McConnell (discussed at paras 105–107 above), namely, a pregnant trans man with a GRC who is for legal purposes a “pregnant man”, but a biological woman, would be entitled to protection from discrimination under section 13(1) of the EA 2010 on grounds of gender reassignment – “on the basis that, in so far as the protections afforded to ‘women’ in respect of birth and maternity fall within the regulated activities, he would, in being treated less favourably by being denied those protections, have been directly discriminated against on that ground”.
195. We do not regard either point as justifying a variable definition for sex in the EA 2010. The definition of sex is foundational to the EA 2010. The bare assertion that a variable definition is “not impermissible as a matter of statutory construction” falls far short of providing any compelling basis for concluding that a variable definition was intended in section 212(1) or is required. It is simply not plausible to think that the definition of “sex” as used in the pregnancy and maternity-related provisions is the result of a genuine drafting error. There are no circumstances in which a biological male can become pregnant, and no man can therefore ever be an appropriate comparator in a pregnancy discrimination case. As we have explained, the pregnancy discrimination provisions are deliberately framed on the basis of unfavourable rather than less favourable treatment and tied to biological females for this reason. Given the presumption (which has not been rebutted) that section 212(1) provides a single definition of “woman” for the purposes of the EA 2010, it follows that “woman” wherever used in the EA 2010 must have a single, consistent, stable and predictable meaning.
196. If the Scottish Ministers were right and section 9(1) of the GRA 2004 has effect for the definition of sex throughout the EA 2010, this would suggest a legislative intention to provide protection only for pregnancies of women who do not have a GRC and to exclude persons living in the male gender (biological women) who have a GRC (and so are male on the Scottish Ministers’ case) who may become pregnant (as illustrated by the circumstances of the McConnell case). It is difficult to see any good reason for such an approach. The Scottish Ministers’ second argument about gender reassignment discrimination seeks to address the oddity of this result but is unsatisfactory as a response: on their case a man denied the protections available to women for pregnancy and maternity is most obviously treated differently on grounds of sex and not gender reassignment, but sex discrimination cannot run. Parliament plainly intended biological women to benefit automatically from these protections and it is unlikely to have been the legislative intention that a pregnant trans man with a GRC (legally male but biologically female) should have to pursue gender reassignment discrimination in order to obtain the benefit of such protection, whereas a pregnant trans man without a GRC (legally and biologically female) is automatically entitled to them as a woman.
197. In any event, this alternative argument fails to engage with the more important consequence of the rejection of a variable definition of sex for the Scottish Ministers’ arguments. Just as the pregnancy provisions manifestly require sex, woman and man to be interpreted in accordance with the biological meaning of those words, the same is also
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