Beyond the cold text, can law define gender identity?

This week, the UK Supreme Court handed down an important judgement in the case of For Women Scotland Ltd v The Scottish Ministers. At issue was a legal challenge to statutory guidance issued by the Scottish Government. In Scotland, public boards are mandated to have 50% representation of women (similar to a mandate of having representation of women on corporate boards in India). The statutory guidance clarified that trans women with a gender reassignment certificate are to be treated as “women” for the purpose of computing this 50%. For Women Scotland challenged this statutory guidance, resulting in the judgement.

In a widely reported judgement, the UK Supreme Court held that the term “sex” under the Equality Act 2010 means biological sex and, by extension, the definition of “man” or “woman” means a biological man and a biological woman. The Court grounded its understanding in the manner in which the term “sex” has been used in diverse contexts in the Equality Act. In particular, it focused on specific protections granted by the statute to women, such as in the context of pregnancy, breast-feeding and maternity. It reasoned that the UK Parliament could not have intended for a transwoman i.e. biological man to require these protections. And hence the focus of the legislation, when defining sex, was confined to biological status alone.

The Court also seemed to reassure the trans community that its ruling would not strip them of legal protection. It did so on the basis that one of the protected characteristics (a legal term meaning a feature of one’s identity based on which one cannot be discriminated against) under the Equality Act is gender reassignment. Further, it held that a trans person may also, in some circumstances, legitimately complain of sex-based discrimination. Illustratively, if a transwoman is not hired for a sales position despite performing best in the interview because the sales manager thinks that she is a biological woman based on her appearance and instead gives the job to a biological man, she can complain of sex-based discrimination in the same way a biological woman could do so. However, this reassurance is only partially true. This is because the transwoman’s ability to bring a claim of sex discrimination here hinges on how the sales manager “perceives/thinks of” her, rather than on her gender identity itself.It may well be the case that the Equality Act in the UK, much like anti-discrimination statutes across the globe, was not drafted while having regard to the needs and challenges of the LGBTQ+ community. In such a circumstance, judges have to play a critical role to ensure that statutory provisions are interpreted in a manner which keeps pace with changing societal realities.

Judges often like to state that they are not concerned with policy issues and their job is confined to interpreting the black letter law. This may not always reflect the correct position. For instance, in this case the Court, while stating that it was not concerned with deciding the appropriate policy, relied on a range of policy-based considerations to support its reading of the Equality Act. This included, for instance, its treatment of communal places which are of a single-sex character, such as bathrooms and sleeping arrangements. It held that allowing transwomen, for instance, to be admitted in these single-sex facilities as women would militate against the goal of maintaining decency and privacy which form the reason why such single-sex arrangements are made in the first place. So judges would do well to openly acknowledge the policy-based considerations that consciously or unconsciously shape their reasoning rather than pretend that such considerations are irrelevant.

In India, the Supreme Court’s judgement in National Legal Services Authority v. Union of India protects a person against discrimination on the bases of their self-perceived gender identity. Our Constitution, in Articles 15 and 16, protects persons against discrimination on the basis of their “sex”. In the Navtej Singh Johar judgement, which struck down Section 377 of the IPC insofar as it criminalises homosexual intercourse, some of the judges seemed to suggest that “sex” would also include sexual orientation.

However, our courts are yet to grapple with the critical and sensitive issues like the ones at issue in the UK. What can be stated with confidence is that questions of this nature will soon confront our courts, in the context of education, employment, shared communal spaces, sporting competitions and beyond. They would do well to be alive to the human lives that stand to be impacted by the cold and bloodless text up for their consideration. Only then would they be able to ensure a just resolution of such controversies.

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.