple. M was granted an interim gender recognition
certificate but could only obtain a full certificate if she first applied to
have her marriage annulled. The Gender Recognition Act required people who are
married to divorce or annul their marriage in order for them to be issued with
a Gender Recognition Certificate. This requirement was abolished in December
2014, nine months after the Marriage (Same Sex Couples) Act 2013 permitted
same-sex marriages but was not given retrospective effect.
However, M and her wife did not wish
their marriage to be annulled. When M reached the age of 60, which was the
pensionable age for a woman, she applied for a state pension. Her application
was refused on the basis that, without the certificate, she was still legally a
man and was therefore not entitled to a pension until the age of 65.
M appealed against the refusal of a
state pension.
The
CJEU held in its ruling that:
35 “In
accordance with the Court’s settled case-law, the scope of the
latter directive, in view of its purpose and the nature of the rights which it
seeks to safeguard, is also such as to apply to discrimination arising from
gender reassignment (see, to that effect, judgment of 27 April 2006, Richards,
C‑423/04, EU:C:2006:256,
paragraphs 23 and 24 and the case-law cited). In that regard, although, as it
was noted in paragraph 29 of the present judgment, it is for the Member States
to establish the conditions for legal recognition of a person’s change of gender,
the fact remains that, for the purposes of the application of Directive 79/7,
persons who have lived for a significant period as persons of a gender other
than their birth gender and who have undergone a gender reassignment operation
must be considered to have changed gender.
36 In
the present case, the national legislation at issue in the main proceedings
makes access by persons who have changed gender to a State retirement pension
as from the statutory pensionable age for persons of the acquired gender
subject to, inter alia, the annulment of any marriage into which they may have
entered before that change. By contrast, according to the information in the
file before the Court, that marriage annulment condition does not apply to
persons who have retained their birth gender and are married, who accordingly
may receive a State retirement pension as from the statutory pensionable age
for persons of that gender irrespective of their marital status.
37 It appears, therefore, that that national
legislation treats less favourably a person who has changed gender after
marrying than it treats a person who has retained his or her birth gender and
is married.
38 Such less favourable treatment is based
on sex and may constitute direct discrimination within the meaning of Article 4(1) of Directive
79/7.”
Key
points to come out of the above cases
1) It is
settled case law that discrimination on the grounds of gender reassignment is
sex discrimination. (P v S and Cornwall County
Council [1996], Richards v Secretary of
State for Work and Pensions [2006], MB v Secretary of State
for Work and Pensions [2018].
2)
The scope of the
directive cannot be confined simply to discrimination based on the fact that a
person is of one or the other sex.
3)
Since 1996, when the
case of P v S and Cornwall County Council
[1996] was decided, sex has had a certificated sex
reading as a matter of EU law, not a biological sex reading.
4) As is
clear from Article 2(1)(a) of Directive 2006/54 (the
Recast Equal Treatment Directive), there is direct discrimination based on sex
if one person is treated less favourably on grounds of sex than another person
is, has been or would be treated in a comparable situation.
5) The
rights of trans people to live as their acquired gender do not stem from trans
activists misrepresenting the law for the last thirty years – they come from
the above provisions of EU law and CJEU caselaw. They are important legal
principles that trans people are entitled to rely on. It is worth noting that
whilst the Supreme Court is the top court in the UK, the CJEU is the top court
in Europe, so in the event of a conflict between a decision of the Supreme
Court and a decision of the CJEU, it would normally be the CJEU decision that
would be followed.
Can
the UK Supreme Court depart from this CJEU caselaw? - the two approaches to
this question in the case of Lipton v BA City Flyer [2024]
There
are two possible answers to this question and interestingly they both come from
the same case – the case of Lipton v BA City Flyer [2024]
which was decided by the UK Supreme Court last year. For the Supreme Court, an
important aspect of the case was to lay down a framework that the higher courts
could follow, where the courts were faced with a case where the cause of action
started during the transition period, but the case was only heard post Brexit.
One of
the questions for the Supreme Court was “could the Supreme Court depart from
CJEU caselaw that was decided before Brexit, when the case started during the
transition period?” However, in the specific case of Lipton, none
of the parties were actually asking the Supreme Court to depart from previous
CJEU caselaw, so the answer to that question was, in essence, theoretical, and
involved two separate approaches and answers to that question.
The
first of these approaches was put forward by Lord Lloyd Jones, who argued that
in that situation the Supreme Court would be obliged to follow CJEU caselaw, in
order to give effect to Article 127 and Article 4 of the EU-UK Withdrawal
Agreement. However, his was a minority view.
The
remainder of the Supreme Court Justices argued that yes, they could depart from
previous CJEU caselaw, under Article 6(4) and 6(5) of the EU Withdrawal Act
2018, as amended by the Retained EU Law (Reform and Revocation) Act 2023.
Both
of these arguments are explained in more detail below and then applied to the
case of FWS, in order to establish whether the Supreme Court complied
with either set of rules.
All of
the Supreme Court justices agreed that the law that should be applied was the
law that was in force at the time the cause of action accrued i.e. when the
case was triggered or started. So, applying that to the case of FWS, we
can demonstrate that the Supreme Court, when deciding the case of FWS, should
have applied the law that was in force during the transition period, which was
EU law.
Lord
Lloyd-Jones approach to the question of whether the Supreme Court could depart
from CJEU caselaw, where a case was started during the transition period.
Lord
Lloyd-Jones, between paragraphs 234-243 of the judgment in Lipton,
explained the approach that the Supreme Court should take when deciding cases
that started during the transition period. His was a minority view, but in his
judgment, Lord Lloyd Jones said that:
“238. We have seen (paras 223–226 above) that article
127(1) of the Withdrawal Agreement provides that EU law shall be
applicable to and in the United Kingdom during the transition period, unless
otherwise provided by the Withdrawal Agreement. Article 4(4) provides that
provisions of the Withdrawal Agreement referring to EU law (which would appear
to include article 127) shall in their interpretation and implementation be
interpreted in conformity with the relevant case law of the CJEU handed down
before the end of the transition period.
Article 127(3) provides that during the transition
period the provisions of EU law made applicable by the Withdrawal Agreement
shall produce in respect of and in the United Kingdom the same legal
effects as those which it produces within the EU and its member states,
and this would also appear to be required by article 4(1). These provisions are
given effect within the United Kingdom by section 7A of the 2018 Act which
gives domestic courts within the United Kingdom the power to disapply domestic
legislation, including the 2018 Act, insofar as it is incompatible with the
Withdrawal Agreement.
239. "These provisions strongly suggest that the
power to depart from retained EU case law conferred by section 6(4) of the
2018 Act only applies in cases where the cause of action accrued
after the 31 December 2020. [Bold
added for emphasis]
Consider an appeal coming before the Supreme Court
after the 31st December 2020 where the claimant's cause of action
accrued during the transition period. The defendant invites the court to depart
from a pre-Brexit decision of the CJEU which would, if followed, determine the
matter in favour of the claimant. If the court were to refuse to apply
the relevant CJEU case, there would appear to be at least a serious risk
that the United Kingdom would be in breach of articles 4 and 127 of the
Withdrawal Agreement. [Bold added for emphasis]
First, it would arguably breach article 127(1) read with
article 4(4) which requires judges in the United Kingdom to interpret and
apply the EU law in force in the United Kingdom during the transition period
“in conformity with the relevant case law of the [CJEU] handed down before
the end of the transition period”. Secondly, it would arguably breach
article 127(1) read with article 127(3) and article 4(1) because the EU law
which was supposed to apply during the transition period would not be producing
the same legal effects within the United Kingdom as within member states. If
the power to depart applied in such a case, it would appear to create the
prospect that there would be a different outcome for an alleged breach of
EU law arising in the United Kingdom during the transition period compared
with a materially identical alleged breach arising in a member state in
the same period. It is difficult to see how this could be reconciled with
the requirements of the Withdrawal Agreement. (See Secretary of State for
Work and Pensions v AT [2024] KB 633, considered at para 226 above.)"
The
approach taken by the other Supreme Court justices in the case of Lipton,
on the question of whether the Supreme Court could depart from previous CJEU
decisions in relation to cases that started during the transition period.
The
majority of the Supreme Court took the view that the Supreme Court and other
higher courts (e.g. the Court of Appeal) can depart from retained EU case law
(i.e. judgments of the CJEU that were handed down prior to Brexit like P v S and Cornwall County
Council [1996] etc, even in cases where causes of action concerned pre-Brexit
events, as in the case of FWS.
Their
justification for this approach rested on section 6 of the EU Withdrawal Act
2018.
Section
6(3) of the EU Withdrawal Act 2018 says:
“Any
question as to the validity, meaning or effect of any assimilated EU law is to
be decided, so far as that law is unmodified on or after 31st December 2020 and
so far as they are relevant to it— (a)in accordance with any assimilated case
law.”
Section
6(4)(a) goes on to say that “the Supreme Court is not bound by any
assimilated EU case law.”.
However,
the Supreme Court can only depart from previous CJEU caselaw like the caselaw
cited above if ‘it applies the same test as it would apply in deciding
whether to depart from its own case law’, which lawyers know as the 1966
Practice Statement. Before 1966, if the House of Lords had made an incorrect
decision then they were stuck with it – they couldn’t change it. However, after
1966, the top court in the UK was allowed to depart from previous decisions “when
it considers it right to do so”. This is the test found in the section 6(5)
of the EU Withdrawal Act which says:
“In
deciding whether to depart from any assimilated EU case law by virtue of
subsection (4)(a) the Supreme Court must apply the same test as
it would apply in deciding whether to depart from its own case law.”
Now,
the Retained EU Law (Revocation and Reform) Act 2023 was supposed to make it a
lot easier for the courts to depart from previous CJEU rulings. However, on the
18th September 2024 Labour revoked those
provisions, as part of their EU-UK reset. This meant that when the Supreme
Court hearing for FWS took place in November 2024 the position was (if the
Supreme Court wanted to depart from previous CJEU caselaw like P v S and Cornwall County
Council [1996] etc) then they were
required to apply the same tests that they would apply if they were looking to
depart from their own case law, as explained above. So, did they meet the
requirements of that test?
In
January 2025, the Court of Appeal came out with a useful summary of when the
higher courts can depart from previous CJEU caselaw, in a case called Merck Serono v
Comptroller-General of Patents [2025]. The first test
that the Supreme Court would have to meet in order to depart from previous CJEU
caselaw is it would have to show that the decisions in P v S and Cornwall County
Council [1996], Richards v Secretary of
State for Work and Pensions [2006] and MB v Secretary of State
for Work and Pensions [2018] were wrongly decided by the CJEU.
If the
decisions of the CJEU were not wrong in these cases, then the Supreme Court
cannot depart from them and is therefore required to apply the principles found
in those cases.
This
was confirmed in the case of Merck Serono,
where at paragraph 18 the court said:
“the
starting point must be to examine the criticisms levelled at the assimilated EU
case law to see if they are justified. If not then the application of the
Practice Statement does not arise.”
Birss
LJ suggested that, first, a litigant urging the court to depart from assimilated
case law must demonstrate that “the criticisms levelled at the assimilated
EU case law […] are justified”. If they are not, “then the application
of the Practice Statement does not arise”.
So,
did For Women Scotland, in their written arguments to the Supreme Court,
criticise the decisions in in P v S and Cornwall County
Council [1996], Richards v Secretary of
State for Work and Pensions [2006] and MB v Secretary of State
for Work and Pensions [2018] and show that the CJEU had wrongly decided
these cases? No, they did not argue that. All they say in their written submissions to
the Supreme Court at page 7, in relation to the case of P v S and Cornwall County
Council [1996] is:
“38.
While it [the CJEU in Case C-13/94 P v S and Cornwall County Council
ECLI:EU:C:1996:170 [1996] ECR I-2143 [1996] ICR 795] recognised that
discrimination on the basis of gender reassignment was most likely to be sex
discrimination, neither it nor Chief Constable, West Yorkshire Police v A (No
2) [2004] UKHL 21 [2005] 1 AC 51 which anticipated the Gender Recognition Act
2004, is authority for the proposition that a transgender person possesses the
protected characteristic of the sex in which they present. These cases do not
vouch the proposition that sex and gender reassignment are to be conflated or
combined, particularly in light of subsequent legislation on the matter in the
form of the 2010 Act which maintained the distinct categories of protected
characteristics, and did so in the knowledge that the circumstances in which a
person might acquire a gender recognition certificate under the 2004 Act were
limited.”
So,
For Women Scotland were not arguing that the decision in P v S and Cornwall County
Council was wrongly decided by the CJEU; instead, they
argued that in their view this case isn’t ‘authority for the proposition
that a transgender person possesses the protected characteristic of the sex in
which they present.’(Other views are available). So, FWS did
not argue that the decision in P v S was wrongly decided by the CJEU and
nor did they invite the Supreme Court to depart from it.
This
is confirmed by a procedural point. When a party applies to the Supreme Court
to have a case heard, they have to specify in their application whether they
are planning on inviting the Supreme Court to depart from previous CJEU
caselaw. If a claimant is looking to argue that the Supreme Court should depart
from previous CJEU caselaw, then the Supreme Court will convene an extended
panel of seven or even nine judges to hear the case. Only five Supreme Court
Justices heard the case of FWS, so therefore it would appear that For Women
Scotland were not inviting the Supreme Court to depart from the CJEU decisions
in C-13/94 P v S and Cornwall County
Council [1996], C-423/04 Richards v Secretary of
State for Work and Pensions [2006] and/or C-451/16 MB v Secretary of State
for Work and Pensions [2018].
For
Women Scotland also did not mention in their written submissions the cases of Richards v Secretary of
State for Work and Pensions [2006] and MB v Secretary of State
for Work and Pensions [2018] so one has to presume
that they also considered these cases to be properly decided. So, can the
Supreme Court justify departing from the line of authority established in the
cases of P v S and Cornwall County
Council[1996], Richards v Secretary of
State for Work and Pensions [2006] and MB v Secretary of State
for Work and Pensions [2018]?
At
paragraph 59 in the judgment relating to Merck Serono, Lord
Justice Arnold confirmed that:
“it
remains the will of Parliament that legislation should continue to be
harmonised with that of the EU. In those circumstances, the UK courts should
continue to interpret the legislation in harmony with the Court of Justice
unless convinced that the Court of Justice’s interpretation is wrong.”
So, did the
Supreme Court argue in its judgment that the CJEU interpretation in the case of
P v S and Cornwall County
Council [1996] was wrongly decided by the CJEU? All the
Supreme Court said in relation to that case in the FWS judgment was:
“55.
In P v S and Cornwall County Council (Case C-13/94) [1996] ICR 795, [1996] ECR
I-2143 (“P v S”) the European Court of Justice considered the scope of the
Equal Treatment Directive, that is Council Directive 76/207/EEC (OJ 1976 L39 p
40) in the context of alleged discrimination connected to gender reassignment.
The applicant (a biological male employee) was dismissed by Cornwall County
Council after telling her employer that she intended to undergo gender
reassignment surgery. She complained of unlawful discrimination on the grounds
of her sex. The Judge Rapporteur recorded that the industrial tribunal “found
that there was no remedy under the Sex Discrimination Act 1975, the applicable
United Kingdom statute, since English law took cognisance only of situations in
which men or women were treated differently because they belonged to one sex or
the other, and did not recognise a transsexual condition in addition to the two
sexes. Under English law, the applicant was at all times a male” (para 7). The
Court at para 18 held that the Directive was “simply the expression, in the
relevant field, of the principle of equality, which is one of the fundamental
principles of Community law”. The right not to be discriminated against on
grounds of sex was, the Court said, a fundamental human right and accordingly
the Directive also applied to discrimination arising from gender reassignment
(para 20).
The
Supreme Court have correctly cited the key principle that came out of the case
of P v S and Cornwall County
Council [1996] – that discrimination on the grounds of gender
reassignment is discrimination on the grounds of sex, but they did not apply
those principles to the case of FWS. Nor do they appear to recognise
that the provisions of the various Equal Treatment Directives were given effect
in UK law via the Equality Act 2010. They do not mention the other key cases at
all. There is no indication in the judgment that they are of the view that the
CJEU’s interpretation in any of those cases was wrongly decided, and nowhere in
the judgment in FWS have they said so.
Therefore,
in the absence of any statement to the contrary, the presumption must be that
the Supreme Court was convinced that the CJEU decisions in P v S and Cornwall County
Council [1996], Richards v Secretary of
State for Work and Pensions [2006],
and MB v Secretary of State
for Work and Pensions [2018] were correctly decided.
Consequently,
if the Supreme Court does not consider that the CJEU’s interpretation was
wrong, then the 1966 Practice Statement does not apply and they are legally
required, under s6(3) and 6(5) of the EU Withdrawal Act to interpret the
Equality Act in accordance with the principles derived from the above-mentioned
CJEU caselaw. Which they did not do in this case. The decision in FWS
directly conflicts and departs from this CJEU caselaw, without giving any
justification for doing so. Premise 12 of the judgment in FWS states
that “Gender reassignment and sex are separate bases for discrimination and
inequality” which runs completely contrary to what the CJEU has previously
decided in the above cases. The CJEU has consistently held that discrimination
on the grounds of gender reassignment is discrimination on the grounds of sex;
they are not separate bases for discrimination, they are both aspects of sex discrimination.
From an EU perspective, this is settled law.
Therefore,
the Supreme Court has not complied with s6 of the EU Withdrawal Act 2018. S6(3) specifies that
“Any
question as to the validity, meaning or effect of any assimilated EU law (such
as the Equality Act) is to be decided, so far as that law is unmodified on
or after 31st December 2020 and so far as they are relevant to it— (a)in
accordance with any assimilated case law.”
While
the Supreme Court is not bound by pre-Brexit CJEU caselaw (under s6(4) of the
EU Withdrawal Act 2018), if it wants to depart from previous CJEU caselaw, then
it must apply the same test as it would apply in deciding
whether to depart from its own case law,” (according to s6(5) of the EU
Withdrawal Act 2018) which it hasn’t done.
Applying
Lord Lloyd Jones approach to the case of FWS, the answer to the question
“Can the Supreme Court depart from all of the above, trans supportive caselaw”,
would be no because:
1) The
case started during the transition period.
2) Article
127(1) of the Withdrawal Agreement provides that EU law shall be
applicable to and in the United Kingdom during the transition period.
3) Article
4(4) provides that provisions of the Withdrawal Agreement referring to EU law
shall in their interpretation and implementation be interpreted in conformity
with the relevant case law of the CJEU handed down before the end of the
transition period. Therefore, on that basis, the UK Supreme Court should have
interpreted the Equality Act 2010 in conformity with the cases of P v S and Cornwall County
Council, Richards v Secretary of
State for Work and Pensions and MB v Secretary of State
for Work and Pensions described above.
4) Article 127(3) provides that during the
transition period the provisions of EU law made applicable by the Withdrawal
Agreement shall produce in respect of and in the United Kingdom the same legal
effects as those which it produces within the EU and its member states,
and this would also appear to be required by article 4(1) of the Withdrawal
Agreement. The judgment in the case of FWS would not be replicated in an
EU Member State, as the judgment in FWS conflicts with EU law, so the
Supreme Court is arguably in breach of this requirement.
5) Lord
Lloyd Jones therefore concludes that these provisions strongly suggest that the
power to depart from retained EU case law conferred by section 6(4) of the
EU Withdrawal Act 2018 only applies in cases where the cause of action
accrued after the 31 December 2020. In the case of FWS, the cause of
action took place in May/June 2020, therefore, on that basis, the UK Supreme
Court, in relation to the case of FWS, should not have departed from the
key CJEU cases described above and instead should have applied the certificated
sex principles that flow from those CJEU decisions, when interpreting the
Equality Act 2010, and given a ruling that complied with that caselaw.
6) In his
judgment in the case of Lipton, Lord
Lloyd Jones gives an example of the problems that the UK Supreme Court could
trigger if it departed from CJEU caselaw, in relation to a case that started
before the 31 December 2020, like the case of FWS. He says:
“Consider
an appeal coming before the Supreme Court after the 31st
December 2020 where the claimant's cause of action accrued during the
transition period. The defendant invites the court to depart from a pre-Brexit
decision of the CJEU which would, if followed, determine the matter in favour
of the claimant. He concludes:
“If
the court were to refuse to apply the relevant CJEU case, there
would appear to be at least a serious risk that the United Kingdom would
be in breach of articles 4 and 127 of the Withdrawal Agreement.” [bolded
for emphasis]
Application
of the alternative method of analysis and conclusion
We
believe that Lord Lloyd Jones analysis is correct, and that the UK Supreme
Court, by refusing to apply the relevant CJEU caselaw in the case of FWS,
has created a serious risk that the UK is in breach of Articles 4 and 127 of
the Withdrawal Agreement, on the basis that:
(i)
The Supreme Court has arguably breached article
127(1) read with article 4(4) which requires judges in the United Kingdom to
interpret and apply the EU law in force in the United Kingdom during the
transition period “in conformity with the relevant case law of the [CJEU]
handed down before the end of the transition period”.
(ii)
Secondly, the Supreme Court has arguably
breached, in the specific case of FWS, article 127(1) read with article
127(3) and article 4(1) because EU law, which was supposed to apply during the
transition period would not be producing the same legal effects within the
United Kingdom as within member states. If the power to depart applied in such
a case, it would appear to create the prospect that there would be a different
outcome for an alleged breach of EU law arising in the United Kingdom
during the transition period compared with a materially identical alleged
breach arising in a member state in the same period. It is difficult to
see how this could be reconciled with the requirements of the Withdrawal
Agreement. This point was discussed at paragraph 226 of Lipton, where
it was pointed out that in the case of AT v Secretary of State
for Work and Pensions [2023] EWCA Civ 1307 Green LJ
observed at paragraph 85 that Article 4(1) of the EU-UK Withdrawal Agreement is
‘on its face a mandatory, outcome driven rule: it requires
that the provisions of the [Withdrawal Agreement] produce the same outcome in
the UK and the EU Member States.”
Therefore,
under this analysis, the UK Supreme Court in the case of FWS has refused
to apply the relevant CJEU caselaw (P v S and Cornwall County
Council [1996] etc) which it should have done, and as
a consequence the UK is arguably in breach of the above provisions of the
Withdrawal Agreement.
Therefore,
in relation to the question, can the Supreme Court depart from the principles
established by the previous CJEU cases of P v S and Cornwall County
Council [1996] Richards v Secretary
of State for Work and Pensions [2006] and MB v Secretary of State
for Work and Pensions [2018] then either:
1. Lord
Lloyd Jones analysis was correct, and the UK, via the decision of the Supreme
Court in FWS, has breached Articles 4 and 127 of the EU-UK Withdrawal
Agreement, by not interpreting and applying the EU law in force in the
United Kingdom during the transition period “in conformity with the
relevant case law of the [CJEU] handed down before the end of the
transition period” and nor have they produced “the same legal effects within
the United Kingdom as within member states”, or
2. The
alternative view put forward by the majority of the Supreme Court justices in
the case of Lipton is
correct, and the Supreme Court has the power to depart from CJEU caselaw that
was decided before Brexit, but only if they can show that the decisions in P v S and Cornwall County
Council [1996], Richards v Secretary of
State for Work and Pensions [2006] and MB v Secretary of State
for Work and Pensions [2018] were wrongly decided
by the CJEU. They haven’t shown that, so therefore their decision to depart
from the above cases and not apply them cannot be justified.
It is
worth noting that in 2022 the European Commission issued an infringement action
against the UK Supreme Court, for failing to interpret and apply EU law
correctly during the transition period, in breach of Article 127(1) of the
EU-UK Withdrawal Agreement. In a scathing judgment, the
CJEU agreed that the UK Supreme Court had not applied EU law correctly, in
relation to cases that started during the transition period or prior to Brexit.
Therefore, the Supreme Court has previously been held to have infringed EU law
and the applicable provisions of the EU-UK Withdrawal Agreement, in relation to
cases that started during the transition period, or prior to Brexit. There
appears to be substantial confusion regarding how the EU-UK Withdrawal
Agreement is expected to apply in the UK, in relation to cases that started
during the transition period. Is Lord Lloyd Jones analysis the correct one, or
not? It would be helpful to have this question clarified, which concerns the
interpretation of the EU-UK Withdrawal Agreement.
Therefore,
while it is true that the 1999 Regulations, enacted in response to P v S and Cornwall County
Council [1996], created a new
protected characteristic of a person intending to undergo, or undergoing or
having undergone gender reassignment, that is not the complete picture. The
case of P v S and Cornwall County
Council, when interpreted in line with the Gender Directive, was
also incorporated into the provisions of the Equality Act that related to sex
discrimination, pregnancy, maternity and gender reassignment. Therefore, it is
irrelevant that the 1999 Regulations did not amend the meaning of “man” or
“woman” in the SDA 1975, because the Gender Directive did
and they both had their roots in the case of P v S and Cornwall County
Council [1996].
Furthermore,
the cases of P v S
and Cornwall County Council [1996], Richards v Secretary of
State for Work and Pensions [2006] and MB v Secretary of State
for Work and Pensions [2018] form part of a long line of
authority by the CJEU. Given that the case of FWS started during the
transition period, one of the key questions is whether the Supreme Court can
depart from these decisions? Under Lord Lloyd Jones analysis the answer to that
question is no, and even if the alternative analysis is adopted, the Supreme
Court, in the case of FWS, does not appear to have identified that these
decisions were wrongly decided by the CJEU, in which case the Supreme Court is
required to uphold and follow those decisions, and should have decided the case
of FWS in line with those principles.
4) Premise
Four: The GRA 2004 did not amend the meaning of “man” and “woman” in the SDA
1975 (para 80 of the judgment).
Whilst
it is true that the GRA 2004 did not amend the meaning of “man” and “woman” in
the Sex Discrimination Act 1975, the Sex Discrimination Act 1975 was amended by
the Gender Directive.
Page
177 of the Discrimination Law Review
A framework for fairness; Proposals for a Single Equality Bill for Great
Britain explains that:
Definition
of indirect discrimination
B.8
The Gender Directive defines indirect discrimination as:
“where
an apparently neutral provision, criterion or practice would put persons of one
sex at a particular disadvantage compared with persons of the other sex, unless
that provision, criterion or practice is objectively justified by a legitimate
aim, and the means of achieving that aim are appropriate and necessary”.
B.9
A very similar definition of indirect discrimination is already used in the Sex
Discrimination Act in relation to employment and vocational training, as a
result of amendments made by the Employment Equality (Sex Discrimination)
Regulations 2005, which implemented the Equal Treatment Amendment Directive.
The definition in section 1(2)(b) of the Sex Discrimination Act is as follows:
“a
person discriminates against a woman if he applies to her a provision,
criterion or practice which he applies or would apply equally to a man, but
(i)
which puts or would put women at a particular disadvantage when compared with
men,
(ii)
which puts her at that disadvantage, and
(iii)
which he cannot show to be a proportionate means of achieving a legitimate
aim”.
B.10
In order to implement the Gender Directive, we intend to amend the Sex
Discrimination Act so that the above definition of indirect discrimination,
which currently applies in relation to employment and vocational training, also
applies to the field of goods, facilities or services and premises.
As we
have previously established, the Gender Directive was
supposed to be implemented by the 21st December 2007, and as the
Equality Bill process had only just started, the Labour Government of the day
implemented the Gender Directive, as a
temporary measure, by amending the Sex Discrimination Act using the Sex
Discrimination (Amendment of Legislation) Regulations 2008 which came into
force on 6 April 2008.
The
Government confirmed, in
the document “The Equality Bill – Government response
to the consultation at page 188 that:
“These
Regulations amended both the Sex Discrimination Act 1975 and the Sex
Discrimination (Northern Ireland) Order 1976.
16.3
The Gender Directive implements the principle of equal treatment between men
and women in relation to the access to and supply of goods and services. The Sex
Discrimination Act and the Sex Discrimination Order, which apply to both women
and men, are the main pieces of legislation in Great Britain and Northern
Ireland respectively which prohibit certain kinds of discrimination on the
ground of sex, including gender reassignment.
16.4
In some respects the Sex Discrimination Act and Sex Discrimination Order
already provided wider protection than that required by the Gender Directive
and already went a long way towards meeting the United Kingdom’s obligations
under it.
However,
some amendments had to be made to the Act and the Order to make them compatible
with the Directive.
One of
those amendments that needed to be made to the Sex Discrimination Act to bring
it in line with the Gender Directive was
to amend the definition of indirect discrimination and dispense with the terms
“man” and “woman”. The Sex
Discrimination Act was therefore amended to reflect this gender-neutral
definition, so the Gender Directive
dispensed with the historical terms “men” and “women”, which were found in the
Sex Discrimination Act, and replaced that definition with a gender-neutral
reference regarding provisions, criterion or practices that “put persons of
one sex at a particular disadvantage compared with persons of the other sex.”. The
Sex Discrimination (Amendment of Legislation) Regulations was used to bring in
the changes required by the Gender Directive by
the deadline for transposition, and then these changes were then incorporated
into the Equality Act. Once the Equality Act 2010 came into force the Sex
Discrimination (Amendment of Legislation) Regulations were repealed.
The
current definition of indirect discrimination in the Equality Act 2010 is
gender neutral; the terms “man” and “woman” are not used at all. S19 of the
Equality Act 2010 defines indirect discrimination as follows:
(1)A
person (A) discriminates against another (B) if A applies to B a provision,
criterion or practice which is discriminatory in relation to a relevant
protected characteristic of B's.
(2)
For the purposes of subsection (1), a provision, criterion or practice is
discriminatory in relation to a relevant protected characteristic of B's if—
(a)A
applies, or would apply, it to persons with whom B does not share the
characteristic,
(b)it
puts, or would put, persons with whom B shares the characteristic at a
particular disadvantage when compared with persons with whom B does not share
it,
(c)it
puts, or would put, B at that disadvantage, and
(d)A
cannot show it to be a proportionate means of achieving a legitimate aim.
As the
gender-neutral definitions outlined above are different from the terms “man”
and “woman” used originally in the Sex Discrimination Act 1975, those gender
specific terms have been repealed, and are therefore irrelevant for the
purposes of interpreting the Equality Act, as the definition of sex found in
the Equality Act is not based on the Sex Discrimination Act but on the gender
neutral definition found in the Gender Directive.
Furthermore,
as the Equality Act gave effect to the Gender Directive while
we were members of the EU, it is worth bearing in mind that in the event of a
conflict between the gender-neutral definition of sex found in the Gender Directive, and
the definition of sex found in the Sex Discrimination Act 1975, the Gender Directive would
have been followed as a matter of EU law as it would have had primacy.
So, if
the Equality Act was interpreting in conformity with EU law, then the
gender-neutral definition of sex in the Directive should have been followed.
The Supreme Court should not have followed the repealed definition of sex found
in the Sex Discrimination Act 1975, which hasn’t been in force since the 1st
October 2010, when the Equality Act came in. The Gender Directive
superseded the Sex Discrimination Act, and the gender-neutral definition of sex
has been in force for the last 15 years.
Therefore,
it is illogical for the Supreme Court to
try and argue that the fact that the GRA 2004 did not amend the meaning of
“man” and “woman” in the SDA 1975 is at all relevant, as they should have
interpreted the Equality Act in line with the Gender Directive
(which also came out in 2004) and EU law, not in line with the Sex
Discrimination Act 1975, which was repealed by the Equality Act and hasn’t been
law since 2010.
5) Premise
5: Section 9(3) of the GRA 2004 disapplies the rule in section 9(1) of that Act
where the words of legislation, enacted before or after the commencement of the
GRA 2004, are on careful consideration interpreted in their context and having
regard to their purpose to be inconsistent with that rule. It is not necessary
that there are express words disapplying the rule in section 9(1) of the GRA
2004 or that such disapplication arises by necessary implication as the
legality principle does not apply (paras 99-104).
What
the Gender Recognition Act says is:
“S9(1)
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).
S9(3) Subsection (1) is subject to provision made
by this Act or any other enactment or any subordinate legislation.”
On
that basis, we could interpret s9(1) of the Gender Recognition Act in line with
the Gender Directive and
its certificated sex reading, following the case of P v S and Cornwall County
Council [1996]. The Gender Directive is an
enactment, so it could certainly be argued as an alternative that the Equality
Act and the GRA 2004 should be interpreted using the Gender Directive, read
in the light of the case of P v S and Cornwall County
Council [1996], rather than the Sex Discrimination
Act. There is nothing in s9(3) of the GRA 2004 that says that the GRA can only
be interpreted by the Sex Discrimination Act and given the fact that the Sex
Discrimination Act is broadly irrelevant when interpreting the Equality Act it
would make far more sense for the Equality Act to be interpreted according to
the Gender Directive.
It is
a moot point whether it could reasonably be said that the Equality Act 2010
“made provision” for the whole Equality Act to “enact out” of s. 9(1) of the
Gender Recognition Act 2004, by invoking s9(3) of the Gender Recognition Act.
Whilst it is arguable that there are some sections in the Equality Act which
can more sensibly be read in a “biological” sense, it doesn’t follow from that
the entirety of the Equality Act 2010 shouldn’t be subject to Article 9(1) of
the GRA. The Court seems to have read
“subject to provision made” as if it was the same as “unless the contrary
intention appears”, without any obvious justification.
It's
also worth making the point the Gender Recognition Act 2004 was an act that was
created in response to the European Court of Human Rights finding that the UK
had breached its obligations under human rights law in not providing a
mechanism whereby trans people could legally transition. The GRA was created to
correct that lack and so created new rights for trans people and enabled trans
people to apply for a GRC. It seems unlikely, when drafting the GRA 2004, that
the drafters expected a court to invoke s9(3) of the GRA to the Sex
Discrimination Act 1975, which was created at a point in time when trans rights
didn’t exist. It is deeply problematic that the Supreme Court has reject the
submission that the carve out in section 9(3) only operates in respect of
future legislation and not legislation, such as the SDA 1975, which was already
enacted at the date when the GRA 2004 was enacted. If the Supreme Court
considers it can do that, then on that basis, a court could just strip away all
rights by just comparing existing rights to an act that was passed before those
rights existed.
There
is a very long-standing legal maxim that a legislative enactment ought to be
prospective, not retrospective, in its operation. So, the core rule is that
legislation or the interpretation of legislation can change the law going
forward, but not retrospectively. According to Brooms Legal Maxims:
“Every
statute which takes away or impairs a vested right acquired under existing
laws, or creates a new obligation, imposes a new duty, or attaches a new
disability, in respect of transactions or considered already past, must be
deemed retrospective in its operation and opposed to sound principles of
jurisprudence.”
The
prohibition against retrospective application is also found in the European
Convention on Human Rights.
The
retrospective application of s9(3) of the GRA 2004 to the Equality Act is
particularly unconscionable given that if the case of FWS had been heard between
2004, when the GRA 2004 and the Gender Directive 2004
became law, and before 2008, when the SDA 1975 still applied and sex under the
SDA was defined in terms of “man” and “woman”, then those provisions of the Sex
Discrimination Act 1975 would have been declared incompatible with the Gender Directive and
the GRA 2004, and the courts would have been compelled to come to a conforming
interpretation in accordance with EU law. This would have resulted in the
biological reading of sex found in the Sex Discrimination Act 1975 being set
aside.
6) Premise
6: The context in which the EA 2010 was enacted was therefore that the SDA 1975
definitions of “man” and “woman” referred to biological sex and trans people
had the protected characteristic of gender reassignment.
This
premise is quoted in the summary of the Supreme Courts argument in FWS,
which is found at paragraph 265, but there are no references in the judgment
itself to this point.
In any
case, the context in which the Equality Act 2010 was enacted is not that the
SDA 1975 definitions of “man” and “woman” referred to biological sex and trans
people had the protected characteristic of gender reassignment. Instead, the context in which the Equality
Act was enacted is:
-
The Sex Discrimination Act 1975 was enacted in
1975. It did define sex in terms of “man” and “woman”.
-
The case of P v S was
decided in 1996.
-
The Gender Directive
became law in 2004 and had to be enacted into UK law by the 21 December 2007.
-
When the Equality Act was being drafted, one of
the reasons for its creation was to give effect to the Gender Directive. It
was also recognised by the Labour Government of the day that the provisions of
the Gender Directive,
taken together with the case of P v S and Cornwall County
Council [1996], meant that the UK Government were
required to outlaw discrimination on the grounds of gender reassignment as an
aspect of discrimination on the grounds of sex. Therefore, the definition of
sex in the Sex Discrimination Act was amended to a more gender-neutral, trans
inclusive definition of sex, in line with settled CJEU caselaw.
-
As the Equality Act was not going to be ready
by the 21st December 2007, the government enacted the provisions of
the Gender Directive by
amending the Sex Discrimination Act 1975, to bring it in line with the
gender-neutral provisions of the Gender Directive. This
was done via the Sex Discrimination (Amendment of Legislation) Regulations 2008
which came into force on 6 April 2008.
-
The provisions of the Gender Directive relating
to sex discrimination, gender reassignment, maternity and pregnancy, were then
rolled into the Equality Act 2010. Schedule 27 repealed the entirety of the Sex
Discrimination (Amendment of Legislation) Regulations 2008, once the Equality
Act came into force.
-
The Sex Discrimination Act 1975 was repealed
once the Equality Act 2010 came into force, as it was no longer relevant. The
provisions of the Gender Directive, taken
with CJEU caselaw, defined sex using a certificated sex reading; under the
Directive people are either one sex or the other, they are not referred to as
men and women. This gender-neutral
definition of sex therefore applied from the 6th April 2008, when
the Sex Discrimination (Amendment of Legislation) Regulations came into force
and these provisions were then rolled into the Equality Act 2010.
-
Therefore, the references to “men” and “women”
found in the Sex Discrimination Act were over-ridden by the Gender Directive and
superseded those earlier definitions of sex.
The
Equality Act was therefore drafted with a trans inclusive definition of sex
built in from the very beginning.
We can see this by looking in detail at some
specific provisions. For example, according to the Discrimination Law Review, the Gender Directive
defines indirect discrimination as:
“where an apparently
neutral provision, criterion or practice would put persons of one sex at a
particular disadvantage compared with persons of the other sex, unless that
provision, criterion or practice is objectively justified by a legitimate aim,
and the means of achieving that aim are appropriate and necessary”.
It is worth noting that this definition
does not mention men and women at all – it is gender neutral, reflecting the
approach taken in P v S and Cornwall County Council [1996]
and subsequent CJEU caselaw and it – quite deliberately – doesn’t refer to
biological sex, just persons of the other sex. The same approach is also seen in section 11
of the Equality Act, which defines sex as:
“In relation to the
protected characteristic of sex—
(a) a reference to a
person who has a particular protected characteristic is a reference to a man or
to a woman.
(b) a reference to
persons who share a protected characteristic is a reference to persons of the
same sex.”
The Equality Act definition of sex
reflects the judgment in P v S and Cornwall County Council [1996], which says:
“[20] Accordingly, the scope
of the directive cannot be confined simply to discrimination based on the fact
that a person is of one or other sex. In view of its purpose and the nature of
the rights which it seeks to safeguard, the scope of the directive is also such
as to apply to discrimination arising, as in this case, from the gender
reassignment of the person concerned.
Therefore, sex, as a matter of EU law, is defined
on the basis that people can be either men or women, but people who have
undergone gender reassignment are deemed to be the sex that they have
transitioned to. This point is exactly replicated in the definition of sex
found in the Equality Act 2010. If a person has the protected characteristic of
gender reassignment, and they are a transwoman, then under the Gender
Directive,
interpreted in line with the case of P v S and Cornwall County Council
[1996], and the Equality Act they are a woman. The
EU applies a certificated sex reading to sex not a biological sex approach and
has long held that discrimination on the grounds of gender reassignment constitutes
discrimination on the grounds of sex. This can be seen in paragraph 21 of the
judgment in P v S and Cornwall County Council
[1996], which held that discrimination on the
grounds of gender reassignment is based
“essentially if not
exclusively, on the sex of the person concerned. Where a person is dismissed on
the ground that he or she intends to undergo, or has undergone, gender
reassignment, he or she is treated unfavourably by comparison with persons of
the sex to which he or she was deemed to belong, before undergoing gender
reassignment.”
The Discrimination Law Review went on to say, at page 177, that:
‘a very similar
definition of indirect discrimination is already used in the Sex Discrimination
Act in relation to employment and vocational training, as a result of
amendments made by the Employment Equality (Sex Discrimination) Regulations
2005, which implemented the Equal Treatment Amendment Directive. The definition
in section 1(2)(b) of the Sex Discrimination Act is as follows:
“a person discriminates
against a woman if he applies to her a provision, criterion or practice which
he applies or would apply equally to a man, but
(i) which puts or would put women at a
particular disadvantage when compared with men,
(ii) which puts her at that disadvantage, and
(iii) which he cannot show to be a proportionate
means of achieving a legitimate aim”.
And that:
“In order to implement
the Gender Directive, we intend to amend the Sex Discrimination Act so that the
above definition of indirect discrimination, which currently applies in
relation to employment and vocational training, also applies to the field of
goods, facilities or services and premises.
Which is what they did – the current
definition of indirect discrimination found in the Equality Act doesn’t refer
to biological sex. It says:
(1)A person (A)
discriminates against another (B) if A applies to B a provision, criterion or
practice which is discriminatory in relation to a relevant protected
characteristic of B's.
(2) For the purposes of
subsection (1), a provision, criterion or practice is discriminatory in
relation to a relevant protected characteristic of B's if—
(a)
A
applies, or would apply, it to persons with whom B does not share the
characteristic,
(b)
it
puts, or would put, persons with whom B shares the characteristic at a
particular disadvantage when compared with persons with whom B does not share
it,
(c)
(c)it
puts, or would put, B at that disadvantage, and
(d)
A
cannot show it to be a proportionate means of achieving a legitimate aim.”
From this, it is clear that the Supreme
Courts contextual understanding of the background to the Equality Act that “The
context in which the EA 2010 was enacted was therefore that the SDA 1975
definitions of “man” and “woman” referred to biological sex and trans people
had the protected characteristic of gender reassignment” demonstrates a
lack of awareness and understanding of the context in which the Equality Act
was drafted.
This premise, and premise 9, go to the
heart of the judgment in FWS. If these premises are factually correct and
decided in accordance with all relevant facts and law, then the conclusion in FWS
is more likely to be justified. However, both of these premises are based on
factually incorrect assumptions, that do not reflect the EU law background to
the Equality Act, and nor do they acknowledge the amendments made to both the
Sex Discrimination Act 1975 by the Sex Discrimination (Amendment of
Legislation) Regulations 2008 and the Equality Act 2010, in order to give
effect to EU law.
7)
Premise
7: The EA 2010 is an amending and consolidating statute. It enacts group- based
protections against discrimination on the grounds of sex and gender
reassignment and imposes duties of positive action (paras 113, 142-149 of the
judgment).
The Equality Act is an amending and consolidating
statute, but it doesn’t just amend and consolidate UK law, it also amends,
consolidates and gives effect to EU law.
Paragraph 113 of the FWS judgment identifies
that:
“The Equality Act is both an amending and
consolidating statute which was intended, among other things, to “reform and
harmonise equality law and restate the greater part of the enactments relating
to discrimination and harassment related to certain personal characteristics”
(long title). It consolidated and reformed the Equal Pay Act 1970, the SDA
1975, the Race Relations Act 1976, the Disability Discrimination Act 1995 and
other (primarily secondary) legislation addressing unlawful discrimination in
other specific areas (religion or belief, sexual orientation, and age) to
strengthen the law in order to support greater progress on equality.”
While it is true that the Equality Act amended all of
those things, the judgment fails to mention that it also amends UK law to give
effect to the Equal Treatment Directives, which includes the Gender Directive (Directive
2004/113) and the Recast
Equal Treatment Directive
(Directive 2006/54), even though this is specifically mentioned in the Explanatory
notes to the Equality Bill, at
page 2, where the notes identify the main European Directives affecting
domestic discrimination legislation as:
·
Council Directive
75/117/EEC on the approximation of the laws of the Member States relating to
the application of the principle of equal pay for men and women.
·
Council Directive
76/207/EEC on the implementation of the principle of equal treatment for men
and women as regards access to employment, vocational training and promotion,
and working conditions, as amended by the European Parliament and Council
Directive 2002/73/EC.
·
Council Directive
2000/43/EC implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin (the Race Directive).
·
Council Directive
2000/78/EC establishing a general framework for equal treatment in employment
and occupation.
·
Council Directive
2004/113/EC (the Gender Directive) implementing the principle of equal
treatment between men and women in the access to and supply of goods and
services.
·
European Parliament and
Council Directive 2006/54/EC (the Recast Equal Treatment Directive) on the
implementation of the principle of equal opportunities and equal treatment of
men and women in matters of employment and occupation.
The Explanatory
notes to the Equality Bill at page 13 identify that:
“The Bill is a rights-enhancing piece of legislation
the majority of which is required to implement the UK’s obligations under EU
law.”
Therefore, for the Supreme Court to exclude all EU law
when interpreting the Equality Act is incomprehensible, given that most of the
Equality Act gives effect to obligations under EU law.
It is also worth mentioning that the duties of
positive action stem from Article 6 of the Gender
Directive. According
to Article 6 of the Directive:
“the principle of equal treatment shall not prevent
any Member State from maintaining or adopting specific measures to prevent or
compensate for disadvantages linked to sex with a view to ensuring full
equality in practice between men and women.”
The Explanatory
notes to the Equality Bill, at page 131, confirm that the duties of positive
action are derived from EU law. It says:
“Clause 157 of the Equality Bill, which concerns
positive action, provides that the Bill does not prohibit the use of positive
action measures to alleviate disadvantage experienced by people who share a
protected characteristic, reduce their under-representation in relation to
particular activities, and meet their particular needs. It will, for example,
allow measures to be targeted to particular groups, including training to
enable them to gain employment, or health services to address their needs. Any
such measures must be a proportionate way of achieving the relevant aim.
The extent to which it is proportionate to take
positive action measures which may result in people not having the relevant
characteristic being treated less favourably will depend, among other things,
on the seriousness of the relevant disadvantage, the extremity of need or
under-representation and the availability of other means of countering them. This
provision will need to be interpreted in accordance with European law which
limits the extent to which the kind of action it permits will be allowed.” [bolded for
emphasis]
So, whilst it is true that the Equality Act is a
consolidating statute that enacts group- based protections against
discrimination on the grounds of sex and gender reassignment and imposes duties
of positive action, these provisions are not derived from UK law but instead
flow from EU law and the provisions of the Gender
Directive.
Therefore, the Supreme Court should have interpreted the duties of positive
action and the provisions relating to sex discrimination and gender
reassignment in light of the provisions of the Gender
Directive.
There is no mention of the Gender Directive in the judgment.
8)
Premise
8: It is important that the EA 2010 is interpreted in a clear
and consistent way so
that groups which share a protected characteristic can be identified by those on whom
the Act imposes
obligations so that they can perform those obligations in a
practical way (paras 151-154 of the judgment).
The Equality Act 2010, in giving effect
to the Gender Directive and CJEU caselaw like the case of P v S and Cornwall County Council [1996], has interpreted the Equality
Act in a gender inclusive way for the last fifteen years without any great
difficulty and the courts have to have regard to Parliament’s intention when
interpreting statutes.
Parliament’s intention, when
implementing the Gender Directive into the Equality Act was to give a certificated sex
reading of sex, not a biological reading of sex. That was done to give effect
to the CJEU judgment in P v S and Cornwall County Council [1996] along with the provisions of the
Gender Directive. A certificated sex reading has been the
default since 1996 and the Equality Act has been interpreted and enacted using
this clear and consistent definition from the beginning. Therefore, if the UKSC
was going to insist on a single interpretation, it should have singled out the
pregnancy provisions as being unworkable as opposed to precluding the
certificated sex interpretation as being the default one where possible.
9)
Premise
9: There is no indication in relevant secondary materials that the EA 2010
modified in any material way the meaning of “man” and “woman” or “sex” from the
meanings in the SDA 1975 (para 164).
This
is clearly incorrect. The Discrimination
Law Review: A Framework for Fairness: Proposals for a Single Equality Bill for
Great Britain, the two Command Papers published by the Government
Equalities Office: Framework for a Fairer Future – the Equality Bill (Cm 7431); and The Equality Bill – Government Response to the Consultation (Cm 7454) and the Explanatory notes to the Equality Bill clearly constitute
relevant secondary materials that show beyond doubt that the Equality Act 2010
modified in material ways the meaning of “man”, “woman” and “sex” found in the
Sex Discrimination Act 1975 by giving effect to the Gender
Directive through the Sex Discrimination (Amendment
of Legislation) Regulations 2008, and then rolled these amendments to the SDA
1975 into the Equality Act 2010. The provisions of the Recast Equal Treatment
Directive were also incorporated into the Equality Act 2010.
The
UKSC interpretation appears to be based on an incomplete understanding of the
background to the Equality Act. There are, and they have been cited here, several
highly relevant secondary materials that show that the Equality Act 2010
modified in any material way the meaning of “man” and “woman” or “sex” from the
meanings in the SDA 1975, particularly the Discrimination Law Review and the Equality Bill – The
Government response to the Consultation, which was published in 2007. These
show beyond doubt that the Sex Discrimination Act was amended by the Gender Directive and that the language of the Equality Act and the
definitions of sex found in the Equality Act were drawn from the language of
the Gender Directive, which was trans inclusive.
The Gender Directive, read in light of the judgment
in P v S and Cornwall County
Council [1996], explicitly moved away from a definition of sex that used the
terms “man” and “woman” and instead moved to gender-neutral terms of “one sex”
or the other sex, thereby defining sex in a way that was inclusive of certificated
sex. Parliament, when drafting the Equality Act, applied the CJEU’s reasoning
in P v S and Cornwall County
Council [1996], and construed discrimination
on the grounds of gender reassignment as discrimination on the grounds of sex.
Therefore, Parliament’s intention was to give a certificated sex reading to the
Equality Act, and the courts do not have the right to over-ride Parliament in
this way. What is clear from these secondary materials is that the Equality Act
was drafted with the provisions of the Gender Directive and the case
of P v S and Cornwall County
Council [1996] in mind, and with the intention to give
effect to both.
10) Premise
10: “Interpreting “sex” as certificated sex would cut across the definitions of
“man” and “woman” and thus the protected characteristic of sex in an incoherent
way. (paras 172, 177-188 of the judgment).
Parliament’s
intention when legislating for the Equality Act 2010 was to amend the
definition of indirect discrimination from the one used in the SDA 1975, which
talks of “men” and “women”, to the gender-neutral provision found in the Gender Directive, which does not
mention men and women at all. Therefore, Parliament’s intention when drafting
the Equality Act was to cut across the definitions of “man” and “woman” found
in the Sex Discrimination Act, and give effect to the gender-neutral,
certificated sex reading found in the Gender Directive. This is not
incoherent – it gives effect to EU law and a certificated sex reading has
applied in the UK for the last 15 years without being a problem. Article 2(b)
of the Gender Directive, defines indirect
discrimination as:
“where an apparently
neutral provision, criterion or practice would put persons of one sex at
a particular disadvantage compared with persons of the other sex, unless
that provision, criterion or practice is objectively justified by a legitimate
aim, and the means of achieving that aim are appropriate and necessary”.
Therefore,
when the Equality Act was being drafted, and the provisions of the Gender Directive were
being given effect in UK law, Parliament had in mind the ruling in P v S and Cornwall County
Council [1996], which held that discrimination on the grounds of
gender reassignment forms part of sex discrimination. Therefore, from the
outset, Parliament was applying a certificated sex reading to the Equality Act,
and they fully intended to cut across the definitions of “man” and “woman”
found in the Sex Discrimination Act, as those provisions did not comply with
the Gender Directive.
11) Premise 11 - We reject the suggestion of
the Inner House that the words can bear a variable meaning so that in the provisions relating
to pregnancy and maternity the EA 2010 is referring to biological sex only, while elsewhere it refers to certificated
sex as well (paras 189-197).
In a consolidating statute, like the
Equality Act, it is perfectly possible for words to bear a variable meaning, as
the statute is bringing together a range of provisions. Furthermore, as we saw
in relation to the question of statutory interpretation, the obligation on the English courts to construe
domestic legislation consistently with EU law is not, in particular:
(a) constrained by
conventional rules of construction.
(b) does not require
ambiguity in the legislative language.
(c) is not an exercise
in semantics or linguistics.
(d) permits departure from the strict and literal
application of the words which the legislature has elected to use.
(e) permits the
implication of words necessary to comply with EU law obligations, and
(f) the precise form of
the words to be implied does not matter.”
So,
as a matter of EU law and the interpretation of EU law, words are perfectly
able to bear a variable meaning.
The
Discrimination Law Review at
page 183, also covers the question whether the provisions in the Equality Act
that relate to pregnancy and maternity relate to biological sex only. It says:
“Discrimination on grounds of pregnancy and maternity
B.29 The Gender Directive
stipulates that less favourable treatment on grounds of pregnancy or maternity
in goods and services is direct sex discrimination.
B.30 The Sex Discrimination Act
explicitly provides that less favourable treatment on grounds of pregnancy or
maternity leave is unlawful in relation to employment, but there is nothing on
the face of the Sex Discrimination Act making similar provision in respect of
goods, facilities or services and premises.
B.31 To ensure clarity and
consistency of the law, we intend to make explicit that less favourable
treatment on grounds of pregnancy and maternity in the provision of goods,
facilities or services and premises is direct sex discrimination.
Defining ‘maternity’
B.32 There are no precedents
for a definition of ‘maternity’ in discrimination law concerning provision of
goods, facilities or services and premises. When considering how maternity
should be defined, we noted that:
• the definition used in the Sex Discrimination
Act in the context of employment relates to ‘maternity leave’; and
• The
Sex Discrimination Act also contains a provision for special treatment of women
in connection with ‘pregnancy and childbirth’ (section 2(2) Sex Discrimination
Act). This applies to both employment and other fields, including goods,
facilities or services and premises. This means that it is not discriminatory
to afford women special treatment in connection with pregnancy and childbirth.
B.33 Options for defining
maternity for the purpose of the Sex Discrimination Act provisions cove ring goods, facilities or services and
premises therefore include:
• Defining maternity as
‘childbirth’.
• Defining
maternity according to the age of the child – for example, protecting mothers
of babies aged up to one year.
• Providing protection
for ‘mothers of young children’.
• Not defining maternity.
The draft regulations which we have prepared for consultation define
maternity for the purposes of the goods, facilities or services and premises
provisions as one year (52 weeks) after the birth of the child. We consider
that this would add clarity and certainty about rights and responsibilities.”
The
Gender Directive
gives effect to the sex discrimination/gender reassignment provisions and also
covers pregnancy and maternity. Given that transgender men can become pregnant,
and would therefore be covered by the Gender Directive, it would appear
that by default, the provisions of the Gender Directive
were intended to have a certificated sex reading. The Gender Directive
covers the provisions outside of employment that relate to sex discrimination,
gender reassignment, pregnancy and maternity. The Supreme Court should have
considered this context, and the relevant provisions of the Gender Directive
should have led the Supreme Court to come to a conforming interpretation of the
Equality Act. When interpreting EU law, it is perfectly possible to have words
with a variable meaning, so long as the protections derived from EU law are given
effect.
12) Premise
12 “Gender reassignment and sex are separate bases for discrimination and
inequality” (paras 198-203 of the judgment).
Discrimination
on the grounds of gender reassignment has consistently been held to be discrimination
on the grounds of sex, by the CJEU, as we have seen in the above cases. This is
settled EU law. Sex discrimination and gender reassignment haven’t been
separate bases for discrimination since 1996, when the case of P v S and Cornwall County
Council [1996] was decided.
Since the
Equality Act was introduced, gender reassignment and sex discrimination have
always been inextricably connected, because that is the approach that is
reflected in the Gender Directive and CJEU
caselaw.
This
premise runs completely contrary to EU law and particularly the CJEU case law
described above. EU law considers it settled law that discrimination
on the grounds of gender reassignment is discrimination on the
grounds of sex.
13)
Premise
13 A certificated reading of ‘sex’ in the Equality Act] would also seriously
weaken the protections given to those with the protected characteristic of
sexual orientation for example by interfering with their ability to have
lesbian-only spaces and associations (paras 204-209).
This objection to a
certificated sex reading of the Equality Act 2010 doesn’t necessarily follow.
Directive 2000/78 was the directive that prohibited discrimination on the
grounds of sexual orientation. This directive sets out a general framework to
ensure equal treatment of individuals in the European Union (EU) at the
workplace regardless of their religion or belief, disability, age or sexual
orientation.
It covers both
direct discrimination (differential treatment based on a specific
characteristic) and indirect discrimination (any provision, criterion or
practice which is apparently neutral but puts the people in the above
categories at a disadvantage compared to others). Harassment, which creates a
hostile environment, is deemed to be discrimination.
The provisions of
the directive were enacted into UK law, by the Employment Equality (Sexual
Orientation) Regulations 2003 SI n° 1661 of 26/06/2003 and these provisions
were then repealed when the Equality Act 2010 came into force, as the
provisions of this directive were enacted into the Equality Act.
The Directive
provides that:
“The prohibition of
discrimination should be without prejudice to the maintenance or adoption of
measures intended to prevent or compensate for disadvantages suffered by a
group of persons of a particular religion or belief, disability, age or sexual
orientation, and such measures may permit organisations of persons of a
particular religion or belief, disability, age or sexual orientation where
their main object is the promotion of the special needs of those persons.”
The Explanatory notes to the Equality Bill demonstrate that
the Equality Act recognises that those with a protected characteristic, such as
sexual orientation, are entitled to have their own lesbian only spaces and
associations. Applying a certificated sex reading to the Equality Act, in line
with the Gender Directive, does not change
that. The Explanatory notes say at paragraph 38 on page 14 that:
“The balance which
has been struck between competing rights throughout the Bill is also
demonstrated by clause 101 and the exception to it at Schedule 16, which are
designed to balance the Article 8 and 11 freedoms of individuals (and
associations) to determine their associates (and members) against the Article 8
and 11 (read with 14) freedoms of individuals to associate without
discrimination. Where there is such a conflict between competing interests,
States must find a fair and proper balance. The Government has concluded that
imposing a general prohibition on discrimination in this area but allowing
single characteristic clubs to continue strikes the correct balance. It ensures
that although the ability of a person to become a member of a club should not,
in general, be dependent on particular protected characteristics, individuals
and associations may still choose to associate with or limit their membership
to those who share a particular protected characteristic. The availability of
other clubs ensures that the restriction on Article 11 rights, as prescribed by
law, is proportionate to the legitimate aim of protecting the Article 11 rights
of others who would wish to join single characteristic clubs. Moreover, the
Government concludes that there is no violation of Article 14 because any
difference in treatment is proportionate to the legitimate aim of protecting
the rights and freedoms of others.”
Therefore, it does
not follow that a certificated reading of ‘sex’ in the Equality Act would
seriously weaken the protections given to those with the protected
characteristic of sexual orientation for example by interfering with their
ability to have lesbian-only spaces and associations, as from the outset the
Equality Act sought to balance the freedom of individuals to determine their
associates and members, against the freedom of individuals to associate without
discrimination. Individuals and associations may still choose to associate with
or limit their membership to those who share a particular protected
characteristic. The availability of other clubs ensures that the restriction on
Article 11 rights, as prescribed by law, is proportionate to the legitimate aim
of protecting the Article 11 rights of others who would wish to join single
characteristic clubs. Moreover, the Government concludes that there is no
violation of Article 14 because any difference in treatment is proportionate to
the legitimate aim of protecting the rights and freedoms of others.
Premises 14 and 15
will be taken together as they both cover single sex facilities.
14) Premise 14 There are other provisions whose proper
functioning requires a biological interpretation of “sex”. These include
separate spaces and single-sex services (including changing rooms, hostels and
medical services), communal accommodation and others (paras 210-228).
15) Premise 15 Similar incoherence and
impracticability arise in the operations of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport,
the operation of the
public sector equality duty, and the
armed forces (paras 229-246).
There
is no need to give the term “sex” in the Equality Act a biological sex reading,
as the Gender Directive already
provides that differences in treatment may be accepted but only if they are
justified by a legitimate aim. Article 4(5) of the Gender Directive
states:
“This
Directive shall not preclude differences in treatment, if the provision of the
goods and services exclusively or primarily to members of one sex is justified
by a legitimate aim and the means of achieving that aim are appropriate and
necessary.”
This
is expanded upon in Recital (16) of the Gender Directive, which
says:
"Differences
in treatment may be accepted only if they are justified by a legitimate aim. A legitimate
aim may, for example, be the protection of victims of sex-related violence (in
cases such as the establishment of single-sex shelters), reasons of privacy and
decency (in cases such as the provision of accommodation by a person in a part
of that person's home), the promotion of gender equality or of the interests of
men or women (for example single-sex voluntary bodies), the freedom of
association (in cases of membership of single-sex private clubs), and the
organisation of sporting activities (for example single-sex sports events). Any
limitation should nevertheless be appropriate and necessary in accordance with
the criteria derived from case law of the Court of Justice of the European
Communities."
Therefore,
the wording that “differences in treatment may be accepted only if they are
justified by a legitimate aim” is language that is drawn from EU law.
Therefore, any dilution of this standard would constitute a breach of Directive
2004/113 (the Gender Directive)
which is subject to a non-regression clause in the Northern Ireland Protocol.
The
document “The Equality Bill – Government Response to the consultation”[2008] (CM
7454) at page 189, explains the difference in approach between the exclusions
found in the Sex Discrimination Act and the approach taken to differences in
treatment under the Gender Directive. It explains that:
“16.6
The Sex Discrimination Act includes a small number of exceptions that allow
facilities or services to be provided on a single-sex basis, e.g. for reasons
of privacy and decency.
The
Directive permits different treatment of women and men in two respects.
Firstly, where there is a legitimate aim and the different treatment is a
proportionate means of achieving that aim. And secondly, where the different
treatment has the aim of preventing or compensating for disadvantages linked to
sex, i.e. positive action.
The
consultation paper sought views on proposals to bring the pre-existing
exceptions in the Sex Discrimination Act into line with the Gender Directive.
These exceptions range through services provided for men or women only for
reasons of decency to facilities or services restricted to one sex in a place
occupied or used by an organised religion and the restriction is made in order
to comply with the doctrines of the religion or to avoid offending the
religious susceptibilities of a significant number of its followers.
16.11
Where the exceptions as they existed in the Sex Discrimination Act before 6
April 2008 ran the risk of not complying fully with the Directive, the
Regulations have tightened the drafting so that the differential treatment of
men and women that the exceptions permit is compatible with European law.
16.12
The Regulations have also amended the specific exceptions in the Sex
Discrimination Act that allow provision to women or to men only, other than in
relation to the excluded matters, to allow for different treatment of
transsexual people on the ground of gender reassignment, but only where such
treatment is a proportionate means of achieving a legitimate aim, or in respect
of voluntary bodies and charities, as positive action measures.”
So,
there is no doubt that the Gender Directive
amended the definition of sex found in the Sex Discrimination Act away from the
term’s “men” and “women”, to bring the definition of sex in line with the Gender Directive.
What
constitutes a legitimate aim?
The Discrimination Law Review (page
40) explores what is meant by a legitimate aim in more detail.
Legitimate
aims and proportionate means
1.42
The European Directives use the formula that the provision, criterion or
practice must be “objectively justified by a legitimate aim and the means of
achieving that aim are appropriate and necessary”. British law uses the wording
“which he cannot show to be a proportionate means of achieving a legitimate
aim”. “Proportionate” has the same effect as “appropriate and necessary”.
1.43
A wide variety of aims may be considered legitimate, but they must correspond
with a real need on the part of the employer or service provider. Economic
factors such as business needs and efficiency may be legitimate aims but
arguing that it could be more expensive not to discriminate may not in itself
be a valid justification
The
legitimate aim cannot itself be discriminatory.
1.44
What is proportionate will depend on the facts of each case. Generally, the
provision, criterion or practice must be appropriate with a view to achieving
the objectives pursued. The need for it must outweigh the disproportionate
impact it has on people of a protected group. Consideration may be given to
whether the legitimate aim can be achieved by other means which have fewer or
no discriminatory effects. “
The Discrimination Law Review at
page 179 explores this further. It says:
"B.16
Article 4(5) of the Gender Directive permits differences in treatment between
men and women if the provision of goods and services exclusively or primarily
to members of one sex is justified by a legitimate aim and the means of
achieving that aim are appropriate and necessary.
B.17
The Government negotiated this provision to ensure that we could retain certain
specific exceptions in the Sex Discrimination Act such as the provision of
accommodation by a person in a part of their home for reasons of privacy and
decency, single-sex voluntary bodies to promote the interests of men or women,
membership of single-sex clubs to allow freedom of association, and the
organisation of single-sex sports events.
B.18
We have reviewed the existing exceptions in the Sex Discrimination Act which
allow for difference of treatment, to assess whether each one is compatible
with the Directive or whether any changes are necessary.
There
are many which we consider already meet the test set out in the Directive or do
not fall within its scope. However, there are some where we consider specific
changes are needed to ensure any differences of treatment are justified.
The
key points here are:
1. that
under the Directive, treating people who are trans differently can only be
justified by a legitimate aim and
2. In a
personal context, this requirement flows from EU law, specifically the Gender Directive.
Different Directives deal with discrimination in a work context, although
similar principles apply in all of them.
3. Wanting
to exclude people for discriminatory reasons is not a legitimate aim.
4. Any
limitation has to be shown to be appropriate and necessary, in conformity with
the Gender Directive and in
accordance with the criteria derived from CJEU caselaw. Any attempt to ban
trans people from spaces can only be justified if it complies with the Gender Directive and
the criteria derived from retained CJEU caselaw. This means that any
limitations on the rights of people who are trans to access services must
comply with the principles found in the CJEU cases of P v S and Cornwall County
Council, Richards v Secretary of
State for Work and Pensions and MB v Secretary of State
for Work and Pensions.
Annex B of the
Discrimination Law Review [2007] gives further guidance
on when trans people can be excluded from spaces. It specifies that:
“Gender
reassignment: discrimination against transsexual people in the provision
of goods, facilities or services and premises
B.1
We have made clear that we consider
discrimination against transsexual people is unacceptable. European case law[1]
has held that the right not to be discriminated against on grounds of a person's sex includes discrimination on the grounds of the gender
reassignment of a person.
We therefore
consider that the Gender Directive
provides protection for people
who intend to undergo, are undergoing or have undergone gender reassignment against discrimination in the provision of
goods, facilities or services and premises.
B.2
We propose
to make direct discrimination and harassment on grounds of a person's gender reassignment unlawful in the fields of goods, facilities or services and premises, as it already is in the fields of employment
and vocational training. Proposals
concerning indirect discrimination on the grounds of a person's
gender reassignment are not
addressed here but are
dealt with as part of the proposals for a
Single Equality Bill (see Chapter 1).
Single-sex
services - exceptions to the prohibition
of discrimination on grounds of a person's gender reassignment
B.3
As highlighted above, the Sex Discrimination
Act contains a number of exceptions from the general prohibition on sex discrimination in goods, facilities or services and
premises. The Gender Directive also allows for different treatment if the
provision of goods and services exclusively or primarily to members of one sex is justified. Most transsexual people wish to be treated
in their acquired
gender. Nevertheless, we consider
it is appropriate in policy
terms and necessary for reasons of clarity,
for the law to allow, in certain limited circumstances, single-sex service
providers (such as voluntary or charitable organisations set up for the benefit of one sex only) to treat a transsexual person differently
from other men or women. Those limited circumstances are where the single
sex service provider can demonstrate that their different
treatment of a transsexual person in a
particular case was a proportionate means of achieving a legitimate aim, in
accordance with Article 4(5) of the Directive.
The reason for this limited exception is
that we recognise that there may be some cases where it may not always be
clear to a single-sex service
provider whether their services can be made available to a transsexual person.
This may occur, for example,
where someone is in the middle
of the process of gender
reassignment or has undergone the process but does
not present in their acquired
gender and it is unclear whether
the particular single-sex service
can be provided to the transsexual person in
accordance with their birth sex or their acquired sex. Much will depend on the particular circumstances of each case. To rely
on such an exception, single-sex service providers will need to be able to point to a legitimate aim and demonstrate, in
the circumstances of the particular
case, why no less discriminatory alternatives
of achieving that legitimate aim were available.
Relevant factors which may need to be taken into account include the particular service
being provided or the facilities available;
the views of the transsexual person; the stage of transition of the transsexual person when they seek
access to the service; and the
impact on other users of the
service.
We propose to provide guidance
on the factors which may need to be taken into account
when a decision is made to treat a transsexual person differently from other
men or women in the provision
of single-sex services.
Sport
B.1
We intend to clarify in the Sex
Discrimination Act that in
single-sex sporting competitions, it will be
lawful to discriminate on grounds of a person's gender reassignment where this
is necessary to secure fair
competition or the safety of competitors, but not
otherwise.
Table
1 found in Annex B of
the Discrimination Law Review sets out the then Labour Governments intentions
regarding single sex spaces at the time the Equality Act was being drafted. Table
1 lists all of the exceptions in the Sex Discrimination Act which applied in
the context of the Directive and sets out where the Labour government of the
day consider changes were needed in order to bring equality law in line with
the provisions of the Gender Directive. However,
when seeking to rely on these provisions, organisations should also have regard
to the relevant factors described above, namely:
(i)
the particular service
being provided or the facilities available.
(ii)
the views of the trans person.
(iii)
the stage of transition of the trans person when they seek
access to the service; and
(iv)
the impact
on other users of the service.
(v)
The legitimate aim cannot itself be
discriminatory.
16) Premise 16: It is striking that the EHRC has advised
the UK Government of the problems
created by its interpretation of the EA 2010, which include many of the matters
which we have discussed above and has called for legislation to amend the Act.
The absence of coherence and the practical problems to which that
interpretation gives rise are clear pointers that the interpretation is not
correct (para 247).
A detailed reading of the history of the
Equality Act and its EU law origins/associations makes clear that the Equality
and Human Rights Commission interpretation of the Equality Act is highly
selective, as demonstrated, and consequently should not form the basis for the
government interpretation of the Equality Act 2010.
The EHRC, under Baroness Falkner has
been repeatedly criticised for its policies and attitudes towards trans people.
The EHRC was created to uphold the provisions of the various Equal Treatment
Directives and they are failing in their duty to uphold the rights that trans
people have under both the Gender Directive and the Recast Equal Treatment
Directives. The EHRC was subject to a special review by the UN, following complaints by 30 LGBT
organisation regarding Baroness Falkner’s preferred definition of sex as
referring to biological sex. UN experts have warned of legal uncertainty and rights
implications following UK Supreme Court ruling. Various legal proceedings have also been
issued against the EHRC, relating to their attempts to exclude trans people
following the ruling.
It is also worth noting that equality
bodies and organisations generally are subject, under both the Gender Directive and the Equality Act, to not instruct others to commit
direct or indirect discrimination on the grounds of sex, as this is deemed to
be discrimination under s4(4) of the Gender Directive and is also prohibited under s111 of the Equality Act.
17) Premise 17: The interpretation of the EA 2010 (ie the biological sex reading), which we
conclude is the only correct
one, does not cause disadvantage to trans people,
with or without a GRC. In the light of case law interpreting the relevant provisions, they would be able to invoke the provisions on direct
discrimination and harassment, and indirect discrimination. A certificated sex reading is not required
to give them those protections (paras 248-263).
Actions and attempts to exclude trans people from
public life since the ruling, have demonstrated this to be untrue in reality.
Furthermore, the “biological sex” ruling has been heavily criticised for its
lack of workability in practice. For example, the union branch of the BMA, that
represents approximately 50,000 doctors issued a statement saying that it “condemns
scientifically illiterate rulings from the Supreme Court, made without
consulting relevant experts and stakeholders, that will cause real-world harm
to the trans, non-binary and intersex communities in this country".
The full text of the motion reads:
"This meeting condemns the Supreme Court ruling
defining the term 'woman' with respect to the Equality Act as being based on
'biological sex', which they refer to as a person who 'was at birth of the
female sex', as reductive, trans and intersex-exclusionary and biologically
nonsensical.
"We recognize as doctors that sex and gender are
complex and multifaceted aspects of the human condition and attempting to
impose a rigid binary has no basis in science or medicine while being actively
harmful to transgender and gender diverse people. As such this meeting:
"i: Reiterates the BMA's position on affirming
the rights of transgender and non-binary individuals to live their lives with
dignity, having their identity respected.
"ii. Reminds the Supreme Court of the existence
of intersex people and reaffirms their right to exist in the gender identity
that matches their sense of self, regardless of whether this matches any
identity assigned to them at birth.”
Many legal commentators have also criticised the
Supreme Court judgment for not recognising the risks inherent with the
biological straitjacket that the judgment in FWS has wrought. For example,
Robert Mullins published an article on the UK Constitutional Law Association
called “For
Women Scotland – fastening the biological straitjacket”, which referred to the problems of practically
applying the judgment in FWS to people who are intersex. This point, the
fact that the judgment in FWS creates a hierarchy of protections rather
than protecting everyone with protected characteristics equally and the likely
incompatibility of the decision in FWS with Convention rights was also
highlight by Robin Allen KC, a leading expert in equality law, in his article
for the Discrimination Law Association ‘Briefings’, “Self-determination and
the limits to segregation: another perspective on For Women Scotland”.
Concerns have also been raised about the Supreme Court’s failure to engage with
Convention rights before reaching its judgment by several other commentators, for
example, Crash
Wigley: For Women Scotland: A Case of Significant Silences and Jess O’Thomson and Oscar Davies article "A
third sex: returning to an intermediate zone" available from
Discrimination Law Briefings, July 2025 p14.
There have been some legal commentators that have
supported the ruling. Ben Cooper KC, who represented Sex Matters in the case of
FWS at the Supreme Court has recently published a paper called “For
Women Scotland v The Scottish Ministers: Why the Supreme Court’s judgment does
not remove, diminish or breach the rights and protections of trans people”. Michael Foran, who was a Consultant to Sex Matters in
relation to their intervention before the Supreme Court in For Women Scotland
has written a paper called “Is
legal recognition of biological sex a violation of human rights?’, where he argued that no, it wasn’t. Karon Monaghan
KC, who represented Scottish Lesbians; The Lesbian Project; and the LGB
Alliance in the case of FWS at the Supreme Court, has published a paper in
the July 2025 edition of the Discrimination Law Association ‘Briefings”, called
“Why the Supreme Court in For Women Scotland was right”. However, none of these
papers consider any of the background materials to the Equality Act, the EU
origins of the Equality Act, the Gender Directive, the Recast Equal Treatment
Directive and anything other than a brief mention of the case of P
v S and Cornwall County Council [1996].
The decision is FWS has also damaged the UK’s
reputation internationally. The Council of Europe Commissioner for Human Rights
has heavily criticised the Supreme Court ruling, saying:
“The Commissioner is concerned about the current
climate for trans people. Although they constitute a very small proportion of
the population, and face acute marginalisation across all areas of life, trans
people have been subject to intense political and public debate and scrutiny,
including in the wake of the Supreme Court’s judgment in For Women Scotland Ltd. v. The Scottish Ministers.
He observes a tendency to see the human rights of different groups as a
zero-sum game, when in reality any tensions will likely be exceptional;
nuanced, reasonable and balanced accommodations can be found. He deplores that
discussions tend towards the exclusion of trans people from many aspects of
society, rather than ensuring that their inclusion and dignity are upheld. The
Commissioner reiterates that all relevant legal or policy developments must be
human rights-compliant, including in view of the case law of the European Court
of Human Rights and other international instruments.”
Furthermore, insofar as the FWS interpretation of the
Equality Act 2010 conflicts with EU law, Northern Ireland is obligated by the UK
Parliament to ignore the judgment, and therefore the judgment by the Supreme
Court in FWS has also impacted the constitutional integrity in the UK. It would
have made far more sense for the Supreme Court to come to a decision that not
only reflected the EU law origins of the Equality Act but also gave effect to
EU law during the transition period, as doing so would have meant that the
judgment could safely be applied in all the constituent parts of the UK. As things stand, the decision in FWS does not
apply in Northern Ireland as it would conflict with EU law. This point was made
in the article on the Administration Law Blog, “Limits
to the UK Supreme Court’s Reach: Northern Ireland, the Windsor Framework and
Trans Rights”. The article
makes the point that:
“There is thus no reason to believe that FWS should
have any impact in Northern Ireland at all, and pressure to give effect to the
UKSC position should be resisted, on the straightforward basis that giving
effect to it would be unlawful. Trans
people are as a matter of EU law considered to hold the sex that they acquired,
rather than the sex they were assigned to birth – and that a failure to
consider trans individuals as holding their acquired sex is a breach of EU law
– both primary and secondary – which falls within the scope of the Windsor
Framework.”
In light of all of these problems and difficulties,
the idea that the Supreme Court interpreting the Equality Act 2010 using a
biological sex reading, was not going to cause any problems to trans people or
more generally seems unduly optimistic. Events since the ruling was issued have
demonstrated that to be false.
The judgment has not “clarified” anything. Instead, it
has generated a huge amount of legal uncertainty because the Supreme Court have
ruled in a way that disapplies long standing rights that trans people have had
for years under EU law, in relation to a case that started during the
transition period when EU law still applied, and even worse, has stripped long
standing rights that trans people have had for thirty years under EU law,
retrospectively.
With this judgment, the Supreme Court has not
interpreted the law; instead, it has ruled in a way that is contrary to
Parliament’s intention at the time the Equality Act was being drafted and
contrary to EU law and key provisions of the EU-UK Withdrawal Agreement.
Conclusion
We have shown in this paper that the
judgment in FWS is based on an incorrect understanding of the background
to the Equality Act. There were several in-depth background documents published
by the Labour government of the day that explained the background to the
Equality Act. The historical background to the Equality Act 2010 is that the
provisions of the Sex Discrimination Act 1975, which defined sex using the
terms “man” and “woman” was amended to give effect to the Gender Directive. The Gender Directive applies the gender-neutral definitions of sex in the
directive; they do not refer to men and women at all.
The intention was to incorporate the
provisions of the Gender Directive into the Equality Act, but the Government were aware that
the Equality Act would not become law by the 21 December 2007. Therefore, the
Sex Discrimination Act 1975 was amended by the Sex Discrimination (Amendment of
Legislation) Regulations 2008, and then when the Equality Act 2010 became law,
the Sex Discrimination (Amendment of Legislation) Regulations 2008 were
repealed in their entirety, by Part 2 of Schedule 27 of the Equality Act
2010. Once the Equality Act became law
the Sex Discrimination Act 1975 was then repealed, and so it hasn’t been in
force since 2010. The Sex Discrimination Act 1975 is irrelevant when it comes
to interpreting the Equality Act as the language of the Sex Discrimination Act,
which talks of men and women, was not carried forward into the Equality Act.
Instead, the term “sex” in the Equality Act was given a certificated sex
reading of the term, in order to give effect to both the Gender Directive and CJEU caselaw, like the case of P v S and Cornwall County Council [1996].
What the background documents to the
Equality Act 2010 do make clear is that while the Gender Directive does not explicitly mention gender
reassignment, the CJEU ruled in the case of P v S and Cornwall County Council [1996] and subsequent caselaw relating
to sex discrimination and gender reassignment, that the right not to be
discriminated against on grounds of sex includes discrimination arising from a
person’s gender reassignment. According to the CJEU, this is settled law.
Therefore, the Labour government were required to outlaw discrimination against
trans people in the provision of goods and services which fall within the
Directive’s scope. Sex discrimination and discrimination on the grounds of
gender reassignment have always been intertwined as concepts – they are not
separate grounds of discrimination, and the Equality Act was drafted to give
effect to a certificated sex reading of its provisions.
Therefore, the Sex Discrimination Act
1975 is irrelevant when it comes to interpreting the Equality Act 2010. The
Supreme Court should have interpreted the Equality Act in light of the Gender Directive not the Sex Discrimination Act 1975, as the Gender Directive amended the Sex Discrimination Act as
part of the process of enacting the Equality Act 2010. The language of the
Equality Act, specifically the definition of sex, is not derived from the Sex
Discrimination Act – it is derived from the Gender Directive. The Sex Discrimination Act 1975 is irrelevant when it
comes to interpreting the Equality Act 2010, as the SDA was amended by the Gender Directive, interpreted in accordance with the case of P v S and Cornwall County Council and
subsequent CJEU caselaw on sex discrimination and gender reassignment. The factual
matrix of the ruling in FWS is therefore based on fatal errors of fact
and the case of FWS has been wrongly decided as a result.
This CJEU caselaw, taken with the
provisions of the Gender Directive, should have led the Supreme Court to
come to a conforming interpretation of the Equality Act, which was in
accordance with EU law. The Supreme Court have also misapplied the rules of
statutory interpretation in this case.
Furthermore, the ruling in FWS by
the Supreme Court has potentially put the UK in breach of Article 127(1) (3)
and Article 4 of the EU-UK Withdrawal Agreement., under Lord Lloyd Jones analysis
in Lipton
of how higher courts should decide cases that start in the transition period
but only get a ruling after Brexit. These principles arguably should have been
applied to the case of FWS. The Withdrawal Agreement is also likely to be of
relevance if the case of FWS is applied in Northern Ireland as the
Northern Ireland protocol/Windsor framework is subject to a non-regression in
relation to all of the Equal Treatment Directives, including the Gender Directive.
Even if one applies the alternative
analysis of how the Supreme Court should approach cases that started during the
transition period but were only decided after Brexit, where the Supreme Court
can depart from previous CJEU caselaw “when it feels it is right to do so”, the
Supreme Court did not decide in the case of FWS that the decisions in P v S and Cornwall County Council [1996], Richards v Secretary of State for Work and Pensions [2006], and MB v Secretary of State for Work and Pensions [2018] were wrongly decided by the CJEU.
Nor was it argued by Sex Matters that those cases were wrongly decided. Therefore,
under the common law rules which govern when a higher court can depart from
CJEU caselaw, it was not justifiable for the Supreme Court to depart from CJEU
caselaw when deciding the case of FWS.
Under either analysis, the UK Supreme
Court should have followed and applied the decisions in the CJEU cases
described above and also interpreted the Equality Act in conformity with EU
law, and specifically the provisions of the Gender Directive and the Recast Equal Treatment Directive. There
is no excuse for the fact that they did not do so, given that the Equality Act
is a rights-enhancing piece of legislation the majority of which is
required to implement the UK’s obligations under EU law.
The decision in FWS is based on
significant errors of fact and law and also potentially puts the UK in breach
of its obligations under the Withdrawal Agreement. It gives every indication of
being wrongly decided and should not, in our view, be relied upon by
organisations as justification for excluding trans people from public
life.
The central reason the UKSC ignored the points you raised is that they cribbed pretty much the entire ruling from the Michael Foran paper they cited in the ruling. If you read the paper you can see clearly the faulty logic he used.
ReplyDeleteIf you are interested I am writing a paper on this. My work email is Rachel.saunders@nottingham.ac.uk