Michael Foran: Equality Act and sex – important Scots cases on the horizon

Michael Foran: Equality Act and sex – important Scots cases on the horizon

Dr Michael Foran

The next few months are set to see two important cases making their way through the Court of Session, both of which concern the meaning of sex within the Equality Act. The first is the appeal of Petition of for Women Scotland [2022] CSOH 90 and the decision of Lady Haldane that sex means sex as modified by a gender recognition certificate for the purposes of the Equality Act. The second is the Scottish government’s judicial review of the s.35 order used to prevent the Gender Recognition Reform (Scotland) Bill from obtaining royal assent, where an important question will be whether the Gender Recognition Act modifies the meaning of sex within the Equality Act.

I have written elsewhere that if sex, for the purposes of the Equality Act, means sex as modified by a GRC, it will make many of the provisions within the Act unworkable or at the very least counter-intuitive. In this post, I want to explore the different ways that the law deals with sex. Legal terms either take on their natural, ordinary meaning or they take on a special, technical meaning. When the latter occurs, some areas of law will be regulated by the technical or artificial meaning and some areas will be regulated by the natural meaning. When it comes to sex, this is exactly what has happened and the question we are now faced with is whether sex in any given context takes on its ordinary meaning or its technical meaning.

The leading case on sex in law is Corbett v Corbett (orse Ashley) [1971] P 83, concerning the validity of a marriage between two biological males, one of whom was a male-to-female transsexual, April Ashley. Ormrod J was careful to be clear that his decision in this case was “not concerned with determining the ‘legal sex’ of [April Ashley] at large”. The task before the court was to determine her sex for the purposes of marriage.

Ormrod J then summarised the general approach of law to the regulation of sex, noting at p. 105, that “legal relations can be classified into those in which the sex of the individuals concerned is either irrelevant, relevant or an essential determinant of the nature of the relationship”. A vast area of the law is completely indifferent to sex. When the law does differentiate, it is usually for reasons relating to the needs and rights of everyone involved. In some areas of policy, such as in pension schemes, life assurance, or state run schemes such as national insurance, sex is relevant but not an essential determinant. This is because, “there is nothing to prevent the parties … agreeing that the person concerned should be treated as a man or as a woman, as the case may be. Similarly, the authorities, if they think fit, can agree with the individual that he shall be treated as a woman for national insurance purposes, as in this case”. In other areas, the law recognises that sex is “an essential determinant”, meaning that biological sex is so important, so integral to the purpose of the law in that area, that it cannot be ignored. Into this category, Ormrod J placed marriage as it was then understood.

This distinction is why April Ashley could be considered to be a woman for the purposes of National Insurance; here sex is relevant but not ultimately determinative. Similarly, people can change the sex on their passport, even without a Gender Recognition Certificate.

What this means is that the meaning of sex will change in law depending on the purpose of that area of law. For marriage at this time, legal sex was biological sex. For National Insurance schemes, there was scope for relevant authorities to adopt a more technical or artificial approach whereby the category of women could include biological women and post-operative transsexual males. There is therefore no overarching category called ‘legal sex’ that is distinct from biological sex. Rather, for the purposes of most areas of law, sex is irrelevant. Where it is relevant, legal sex either must mean biological sex or it could mean something more technical, depending on whether biological sex is essential for that area of law.

So it is not quite correct to say, as many commenters do, that Corbett v Corbett is authority for the claim that sex means biological sex for all legal purposes at common law. It is authority for the claim that in domestic law, sex means biological sex for those legal purposes where biological sex is an essential determinant. This has been confirmed by the House of Lords in A v Chief Constable of West Yorkshire Police [2004] UKHL 21 where, at [30] Lady Hale notes that the law presumes that a person’s legal sex is “fixed at birth for the purpose of all legal provisions which make a distinction between men and women”. In those cases, legal sex and biological sex are synonymous; a person’s sex as recognised by law is the same as their biological sex. In other areas, the law recognises that there can be a distinction between legal sex and biological sex so that an individual may be biologically male but legally female for that specific purpose. While Ormrod J was clear in Corbett v Corbett that “it is common ground between all the medical witnesses that the biological sexual constitution of an individual is fixed at birth (at the latest), and cannot be changed … [April’s] operation, therefore, cannot affect her true sex”, this did not mean that her legal sex was always reflective of her biological sex, as indeed, it was not for the purposes of National Insurance.

This becomes even more complicated when one considers Goodwin v United Kingdom which held that for post-operative transsexuals, Article 8 requires there to be legal recognition of the “acquired gender”. It’s important to note here that in this context gender and sex are being used interchangeably, as evidenced by s. 9(1) of the Gender Recognition Act, introduced to give legal effect to the decision in Goodwin, which states that:

“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).”

References to acquired gender in law are references to a technical meaning of legal sex which departs from the norm where sex in law means biological sex. So we have two questions when considering the meaning of sex within the Equality Act. The first is what sex means in the Act on its ordinary construction, absent the deeming provision in the Gender Recognition Act. The second is, if the answer to that question is biological sex, whether the Gender Recognition Act modifies this via s. 9(1) to mean sex as modified by a Gender Recognition Certificate instead.

On the first question, we can draw upon Corbett and A to conclude that because the Sex Discrimination Act 1975 and the Equality Act 2010 do make important distinctions between men and women, particularly on the basis of biological differences, it is highly likely that sex discrimination is an area where biological sex is essentially determinant. This is bolstered by the conclusion of the court in Bellinger v Bellinger that the expressions ‘male’ and ‘female’ are to be given their ordinary, natural meaning unless there is good reason to conclude that they should be given a technical, artificial, legal meaning. As the EHRC has noted, an artificial meaning of sex in the Equality Act would cause considerable confusion and render many of its provisions inoperative or nonsensical.

On the second question, it is important to place s. 9(1) of the Gender Recognition Act into its proper context. While it is true that s. 9(1) purports to modify the meaning of sex in all areas of law, removing the concept of biological sex and replacing it with this technical meaning wherein sex means biological sex unless modified by a GRC, that is itself qualified by s. 9(3) which states:

Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.

The Equality Act has provisions which set out its own definition of sex. S. 11(a) states that “a reference to a person who has a particular protected characteristic [of sex] is a reference to a man or to a woman”. S. 212 then states that “man” means a male of any age and “woman” means a female of any age. Once the Equality Act as a whole is taken into account, it is clear that these provisions can only make sense if they refer to biological sex. This means that the Equality Act is an area where biological sex is essentially determinant and it also means that the provisions within the Equality Act which set out these definitions almost certainly engage s. 9(3) of the Gender Recognition Act to disapply the deeming provision in s. 9(1).

Sex, for the purposes of equality law, is biological sex. This does not mean that trans people are denied protection under the Equality Act. As far back as the 1990s, EU, ECHR, and UK law have recognised “gender reassignment” as a separate ground for protection from unlawful discrimination. That protection remains in the Equality Act and is in no danger of being repealed, nor should it be. Properly understood, our equality law protects people both from sex discrimination and from discrimination because of being trans (“gender reassignment”) and that is the way it should remain.

Dr Michael Foran is a lecturer in public law at Glasgow University

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