One of the important judicial functions is the interpretation of statutes. Judges must determine what Parliament meant when it used certain words in a statute.
The UK Supreme Court recently undertook an example of that exercise in the case: For Women Scotland Ltd v The Scottish Ministers. The statute under consideration was the Equality Act 2010, which prohibits discrimination based on age, gender, disability, race and other characteristics.
Its decision has reverberated around the world.
The question before the court was straightforward: whether the act treats a trans woman who has a full gender recognition certificate (as opposed to the sex stated on a birth certificate) as a woman for all purposes within the scope of its provisions, or, when it speaks of a “woman” and “sex,” does it simply refer to a biological woman and biological sex?
The court unanimously decided that the terms “man”, “woman” and “sex” in the act refer to biological sex. “The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary,” it ruled. “A person is either a woman or a man.”
Some provisions in the act refer to biological women. The Scottish court suggested that in provisions relating to pregnancy and maternity, Parliament was referring to biological sex only. However, the Scottish appeal court suggested that in other situations, “woman” and “sex” could refer to certificated sex as well.
The Supreme Court decision last month disagreed with this second point. Interpreting “sex” as certificated sex would cut across the definitions of “man” and “woman,” creating inconsistencies that, in some instances, the law would struggle to deal with.
The court ruled the act must be interpreted in a clear and consistent way. This ensures groups such as employers can identify people with relevant characteristics and meet their obligations under the act.
The effect of the decision is that the biological interpretation of “sex” is necessary for the act to function sensibly. This applies across numerous contexts and examples, including separate spaces and single-sex services such as changing rooms and medical services, and communal accommodation. It also affects single-sex higher education institutions, single-sex associations and charities. The same is true for women’s participation in sport, the public sector’s duty of employment equality, and the armed forces.
English commentator Joshua Rozenberg KC observes that “the thrust of the judgment … is that trans women cannot insist on being treated in the same way as biological women, even if they have a gender recognition certificate. So the ruling is likely to make it harder for trans people to insist on being treated in exactly the same way as those who have not transitioned.”
Evolutionary biologist Richard Dawkins was more acerbic. In a post on X, he said, “Yes, the science was settled in the Precambrian [era]. Nice that the law has finally caught up.”
The court did make an important observation: “It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word ‘woman’ other than when it is used in the provisions of the Equality Act 2010. It has a more limited role which does not involve making policy.”
Once upon a time, decisions of the UK Supreme Court (formerly the House of Lords) were highly persuasive for our courts.
Whether our courts (including our Supreme Court) adopt a similar approach remains to be seen. However, this clear precedent on the limits of judicial policymaking provides a powerful reminder of proper judicial restraint. It might hopefully stem the tide of judicial overreach in New Zealand.
David Harvey is a retired district court judge.
