171. The definition of sex in the EA 2010 makes clear that the concept of sex is binary, a person is either a woman or a man. Persons who share that protected characteristic for the purposes of the group-based rights and protections are persons of the same sex and provisions that refer to protection for women necessarily exclude men. Although the word “biological” does not appear in this definition, the ordinary meaning of those plain and unambiguous words corresponds with the biological characteristics that make an individual a man or a woman. These are assumed to be self-explanatory and to require no further explanation. Men and women are on the face of the definition only differentiated as a grouping by the biology they share with their group.
172. A certificated sex interpretation would cut across the definition of the protected characteristic of sex in an incoherent way. References to a “woman” and “women” as a group sharing the protected characteristic of sex would include all females of any age (irrespective of any other protected characteristic) and those trans women (biological men) who have the protected characteristic of gender reassignment and a GRC (and who are therefore female as a matter of law). The same references would necessarily exclude men of any age, but they would also exclude some (biological) women living in the male gender with a GRC (trans men who are legally male). The converse position would apply to references to “man” and “men” as a group sharing the same protected characteristic. We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group.
173. Moreover, it makes no sense for conduct under the EA 2010 in relation to sex-based rights and protections to be regulated on a practical day-to-day basis by reference to categories that can only be ascertained by knowledge of who possesses a (confidential) certificate. Some of the practical consequences of a certificated sex definition are described in the case presented by Sex Matters. They state that uncertainty and ambiguity about the circumstances in which it is legitimate to treat (biological) women and girls as a distinct group whose interests need to be considered and protected, have the effect that many organisations now feel inhibited in doing so.
174. The definitions in sections 11 and 212(1) are similar (though not identical) to those in the SDA 1975. Mr O’Neill relied on the contrast between the definition in section 212(1) of the EA 2010 which says, “In this Act … ‘woman’ means a female of any age” and the previous provisions in sections 5(2) and 82 of the SDA 1975 which said “‘woman’ includes a female of any age”. We do not consider this change to be significant in context. In both cases, the meaning conveyed is simply to make clear that boys and girls are also included within the definition of man and woman respectively. We do not see the words “includes” and “means” as sufficiently distinctive to lead to any conclusions about whether the EA 2010 was intended to alter or maintain the position under the SDA 1975 that the terms refer to biological sex only.
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