175. It is significant, however, that there is only one definition of sex. The concept of sex is of foundational importance in the EA 2010. The words sex and woman appear across different parts of the Act and in many sections. It would be surprising if the words sex and woman were intended to have different meanings in different sections or parts of the EA 2010, as the Inner House concluded, especially given the definitions of “man” and “woman” in section 212(1) of the EA 2010. Indeed, it would offend against the principle of legal certainty and the need for a meaning which is constant and predictable, especially in the context of an Act with the purposes we have identified, and which has such practical everyday consequences for so many individuals and organisations in society.
176. The general rule, as we have said, is that words or terms used more than once in the same legislation are taken to have the same meaning whenever they appear, and the general purpose of an interpretation provision is to fix the meaning of such a word or term throughout the legislation in question. This presumption can be rebutted where the context requires, even where a saving for context does not appear in the definition section. But this is likely to be rare and giving a variable meaning to a defined term is generally only done where it is clear that there is a genuine drafting error resulting in differential usage of the word or term in the text of the legislation: see for example the observations to this effect in a human rights context in Secretary of State for Work and Pensions v M [2004] EWCA Civ 1343, [2006] QB 380 at para 84.
177. As we shall demonstrate, a strong indicator that the words “sex”, “man” and “woman” in the EA 2010 have their biological meaning (and not a certificated sex meaning) is provided by sections 13(6), 17 and 18 (which relate to sex, pregnancy and maternity discrimination) and the related provisions. The protection afforded by these provisions is predicated on the fact of pregnancy or the fact of having given birth to a child and the taking of leave in consequence. Since as a matter of biology, only biological women can become pregnant, the protection is necessarily restricted to biological women.
178. The repeated references in these sections, to a woman who has become pregnant or who is breast-feeding only make sense if sex has its biological meaning. These plain, unambiguous words can only be interpreted coherently as references to biological sex, biological females and biological males. Put another way, if the acquisition of a certificate pursuant to section 9(1) of the GRA 2004 applies to these words, so that biological women living as trans men (with a GRC in the male gender) are male, they would nonetheless be excluded from protection when pregnant notwithstanding a continued capacity to become pregnant, and duty-bearers would not be able to claim relevant exemptions in relation to their treatment. The protections include the following:
- (a) Section 13(6)(a) (in the context of direct discrimination) provides that “If the protected characteristic is sex” “less favourable treatment of a woman includes less favourable treatment of her because she is breast-feeding”. This provision obviously applies to biological women only. As a matter of ordinary language, it
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