For Women Scotland Ltd v The Scottish Ministers

Heard on 26 and 27 November 2024

Lord Hodge, Lady Rose AND Lady Simler ( with whom Lord Reed and Lord Lloyd-Jones agree):

This appeal is concerned with establishing the correct interpretation of the Equality Act 2010 (“the EA 2010”) which seeks to give statutory protection to people who are at risk of suffering from unlawful discrimination. The questions raised by this appeal directly affect women and members of the trans community. On the one hand, women have historically suffered from discrimination in our society and since 1975 have been given statutory protection against discrimination on the ground of sex. On the other hand, the trans community is both historically and currently a vulnerable community which Parliament has more recently sought to protect by statutory provision.

It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the EA 2010. It has a more limited role which does not involve making policy. The principal question which the court addresses on this appeal is the meaning of the words which Parliament has used in the EA 2010 in legislating to protect women and members of the trans community against discrimination. Our task is to see if those words can bear a coherent and predictable meaning within the EA 2010 consistently with the Gender Recognition Act 2004 (“the GRA 2004”).

As explained more fully below, the EA 2010 seeks to reduce inequality and to protect people with protected characteristics against discrimination. Among the people whom the EA 2010 recognises as having protected characteristics are women, whose protected characteristic is sex, and “transsexual” people, whose protected characteristic is gender reassignment.

The question for this court is a matter of statutory interpretation. But before discussing the general approach to statutory interpretation, we set out the structure of this judgment and address the matter of terminology.

We discuss terminology, the approach to statutory interpretation and the factual background between paras 6 and 35. We address the historical background to the GRA 2004, its interpretation and its operation between paras 36 and 111. We then between paras 112 and 264 address in some detail the interpretation of the EA 2010 to give its provisions a coherent and predictable meaning. We summarise our reasoning in para 265.

We are aware of the strength of feeling which has been generated by the disagreements between campaigners seeking to represent the interests of each of these groups and that taxonomy itself can generate controversy. We are content to draw on the terminology used by the Scottish Ministers in their written case for the purposes of this judgment and have adopted the following terms. A person who is a biological man, ie who was at birth of the male sex, but who has the protected characteristic of gender reassignment is described as a “trans woman”. Similarly, a person who is a biological woman, ie who was at birth of the female sex, but who has the protected characteristic of gender reassignment is described as a “trans man”. We describe trans women and trans men who have obtained a gender recognition certificate (“GRC”) under the GRA 2004 as “trans women with a GRC” and “trans men with a GRC” respectively and their gender resulting from the GRC as their “acquired gender” or “acquired sex”.

We also use the expression “biological sex” which is used widely, including in the judgments of the Court of Session, to describe the sex of a person at birth, and we use the expression “certificated sex” to describe the sex attained by the acquisition of a GRC.

The legislation with which this appeal is principally concerned is the EA 2010 and we address the effect, if any, of the GRA 2004 on the interpretation of the terms “sex”, “man”, “woman”, and “male” and “female” used in the EA 2010. The central question on this appeal is whether the EA 2010 treats a trans woman with a GRC as a woman for all purposes within the scope of its provisions, or when that Act speaks of a “woman” and “sex” it is referring to a biological woman and biological sex.

The general approach to statutory interpretation in the United Kingdom is well-established. The House of Lords and this court have set out the basic approach on a number of occasions, including in R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349. Most recently, this court set out the approach in R (O) v Secretary of State for the Home Department [2022] UKSC 3; [2023] AC 255 in which Lord Hodge DPSC, giving the leading judgment, stated (paras 29–31):

“29. The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reidof Drem. More recently, Lord Nicholls of Birkenhead stated: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context’ ( R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, 397: ‘Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.’

30. External aids to interpretation therefore must play a secondary role. Explanatory Notes, prepared under the authority of Parliament, may cast light on the meaning of particular statutory provisions. Other sources, such as Law Commission reports, reports of Royal Commissions and advisory committees, and Government White Papers may disclose the background to a statute and assist the court to identify not only the mischief which it addresses but also the purpose of the legislation, thereby assisting a purposive interpretation of a particular statutory provision. The context disclosed by such materials is relevant to assist the court to ascertain the meaning of the statute, whether or not there is ambiguity and uncertainty, and indeed may reveal ambiguity or uncertainty: Bennion, Bailey and Norbury on Statutory Interpretation, 8 ^th ed (2020), para 11.2. But none of these external aids displace the meanings conveyed by the words of a statute that, after consideration of that context, are clear and unambiguous and which do not produce absurdity. …

31. Statutory interpretation involves an objective assessment of the meaning which a reasonable legislature as a body would be seeking to convey in using the statutory words which are being considered. …”

In R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687, Lord Bingham of Cornhill warned against giving a literal interpretation to a particular statutory provision without regard to the context of the provision in the statute and the purpose of the statute. He stated (para 8):

“The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.”

The general approach of focussing on the words which Parliament has used in a provision is justified by the principle that those are the words which Parliament has chosen to express the purpose of the legislation and by the expertise which the drafters of legislation bring to their task. But where there is sufficient doubt about the specific meaning of the words used which the court must resolve, the indicators of the legislature's purpose outside the provision in question, including the external aids described in para 30 of R (O) quoted above, must be given significant weight. As Lord Sales has stated in an extra-judicial writing, “sometimes the purpose for which legislative intervention was required may be the very prominent focus for the...