Nope. It is not in the presentation of the Ruling by Lord Hodge and I cannot find anything about doors or symbols or dresses in the Ruling. It might be in there somewhere but alluded to rather than directly stated.
Transcript - For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16
16 April 2025
https://youtubetotranscript.com/transcript?v=XxHtbTragtg¤t_language_code=en
Court officer: Judgment in the matter of For Women Scotland v The Scottish Ministers.
Lord Reed: When we announce our decision in this case in a moment, some people here will be pleased and others will be disappointed.
Whatever your feelings may be, please respect the dignity of these proceedings by remaining silent until the Court has adjourned.
Lord Hodge will explain the decision of the Court.
Lord Hodge: The principal issues raised on this appeal are questions of statutory interpretation.
The two United Kingdom statutes which we are interpreting are the Gender Recognition Act 2004 and the Equality Act 2010. The Court is well aware of the strength of feeling on all sides, which lies behind this appeal.
On the one hand, women who make up one half of our population have campaigned for over 150 years to have equality with men and to combat discrimination based on their sex. That work still continues.
On the other hand, a vulnerable and often harassed minority, the trans community, struggle against discrimination and prejudice as they seek to live their lives with dignity.
Lesbian women who have historically suffered marginalisation because of their sexual orientation have entered the debate.
It is not the task of this Court to make policy on how the interests of these groups should be protected. Our role is to ascertain the meaning of the legislation which Parliament has enacted to that end.
The central question on this appeal is the meaning of the terms woman and sex in the Equality Act 2010.
Do those terms refer to biological women or biological sex?
Or is a woman to be interpreted as extending to a trans woman with a gender recognition certificate? By that, I mean a person born male, who now possesses a gender recognition certificate amending her gender to female. And sex to be interpreted as including what I will refer to as certificated sex.
The unanimous decision of this Court is that the terms woman and sex in the Equality Act 2010 refer to a biological woman and biological sex.
But we counsel against reading this judgment as a triumph of one or more groups in our society at the expense of another. It is not.
As I shall explain later in this hand down speech, the Equality Act 2010 gives transgender people protection, not only against discrimination, through the protected characteristic of gender reassignment, but also against direct discrimination, indirect discrimination and harassment in substance in their acquired gender. This is the application of the principle of discrimination by association. Those statutory protections are available to transgender people, whether or not they possess a gender recognition certificate.
The questions which this Court addresses have arisen in this way. The Scottish Parliament has sought to increase the representation of women on the boardsof public bodies by enacting the [Gender Representation on] Public Boards (Scotland) Act 2018. I will refer to that Act as 'the 2018 Act'.
The current challenge relates to the statutory guidance which the Scottish Government issued in 2022, following a successful legal challenge to the statutory definition of a woman in the 2018 Act and to the original statutory guidance. In the revised guidance, the Scottish Government, relying on its interpretation of the Equality Act 2010, asserts that woman, for the purposes of the 2018 Act, includes a trans woman who possesses a full gender recognition certificate, acknowledging her acquired sex as that of a woman.
The campaigning charity, For Women Scotland, challenge the legality of that statutory guidance and submit that it is both wrong in law and beyond the competency of the Scottish Government.
This challenge was rejected by both the Outer House and the Inner House of the Court of Session in Edinburgh. The courts held that section 9(1) of the Gender Recognition Act 2004, which I'll now refer to as 'the GRA', had the effect that a person with a gender recognition certificate was entitled to be treated in law as having his or her acquired gender for all purposes. They addressed section 9(3) of the GRA, which provides that the rule in section 9(1) is, and I quote, "subject to provision made by this Act or any other enactment or any subordinate legislation".
The courts held that section 9(3) has effect only if the terms and context of the subsequent enactment require it to be interpreted as disapplying the section 9(1) rule. They held that the Equality Act 2010, which I'll now refer to as 'the EA', did not require such an interpretation except possibly in the provisions relating to pregnancy and maternity.
For Women Scotland, appeal to this Court. Their appeal is opposed by the Scottish Ministers.
We have also had the benefit of submissions from four interveners.
First, there is Sex Matters, a campaigning charity, which argued cogently for the biological interpretation of the words woman and sex in the EA.
Secondly, the Lesbian Project and the LGB Alliance, which are also campaigning charities, pointed out the anomalies, which would adversely affect lesbians if those terms were interpreted as certificated sex rather than biological sex.
Thirdly, we had submissions from the Equality and Human Rights Commission, which I'll refer to as 'the EHRC', a British public body, which has advised the Scottish Government on the interpretation of the EA. The EHRC supported the Scottish Government's interpretation of the EA, but expressed concerns about anomalies in the operation of that Act and concluded that the EA needed to be amended by Parliament.
Fourthly, Amnesty International UK provided submissions on human rights issues relevant to the appeal.
We are grateful to all the interveners for their assistance.
In a judgment written by Lady Rose, Lady Simler and me, with whom Lord Reed and Lord Lloyd Jones agree, we unanimously allow the appeal.
It's a long judgment as the Court analyses the GRA and the EA in considerable detail. In a hand-down address, I can only give a brief description of the reasoning.
The Court explains the principles which apply to statutory interpretation, including the need to give a coherent meaning to an Act of Parliament.
By way of historical background, we point out that the Sex Discrimination Act of 1975, which is the relevant statutory predecessor of the EA, adopted a biological interpretation of the terms man and woman.
The Sex Discrimination (Gender Reassignment) Regulations 1999, which I'll call 'the 1999 Regulations', introduced a new protected characteristic of gender reassignment, which protects those who intend to undergo, are undergoing, or have undergone a process of gender reassignment. The 1999 Regulations did not alter the definitions of man or woman in the Sex Discrimination Act.
The judgment then addresses two central questions.
The first is the meaning of the GRA. As I have said, the Scottish courts applied the rule in section 9(1) of the GRA to the definition of woman in the EA as they didn't interpret the EA as qualifying that rule.
So the first question is therefore, what is the meaning and effect of section 9(3) of the GRA? The Court rejects the submission that for section 9(3) to operate, it is necessary to find an express statutory provision disapplying section 9(1) or that the other statute by necessarily implication, disapplies the section 9(1) rule. We hold that all that is required is that the words of the other legislation, when interpreted carefully in their context and having regard to their purpose, are found to be inconsistent with that rule.
That conclusion leads on to the second central question, which is whether the provisions of the EA are inconsistent with the rule in section 9(1) of the GRA. Answering that question involves a painstaking analysis of those provisions. Having conducted that analysis, which takes up the majority of our judgment, the Court has concluded that the provisions of the EA are inconsistent with the rule in section 9(1) of the GRA. We have summarised our reasoning in paragraph 265 of the judgment.
The principal elements of our reasoning can be summarised in the following nine points.
First, the EA enacts group-based protections against discrimination on the grounds, among others, of sex and gender reassignment and imposes duties of positive action on employers and others.
Secondly, the EA must be interpreted in a clear and consistent way so that those on whom the Act imposes obligations can identify the groups which share a protected characteristic.
Thirdly, interpreting sex as certificated sex would cut across the definitions of man and woman in the EA and thus the protected characteristic of sex in an incoherent way. It would create heterogeneous groupings.
Fourthly, as a matter of ordinary language, the provisions relating to sex discrimination, and especially those relating to pregnancy and maternity, and to protection from risks specifically affecting women, can only be interpreted as referring to biological sex.
Fifthly, we reject the suggestion that these words can bear a variable meaning so that in the provisions relating to pregnancy and maternity, the EA is referring to biological sex only while elsewhere, it refers to certificated sex as well. This undermines the coherence of the statute.
Sixthly, the interpretation favoured by the EHRC and the Scottish Ministers would create two subgroups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a gender recognition certificate greater rights than those who do not. Those seeking to perform their obligations under the Act would have no obvious means of distinguishing between the two subgroups to whom different duties were owed, particularly since they could not ask persons whether they had obtained a gender recognition certificate as that information is private.
Seventhly, the certificated sex interpretation 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.
Eighthly, other provisions will function properly only if sex is interpreted as biological sex. Those provisions include separate spaces and single-sex services, including changing rooms, hostels, and medical services, and communal accommodation.
And ninthly, similar incoherence and impracticability arise in the operation 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.
Standing back, we note that the EHRC has advised the United Kingdom Government of problems created by the certificated sex interpretation of the EA. Those problems include several matters in the nine points which we have described.
In our view, the absence of coherence within the statute, and the practical problems which arise, demonstrate that that interpretation is not correct.
It follows that the interpretation of woman in the Scottish Government guidance on the 2018 Act is incorrect, and the challenge to that guidance succeeds.
It also follows that the 2018 Act, correctly interpreted, is within the legislative competence of the Scottish Parliament.
Finally, as I flagged up earlier, the correct interpretation of the EA as referring to biological sex does not cause disadvantage to trans people, whether or not they possess a gender recognition certificate. Trans people have the rights which attach to the protected characteristic of gender reassignment.
In addition, as we explain between paragraphs 248 and 263 of the judgment, they have protection against direct discrimination, harassment and indirect discrimination by association with members of the sex with which they identify.
A trans woman can bring a claim alleging sex discrimination because she is perceived to be a woman or by her association with women. It is now well-established that direct discrimination because of a protected characteristic encompasses not only cases where the complainant affected by discrimination has the protected characteristic in question, but also where the discriminator perceives that the claimant has the characteristic, or in some way associates the complainant with the protected characteristic.
A trans woman is similarly protected against harassment under section 26 of the Equality Act.
Further, the principle of discrimination by association remains part of our law. See section 19A of the EA, and protects transgender people against indirect discrimination, regardless of whether they possess gender recognition certificates. A certified sex reading is not required to achieve any relevant purpose in relation to indirect discrimination.
For these reasons, the Court allows the appeal.
Lord Reed: The Court will now adjourn.
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NOTE: "particularly since they could not ask persons whether they had obtained a gender recognition certificate as that information is private."
This is incorrect.
"a minor error: the Court says that the duty-bearer cannot ask whether someone has a GRC. That is a widespread belief, but one which has no foundation in law."
Naomi Cunningham
15 May 2025
https://www.strath.ac.uk/humanities/lawschool/blog/genderdoesntmatter/