“17(1) A person does not contravene section 39(1)(b) or (2), so far as relating to pregnancy and maternity, by depriving a woman who is on maternity leave of any benefit from the terms of her employment relating to pay.”
181. The points we have made above apply with equal force to this provision. Moreover, that the language of “woman” and “her” is deliberate is underscored by a comparison with the immediately following paragraph, paragraph 18, relating to exceptions for benefits dependent on marital status. Paragraph 18 allows access to benefits dependent on marital status to be restricted or refused on grounds of sexual orientation if they accrued or were payable before 5 December 2005 (the day on which section 1 of the Civil Partnership Act 2004 came into force). It does so by identifying those not covered by the exemption in paragraph (1A) as a “person” who is:
“(1A) … (a) a man who is married to a woman, or (b) a woman who is married to a man, or (c) married to a person of the same sex in a relevant gender change case.
(1B) The reference in sub-paragraph (1A)(c) to a relevant gender change case is a reference to a case where— (a) the married couple were of the opposite sex at the time of their marriage, and (b) a full gender recognition certificate has been issued to one of the couple under the Gender Recognition Act 2004.”
182. Three points follow. The references to “man” and “woman” in paragraph 18(1A)(a) and (b) can only be interpreted by their biological meaning for obvious reasons. The reference to a person in (c) is otherwise rendered meaningless, and the provision is unworkable. Secondly, the draftsperson was fully cognisant of the GRA 2004 and plainly understood its unequivocal consequences in the case of marriage where a GRC has been issued. Where the legislation extends to a person to whom a full GRC has been issued, this is done by express provision referring to a “relevant gender change case” and not by the implicit adoption of a legally constructed concept of sex as certificated sex. Thirdly, the Scottish Ministers and the EHRC submit that this provision would be unnecessary if “sex” in the EA 2010 meant biological sex only, as the couple concerned would not in fact be married to a “person of the same sex in a relevant gender change case”; they would still be married to a person of the opposite sex. We do not accept this contention. The GRA 2004 unequivocally applies to the law relating to marriage. This is a consequence of the GRA 2004 itself and not a consequence of interpreting sex in the EA 2010 in any particular way.
183. Schedule 9 paragraph 20 relates to insurance contracts. It provides:
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