Martin Davie
On the 16 April the UK Supreme Court ruled in favour of an appeal by the campaign group For Women Scotland against a decision by the Scottish Government to count transgender women as women for the purposes of increasing women’s representation on public boards in Scotland.
For Women Scotland objected to this decision on the grounds that in the Equality Act 2010 the term ‘sex’ means biological sex and therefore a transgender woman should not be counted as a woman for the purpose of increasing female representation on public boards in Scotland.
The Supreme Court’s judgement on the matter agreed with the argument put forward by For Woman Scotland. As the official summary of their judgement explains ‘the terms ‘man,’ ‘woman’ and ‘sex’ in the EA 2010 refer to biological sex.’ [1]
Although, as noted above, the appeal by For Woman Scotland which the Supreme Court allowed covered a very specific issue, the basis of its decision, namely that the Equality Act defines the terms man and woman with reference to people’s biology, means that the Supreme Court’s judgement meant that in all cases to which the provisions of the Equality Act apply men and women means biological males and biological females. Consequently, transgender men and transgender women cannot be regarded as men and women for these purposes.
The law is now clear on this matter and both individuals and organisations will have to have to have regard to this reality in their application of the Equality Act. That is why the Equality and Human Rights Commission (EHRC), the body that oversees the application of the Equality Act, has been asked to give guidance on the matter as a matter of urgency, with their interim guidance having already been given.
The Church of England will have to take account of the Supreme Court’s decision and guidance given by the EHRC because it is subject to the law of the United Kingdom. However, it is also subject to the law of God, and just as it has to accept the reality of what UK law now says about what it means to be male or female for the purposes of the Equality Act so also it has to accept the reality of what God’s law says about what it means to be male or female.