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The Equality and Human Rights Commission (EHRC) was granted permission to intervene in the Supreme Court appeal of For Women Scotland v Scottish Ministers. The EHRC yesterday published its written submission in advance of the hearing next week (26 and 27 November 2024).

As Britain’s expert and impartial equality regulator, the EHRC’s intervention in this appeal seeks to assist the Supreme Court in assessing the legal and practical implications of the case. 

Baroness Kishwer Falkner, Chairwoman of the Equality and Human Rights Commission, yesterday said:  

“The central issue raised by this appeal is how ‘sex’, ‘man’ and ‘woman’ are defined in the Equality Act 2010.

“On that point, our position is that when Parliament passed the Equality Act, it intended those who have acquired a Gender Recognition Certificate (GRC) to be treated as their certified sex. So a trans woman with a GRC is legally recognised as a woman under the Equality Act, and a trans man with a GRC is legally recognised as a man. 

“We look forward to the Supreme Court’s judgment providing an authoritative interpretation of the existing law in this area.” 

Addressing the difficulties created by the definition of ‘legal sex’, set out in the EHRC’s submission, Baroness Falkner continued: 

“We believe there are far reaching problems with the practical application of the Equality Act in relation to this definition.

“It creates significant inconsistencies, which impair the proper functioning of the Equality Act and jeopardise the rights and interests of women and same-sex attracted people. These difficulties include the challenges faced by those seeking to maintain single sex spaces, and in the rights of same-sex attracted persons to form associations. We think clarity is important to everybody affected by these issues properly understanding and exercising their rights.

“It is unlikely that Parliament appreciated these consequences when it passed the Equality Act, and they have become more serious with societal change since that time.  

“As the equality regulator, we deem this to be a wholly unsatisfactory situation, which Parliament should address with urgency. 

“In April last year we provided advice on clarifying the definition of ‘sex’, in response to a request from the then Minister for Women and Equalities. It is our view that the arguments at the heart of this case once again highlight the importance of Parliament giving careful consideration to amending the Equality Act 2010 and the current balance of rights under the Act.” 

Read the Equality and Human Rights Commission’s written submission to the Supreme Court appeal of For Women Scotland v Scottish Ministers.

Related information

• Statement following Lady Haldane's opinion on the petition of For Women Scotland Ltd for judicial review (December 2022)
• Statement on clarifying the definition of ‘sex’ in the Equality Act (April 2023)