A high profile decision from the UK Supreme Court this week, For Women Scotland Ltd v The Scottish Ministers [2025] UKSC 16 (16 April 2025) (“FWS“), holds that the word “sex” as used in the UK anti-discrimination legislation the Equality Act 2010 (UK) (“the EA 2010”), means biological sex, and that the term does not change its meaning in relation to those who have obtained a gender recognition certificate (“GRC”) under the Gender Recognition Act 2004 (UK) (“the GRA 2004”). In the circumstances of this case, this meant that where a “quota” had been established for certain governance roles requiring 50% of non-executive members to be women, that quota could not be met by including those with an “acquired gender” of female due to their holding a GRC.
But the ramifications of the decision go far beyond the specific quota legislation. The question that the court had to address was whether references to “sex”, “women” and “men” in the EA 2010 included those who held GRC’s and had an “acquired” or “certificated” sex. After an extensive review of the general provisions of the discrimination law, the court unanimously concluded that a GRC did not have the effect of deeming someone to have changed their sex for the purposes of the EA 2010.
As they sum up near the end of the decision, at [265] item (xviii):
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.
As they point out, this does not remove other protections provided by the EA 2010 to transgender persons, whether or not they hold a GRC. But the ruling will have the effect that it will be possible to establish rules requiring that single-sex spaces such as changing rooms, bathrooms, and other areas designed for the use of one sex, can be reserved for those who have that biological sex and will not have to be made available to those who have the relevant sex through a GRC or claim to be of that sex on some other ground (see references to those issues in para [265] items (xiv) and (xv).)
While the decision itself does not refer to religious belief issues, the case will have important implications for religious groups whose conviction is that a person’s sex is that given at conception biologically, and cannot be later changed by other processes. (For a recent careful and scholarly analysis of the Christian perspective on these issues, see Robert S Smith, The Body God Gives (Lexham Academic, 2025), esp Part 3.) In the UK, those groups will be able to apply this view in the way that they provide services for men or women, or for girls or boys, in accordance with their faith commitments.
Of course the decision is not directly relevant to the law of Australia. But in this post I want to briefly compare the reasoning of the UK Supreme Court in its consideration of the EA 2010, with how a court in Australia might approach similar issues under Australian law, in particular in relation to the federal Sex Discrimination Act 1984 (Cth) (“SDA 1984”). Readers of this blog may recall that we have had a decision of a single judge commenting on some of these issues in the Tickle v Giggle litigation, which I previously suggested was wrongly decided. The reasoning of the Supreme Court of the UK here strongly supports my view that comments about the meaning of the category of “sex” made by the judge in that case were incorrect and should not be supported on appeal. (For an excellent overview of the FWS decision by a UK legal scholar cited by the court, see Michael Foran, “Sex has always meant biological sex“.)
Continue reading
Law and Religion Australia 