by Michael Foran, UK Constitutional Law Association
In For Women Scotland v The Scottish Ministers, the Supreme Court held that references to ‘sex’ in the Equality Act 2010 pertained to biological sex. In doing so, it affirmed the default common law position, first explicitly stated in Corbett v Corbett and later upheld in Bellinger v Bellinger, that sex means biological sex unless legislation otherwise dictates.
The Gender Recognition Act 2004 (GRA) provides both a mechanism for a person to change their legally recognised sex and a set of provisions to limit the extent of that change. Alongside express limitations preserving the biological sex default in areas such as parenthood, succession, peerages, and sport, s.9(3) preserves that default in relation to any enactment or subordinate legislation where there has been provision made to that effect.
In FWS, the Supreme Court held that the default of biological sex will supersede the GRA where the “terms, context and purpose” of the enactment show that a biological meaning of sex is intended; where there is a “clear incompatibility” between the other enactment and a “certificated sex” reading, or because the provisions of the other enactment “are rendered incoherent or unworkable” by a “certificated sex” reading.
Since then, there have been several first-instance decisions which have grappled with what this means for the provision of single-sex services and the operation of domestic human rights law. Unless an identifiable human rights obligation requires otherwise, most legal provision of single-sex spaces will either be covered by the Equality Act 2010 (EqA) or other legislation to which the FWS test applies.