A detailed legal analysis which explains why the case of For Women Scotland was wrongly decided by the UK Supreme Court
This paper undertakes a detailed critique of the UK Supreme Court’s judgment in For Women Scotland (“FWS”), arguing that the Court misapplied both the correct interpretative approach and the relevant EU‐derived equality law, and as a result, has potentially put the UK in breach of its obligations during the transition period.
The paper sets out to examine each of the seventeen “premises” summarised by the UKSC at para 265 of its judgment. After outlining the background and procedural history of FWS, the paper analyses premises 1–17 in sequence, before assessing whether the Court’s ultimate conclusion that sex in the Equality Act 2010 relates to biological sex rather than certificated sex is factually, legally and procedurally justified.
The paper concludes that, on a proper purposive, EU‑conforming reading—reflecting the directives’ definitions and the CJEU’s settled caselaw—the term “sex” in the Equality Act must be given a “certificated” (acquired) sex reading. The Supreme Court’s contrary conclusion is factually, legally and procedurally flawed, and may well have placed the UK in breach of its transition‐period commitments under the EU-UK Withdrawal Agreement.
You can read the executive summary for this paper here:
Executive Summary of why the case of For Women Scotland was wrongly decided180.43 KB
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