186. We have dealt with considerations affecting pregnancy above and they apply equally to paragraph 2(2)(a). Paragraph 2(2)(b) is broader. A certificated sex interpretation would make paragraph 2(2)(b) unworkable: it would be impossible to identify “risks specifically affecting women” because the same health or safety risks would also naturally and inevitably be risks that affect trans men with a GRC who would be legally male on this interpretation (albeit biologically female) and therefore liable to be affected by the same risks.
187. A similar point can be made in relation to the provision made by Schedule 7 paragraph 1 which provides that “Neither a sex equality clause nor a maternity equality clause has effect in relation to terms of work affected by compliance with laws regulating— (a) the employment of women; (b) the appointment of women to personal or public offices”; and to the provision made by Schedule 9 paragraph 20 in relation to insurance contracts and sex discrimination (see paras 183 and 184 above). In both cases, the need to identify laws or the assessment of risk affecting women as a group is rendered difficult if not impossible by a certificated sex interpretation of sex in these provisions.
188. These provisions and the protection against pregnancy and associated (maternity and breast-feeding) discrimination in the EA 2010 are expressly tied to the plain and unambiguous words “woman”, “maternity” and the pronouns “she” and “hers”. There are no references to risks specifically affecting men, or to a man (or person) who has become pregnant, requires paternity leave or is breast-feeding. The only reference to a man in this context is in section 13(6)(b) which prevents men from complaining about the special treatment accorded to women in connection with pregnancy or childbirth. These provisions are all incoherent and unworkable unless woman and man have their biological meaning.
(16) No variable definition of woman
189. The Second Division of the Inner House recognised the force of this manifestly obvious conclusion in relation to provisions related to pregnancy and maternity. The Inner House concluded that since pregnancy is a matter of fact which hinges entirely on biology, these provisions do mandate a biological meaning of sex (paras 61 and 62 of the judgment). In reaching that conclusion, the Inner House also recognised that there might be other provisions in the EA 2010 where it might equally be necessary to adopt what they described as a “contextual interpretation” of sex as “based on biology” (para 53). However, the Inner House regarded it as impractical to examine every section and every schedule of the EA 2010 to address this possibility.
190. At para 62 the Inner House continued:
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