Biological differences between the sexes are perhaps at their most obvious when considering sporting competition. This chapter considers the law in relation to sporting competition from two distinct perspectives. The first looks at the case law of the European Court of Human Rights as it relates to the participation of athletes with DSDs in the female category. A central theme in this analysis is the importance of understanding the precise nature of a particular DSD before legal analysis can be conducted. The second part looks at the domestic law in relation to sporting competitions and takes the opportunity to examine the first case to apply the Supreme Court judgment in For Women Scotland v. The Scottish Ministers and provide detailed reasons. This is a convenient opportunity to restate the key implications of the case and to address, as the court did, some common arguments advanced to criticise or narrowly interpret the Supreme Court judgment.

When it became clear that gender critical belief is protected in our anti-discrimination law, it was often said that, while such views were protected, manifesting or expressing them was not. This is simply not true. Article 9 of the European Convention on Human Rights protects both the absolute right to hold a belief and the qualified right to manifest a belief. The manifestation of protected beliefs is also protected under Article 10, which protects the right to freedom of expression. Because these are qualified rights, it may be permissible to interfere with them where proportionate. Where discrimination or harassment arises because someone holds gender critical views, this will be unlawful. However, where the treatment complained of is a genuine response to the fact or manner of manifestation of a protected belief, the legal situation becomes more complex. In assessing the extent to which is it permissible for an employer or other duty-bearer to interfere with the fact or manner of manifestation of a protected belief, the central importance of freedom of expression must be recognised as the background context of any analysis.

This use of preferred pronouns for those with trnsgender identities is extraordinarily contentious within the context of debates on sex and gender identity. This chapter begins by exploring why pronouns are so contentious, arguing that their use is an important signifier of underlying beliefs about the relationship between sex and gender identity. From here, the chapter explores whether and under what conditions an emplouyer could interfere with the expression of employees to prohibit or compell the use of particular pronouns. It concludes that this will require a fact-sensitive analysis which begins from the understanding that the right to freedom of expression is robustly protected, especially in the context of compelled speech.

Over the last half century, there have been developments within European human rights law which have afforded protection to those undergoing gender reassignment. This chapter traces this development, centred around what the law referred to as ‘transsexualism’, understood in distinctly medical terms. The first major development came with the expansion of sex-based discrimination protections to also protect those who were proposing to undergo, who were undergoing or who have undergone medical procedures related to gender reassignment. This expansion of anti-discrimination protections relied on comparators of the same biological sex not undergoing reassignment, rather than altering the core meaning of sex in domestic law. Eventually, however, human rights law developed to protect a right to gender recognition in the landmark case of Goodwin, where the European Court of Human Rights held that denial of legal gender recognition from post-operative transsexuals violated their right to private life. Parliament responded by enacting the Gender Recognition Act 2004, providing a mechanism to change one’s legal sex but also setting clear limits on the scope and extent of that change, including where it would conflict with the purposes of other legislation.

This Chapter explores how consent to sexual activity can be vitiated for the purposes of sexual offences where the defendant has engaged in an operative deception as to biological sex. It offers a defence of the current legal doctrine, drawing upon Chloë Kennedy’s theory of consent vitiation by identity non-recognition. The central argument is that the current law correctly identifies that homosexual sexual activity is of a different sexual nature to heterosexual activity and is of central importance to the formation of sexual orientation and sexual identity, particularly for lesbians and gay men. An operative deception as to biological sex is sufficiently proximate to the sexual nature of the activity in question that it is capable of vitiating consent. In contrast, Alex Sharpe argues that the privacy of transgender people should take precedence over the sexual integrity of others and that sexual boundaries based on biological sex are transphobic and prejudiced, equivalent to racism. For this reason, Sharpe argues that transgender people should be immune to the criminal law of sex by deception as to sex. The chapter concludes by critiquing this view and defending the importance of sexual orientation for the freedom and capacity of people to choose to engage in sexual activity.

This chapter explores how the law has identified the biological sex of an individual where it is indeterminate or contested. Legal systems with highly ridged sex-based rules developed social and legal mechanisms for authoritatively determining what sex a person was where this was unclear. The traditional approach of the law was to categorise the individual in question by reference to which sex was more ‘predominate’, following a crude assessment of physiology. The classification of sex has evolved significantly since then, with the House of Lords identifying a precise list of ‘indicia of human sex’. In determining biological sex, the law looks for congruence between a person’s chromosomes, gonads and genitals at birth. If there is congruence, then the law will treat that person as biologically male or female as the case may be. If there is incongruence between the physiological factors, that person is recognised as having a DSD and is subject to a separate legal analysis which looks to further factors to determine what sex an individual is classed as, including social upbringing and self-perception. Our law does not conflate issues of sexual development with issues of gender identity. The default position in our law is that a transgender person is legally recognised as being of their biological sex, regardless of medical intervention.

One of the most contentious issues relting to sex and gender identity is whether a transgener person has a right to keep informaiton about their biological sex private from others. Related to the right to freedom of expression, discussed in previous chapters, is the countervailing right to private life. Nowhere encapsulates the potential for human rights to conflict more clearly than the tension between the interest of one person to disclose information that another party would rather be kept private. This chapter examines circumstances when it may be lawful to disclose information about the biological sex of another when they would strongly wish that information not be shared at all. Relatedly, it explores circumstances when heightened rights of privacy may obtain as a result of data protection obligations placed on businesses and public bodies. There is no absolute right to keep the fact of one’s sex private, but there may be some circumstances where one has a reasonable expectation of privacy and where disclosure may be unlawful.

This chapter provides a detailed analysis of the UK Suprme Court’s decision in For Women Scotland v The Scottish Ministers, the landmark case which considered the definition of sex in the Equality Act 2010. The Court set out a test for determining when a Gender Recognition Certificate will not modify an individual’s legally recognised sex. In so doing, the Court reiterated the default common law position that sex is binary, biological, and immutable as a matter of fact. The Gender Recognition Act will not modify an individual’s legally recognised sex where the terms, context, and purpose of another enactment show that sex was intended to mean biological sex, because of a clear incompatibility between a certificated reading of sex and another enactment or where an enactment’s provisions are rendered incoherent and unworkable by a certificated sex interpretation. Applying this test to the Equality Act 2010, the Court concluded that a biological meaning of sex prevails. In concluding as such, the Court maintained equality of status for those protected under the characteristic of gender reassignment and reiterated that transgender people remain protected from associative or perception-based sex discrimination. While doctrinally a modest clarification, the judgment has significant social impact, correcting widespread misinterpretations of sex and gender in law.

This Chapter outlines the position in both anti-discrimination law and workplace health and safety law as it relates to the provision of women-only spaces and services, including sanitary, showering, and changing facilities. Within the workplace, there is limited discretion afforded to employers: single-sex toilets, showers and changing rooms must be provided if such facilities are offered on a communal basis, i.e. where more than one person uses the facility at the time. For services to the public, things are more complex. The default position is one of non-discrimination, meaning that unless there is some exception, it is unlawful to provide a service for men but not women or women but not men. Where there is an exception, a service provider must operate within the bounds of that exception to avoid liability. It has long been established that there is no entitlement to access single sex services for the opposite biological sex purely based on self-identification. This chapter considers whether and under what circumstances it may be lawful to offer ‘trans-inclusive’ services.

The introduction traces the history of legal discrimination against women in the UK, from exclusion in university education and voting rights to the legal profession. Courts presumed sex-based distinctions as default, requiring parliamentary intervention for reforms including women’s suffrage, equal pay, and the protection of women from sex discrimination and sexual harassment in the workplace. The Sex Discrimination Act 1975 prohibited discrimination while allowing exceptions for protection of women, including single-sex spaces. These legal developments operated on a tacit understanding of sex as biological sex, which can be distinguished from emerging concepts of gender as a system of social norms overlayed on biological sex and gender identity as an individuals internalised experience of these norms. The chapter then provides a descriptive overview of the Equality Act 2010 as a resource for readers unfamiliar with its structure and core principles.

As reform of the Gender Recognition Act 2004 went out for government consultation, the interaction between trans rights and women’s rights became a topic of considerible contention. Many women who voiced concern about gender recognition reform suffered discriminaiton and harassment in the workplace. This chapter traces the development of the law on philosophical belief discriminaiton to protect gender critical belief focused on the reality, immutability and importance of biological sex. It argues that the belief in the importance of biolopgical sex is core to the protection and necessary to distinguish gender critical belief from mere opinions based on science or accepted evidence. The chapter concludes by examiing the limits of protection, including where a belief is unworthy of respect in a democratic society because it includes within it group-based intolerance of prejudice.

This chapter traces the legal development of trans rights advocacy away from a medical model towards one based on gender identity. This shift resulted in an expansion of both terminology and concepts to encompass a broader cohort of individuals than previously envisaged. This eventially led to attempts by activists to reform the law towards a self-identification model. Both the Scottish and the UK government proposed gender recognition reform. After consultation, the UK government abandoned the project, concerned about the impact on women’s rights, but the Scottish government pressed ahead, ultimately leading to a legal dispute when the UK government used a power within devolution law to prevent the Scottish Gender Recognition Reform Bill from obtaiingn Royal Assent. This Chapter analyses the impact that self-identification of sex would have had on women’s sex-based equality rights and the resulting legal challenge brought to the lawfulness of the UK goverment blocking Scottish gender recognition reform.