UK Supreme Court Interprets Meaning of "Sex" In UK's Equality Act as Biological Sex

In For Women Scotland Ltd. v. The Scottish Ministers, (UK SC, April 16, 2025), the United Kingdom Supreme Court held that considering the interaction of the Gender Recognition Act 2004 with the Equality Act 2010, the terms "woman", "man", and "sex" in the Equality Act refer to biological sex.  The Equality Act gives separate protection to persons who have undergone or are proposing to undergo sexual reassignment. The court explains the limited question it is deciding:

24. ... [A] person who is aged at least 18 can apply for a GRC [Gender Reassignment Certificate] under the GRA 2004. Section 9(1) of that Act provides that when a full GRC is issued to a person the person’s gender becomes “for all purposes” the acquired gender so that if the acquired gender is the female gender, the person’s sex becomes that of a woman....

25. The central issue on this appeal is whether references in the EA 2010 to a person’s “sex” and to “woman” and “female” are to be interpreted in the light of section 9 of the GRA 2004 as including persons who have an acquired gender through the possession of a GRC. 

26. The focus of this appeal is not on the status of the large majority of trans people who do not possess a full GRC. Their sex remains in law their biological sex. This appeal addresses the position of the small minority of trans people who possess a full GRC....

The court summarized its ruling in part as follows:

265.... (xii) Gender reassignment and sex are separate bases for discrimination and inequality. The interpretation favoured by the EHRC and the Scottish Ministers would create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a GRC [Gender Reassignment Certificate] greater right than those who do not. Those seeking to perform their obligations under the Act would have no obvious means of distinguishing between the two sub-groups to whom different duties were owed, particularly since they could not ask persons whether they had obtained a GRC.... 

(xiii) That interpretation would also seriously weaken the protections given to those with the protected characteristic of sexual orientation for example by interfering with their ability to have lesbian-only spaces and associations.... 

(xiv) There are other provisions whose proper functioning requires a biological interpretation of “sex”. These include separate spaces and single-sex services (including changing rooms, hostels and medical services), communal accommodation and others.... 

(xv) Similar incoherence and impracticability arise in the operations of provisions relating to single-sex characteristic associations and charities, women’s fair participation in sport, the operation of the public sector equality duty, and the armed forces....

The UK Supreme Court also issued a 4-page Press Summary of the Court's 88-page Opinion. And CBS News reports on the decision.

British Court Upholds School's Ban on Student Prayer

In The King (On the application of TTT) v. Michaela Community Schools Trust, (High Ct., Kings Bench, April 16, 2024), a British trial court in an 83-page opinion rejected a Muslim student's challenge to a secular secondary school's Prayer Ritual Policy (PRP) that prevented the student from using part of her lunch break to perform her Duhr prayer. The policy was adopted by the high-performing school, in which half of the students were Muslim, after prayer by some students led to divisions within the student body and to threatening social media posts.

The court said in part:

It seems to me that this is a case ... where the Claimant at the very least impliedly accepted, when she enrolled at the School, that she would be subject to restrictions on her ability to manifest her religion. She knew that the School is secular and her own evidence is that her mother wished her to go there because it was known to be strict....

... [W]hilst accepting that her belief is that she should perform Duhr during the relevant 25 minutes of the lunch break in the winter months, and that this belief falls within Article 9 [of the European Convention on Human Rights], the evidence indicates that the effect of the PRP is that Qada is available to mitigate the failure to pray within the allotted window....

... [B]alancing the adverse effects of the PRP on the rights of Muslim pupils at the School with the aims of the PRP and the extent to which it is likely to achieve those aims, I have concluded that the latter outweighs the former and that the PRP is proportionate....

The court also rejected the claim that the prayer policy violated Britain's Equality Act. The court also issued a press release summarizing the decision. The Guardian reports on the decision. [Thanks to Scott Mange for the lead.]

British Employment Tribunal Holds That Anti-Zionist Views Are a Protected Philosophical Belief

In Miller v. University of Bristol, (Bristol Empl. Trib., Feb. 5, 2024), a British Employment Tribunal held that anti-Zionist views held by a Professor of Political Sociology at the University of Bristol qualify as a philosophical belief that is protected under Equality Act 2010, Sec. 4 and 10. In a 108-page, 495 paragraph opinion, the Tribunal describes the professor's claims:

He contends that since at least March 2019 he was subject to an organised campaign by groups and individuals opposed to his anti-Zionist views, which was aimed at securing his dismissal. Further, he alleges that the respondent failed to investigate or support him in respect of this campaign and instead subjected him to discriminatory and unfair misconduct proceedings which culminated eventually in his summary dismissal.

In reaching its conclusion that the professor's beliefs were protected, the court applied the criteria from an Employment Appeals Tribunal decision, Grainger Plc v. Nicholson, one of which is that the belief "must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others."

The professor contended "that his anti-Zionism is not opposition to or antipathy towards Jews or Judaism," and apparently the University conceded that none of his actions or statements were antisemitic.

The court, in finding that the professor's beliefs are protected, said in part:

... [W]hile those in opposition to the claimant's views could logically and cogently argue that antisemitism is why Zionism exists in the first place, it is not for the tribunal to inquire into the validity of either belief.... 

The tribunal is aware that there are very strong opposing beliefs and opinions to those held and expressed by the claimant. However, ... the paramount guiding principle in assessing any belief is that it is not for the court or tribunal to inquire into its validity.

In a press release commenting on the court's decision, the University said in part:

 After a full investigation and careful deliberation, the University concluded that Dr Miller did not meet the standards of behaviour we expect from our staff in relation to comments he made in February 2021 about students and student societies linked to the University. As a result and considering our responsibilities to our students and the wider University community, his employment was terminated. 

Law & Religion UK has a lengthier discussion of the decision.

Scottish Court Awards Damages for Franklin Graham's Cancelled Event

 In Billy Graham Evangelistic Association v. Scottish Event Campus Limited, (Glascow Sheriff's Ct., Oct. 24, 2022), a trial court in Scotland concluded that a large arena in Scotland whose majority owner is the city of Glascow violated the Equality Act when it cancelled an appearance by evangelist Franklin Graham because of concern that he might make homophobic and Islamophobic comments during his appearance. The court awarded Graham's organization damages equivalent to $112,000(US). The court said in part:

The event was cancelled because of (a) the religious or philosophical beliefs of the pursuer and Franklin Graham as viewed by the defender and (b) the reaction by others to the religious or philosophical beliefs professed by the pursuer and/or Franklin Graham. Those objectors had included the defender’s principal shareholder, its sponsor, objectors on social media, some press, an MSP and persons representing contrasting religious views.

(See prior related posting.) Charlotte Observer and BBC News report on the decision.

British Tribunal Rejects Complaint Of Muslim Employee Over Use Of "Allahu Akbar" In Security Test

In Ali v Heathrow Express Operating Company Ltd., (EAT, April 7, 2022), the United Kingdom Employment Appeal Tribunal upheld an Employment Tribunal's dismissal of an Equality Act religious harassment complaint brought by a Muslim employee of the Heathrow Express train service. At issue was the conduct of a Heathrow Airport employee who duties involved carrying out security checks. According to the Tribunal:

[T]his involved creating and leaving suspicious objects to test how security officers responded to them.  In August 2017 it carried out a test using a bag containing a box, some electric cabling and, visible at the top, a piece of paper with the words “Allahu Akbar” written in Arabic. 

The Tribunal below held:

We conclude that in the circumstances that existed at the time it was not reasonable for the claimant to take offence at this incident. He should have understood that in adding this phrase Mr Rutherford’s team were not seeking to associate Islam with terrorism - instead they were seeking to produce a suspicious item based on possible threats to the airport.

In affirming the Employment Tribunal, the appellate court said in part:

It is not said, on appeal, that the tribunal should have concluded that these words had been chosen gratuitously with the deliberate purpose of causing upset....

We understand that a strand of the claimant’s case was that the use of this phrase was particularly insensitive, and offensive to him, not merely because it referenced Islam, but because of the sacred nature and significance of this particular phrase in religious observance.  While we do not accept that it was perverse not to regard the conduct of the second respondent as amounting in itself to the stereotyping of Muslims generally as terrorists or terrorist sympathisers, we do understand that he also says that, because such stereotyping is a significant and serious blight on the lives of Muslims, the use of these words in this context was particularly charged for him, more than, say, the use of an animal-rights slogan co-opted by some terrorists would be for a vegan.  However, we cannot say that these features point to the conclusion that the tribunal could only properly have found that the claimant’s perception that the conduct had the effects on him of the kind referred to in section 26(1)(b) was a reasonable one.

Law & Religion UK reports on the decision.

British Employment Tribunal Says Equality Act Does Not Cover Discrimination Because Of Fear Of COVID

Among other things, Britain's Equality Act, §10, prohibits discrimination on the basis of "belief".  In X v. Y, (Empl. Trib., Dec. 13, 2021), an Employment Tribunal in England's city of Manchester held that an employee's fear of catching COVID-19 and her need to protect herself and others does not qualify as a "belief" for purposes of the Act.  The Tribunal said in part:

I do not find that the claimant’s fear amounts to a belief. Rather, it is a reaction to a threat of physical harm and the need to take steps to avoid or reduce that threat. Most (if not all) people, instinctively react to perceived or real threats of physical harm in one way or another.... However, a fear of physical harm and views about how best to reduce or avoid a risk of physical harm is not a belief for the purposes of section 10.

Law & Religion UK reports on the decision.

British Court Says Removal of Franklin Graham Bus Ads Violated Religion and Speech Rights

In Lancaster Festival of Hope With Franklin Graham v. Blackpool Borough Council, (Manchester Cty. Ct., April 1, 2021), a British trial court held that the Equality Act 2010 and the European Convention on Human Rights were violated when banner ads for the Lancaster Festival of Hope were removed from public buses. According to the court:

Upon the Defendants receiving complaints from members of the public about the advertisements, the advertisements were removed from the buses. The complaints related to Franklin Graham and his association with the Festival, and predominantly referred to his views on homosexuality and same-sex marriage as being offensive.

In finding a violation of the Equality Act, the court said in part:

The complaints arose from the objections of members of the public to the religious beliefs. The removal came about because of those complaints. I find it also came about because the Defendants allied themselves on the issue of the religious beliefs with the complainants, and against the Claimant and others holding them. If there were any doubt about that it is made explicit by the content of the press statement issued on behalf of the Second Defendant when the advertisements were removed....

Finding a violation of the European Convention, and thus of the Human Rights Act 1998, the court said in part:

Yes, the Claimant was still able to advertise its event and yes, it was still a success. But “it turned out all right in the end” cannot be an answer to the question of whether the interference with a fundamental right to freedom of expression can be justified. The Defendants had a wholesale disregard for the right to freedom of expression possessed by the Claimant. It gave a preference to the rights and opinions of one part of the community without having any regard for the rights of the Claimant or those who shared its religious beliefs. It made no effort to consider whether any less intrusive interference than removing the advertisements altogether would meet its legitimate aim.

Christianity Daily reports on the decision.

British Employment Tribunal Rules Against Doctor Who Objects To Policy On Pronouns For Transgender Patients

In Mackereth v. Department for Work and Pensions, (Empl. Trib., Oc. 2, 2019), a British Employment Tribunal held that while a doctor's Christian religious beliefs are protected under the Equality Act, his refusal to refer to transgender patients who he was hired to assess by their preferred pronouns and titles constitutes unlawful discrimination and harassment under the Equality Act. The Tribunal said in part:

We accept that the belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism ... are genuinely held and ... relate to a weighty and substantial aspect of human life and behaviour and attain a certain level of cogency, seriousness, cohesion and importance....

Irrespective of our determinations above, ... belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism in our judgment are incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals....

... [T]he right to manifest a religion or belief is subject to art. 9(2) [of the European Convention on Human Rights] which includes “the protection of the rights and freedoms of others.”....

Law & Religion UK has more on the decision.

Britain's Court of Appeal Invalidates Sex-Segregated Classes In Co-Ed Faith Schools

In HM Chief Inspector of Education v. Interim Executive Board of Al-Hijrah School, (EWCA, Oct. 13, 2017), the England and Wales Court of Appeal held that a Muslim school which admits both boys and girls, but for religious reasons separates them into sex-segregated classes, violates the Equality Act 2010.  The opinion of Etherton, MR (joined by Beatson, LJ) concluded that the separation operates to discriminate against both boys and girls, saying in part:

An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.

They also point out:

It is common ground that the School is not the only Islamic school which operates such a policy and that a number of Jewish schools with a particular Orthodox ethos and some Christian faith schools have similar practices. 

In a separate opinion, Lady Justice Gloster argued that on the facts of this case, it should be found that the school's practice also has a more detrimental effect on girls than on boys.  She said in part:

One does not need to be an educationalist, a sociologist or a psychiatrist to conclude that a mixed sex school: (i.) which, whether intentionally or otherwise, tolerates an environment where extreme and intolerant contemporary views about the role and physical subservience of women, and the entitlement of men physically to dominate and chastise them, are on display, or available to read, in the school library; (ii.) whose teachers approve the expression by the pupils of gender stereotyped views about the roles of women as homemakers and child minders and the role of men as the breadwinners; (iii.) where girls are always required to wait for an hour during the school day so that the boys can take a break first; and (iv.) where no, or no sufficient, consideration is given to promoting equal  opportunity, is a school where a strict sex segregation policy subjects girls to a greater risk of extreme and intolerant views and is likely to reinforce or create misogynist attitudes amongst the boy pupils towards them.

She also points out that the Equality Act contains an exception for single-sex schools, i.e. schools that only admit students of one sex.

The Court also issued a press summary of its decision.  Schools Week reports on the decision.

Britain's Equality Commission Publishes New Study On Religion In the Workplace

On Friday, Britain's Equality and Human Rights Commission announced the publication of a lengthy new study titled Religion or Belief: Is the Law Working?. The report focuses on four questions: Is the legal approach to defining a religion or a belief effective? Are the Equality Act exceptions allowing religion or belief requirements to influence employment decisions sufficient and appropriate? Does the law sufficiently protect employees wishing to manifest a religion or
belief at work? Does the law sufficiently protect service users and service providers in relation to religion or belief? The Commission also published an updated Guide for employers to religion and belief in the workplace.  Law & Religion UK has more on the Commission's conclusions.

British Employment Tribunal: Church of England Can Refuse To License Clergy Who Have Entered Same-Sex Marriage

In Pemberton v. Inwood, (Empl. Trib., Oct. 28, 2015), a British Employment Tribunal held that the Church of England had not violated the Equality Act when it refused to grant Rev. Jeremy Pemberton an Extra Parochial Ministry License that would qualify him to be appointed as a chaplain at the Sherwood Forest Hospitals.  The license was denied because Pemberton had entered into a same-sex marriage in contravention of Church of England doctrine. The Guardian last week reported on the decision. [Thanks to Law & Religion UK for the lead.] [Corrected-- an earlier version of this post had the parties reversed.]

Britain's Equality Commission Seeks Public Inupt On Religion and Belief Issues

Britain's Equality and Human Rights Commission yesterday called for input from the public as part of its three-year project to strengthen the understaning of religion and belief in public life. Yesterday's EHRC Release reads in part:

The Equality and Human Rights Commission has today launched a major call for evidence from individuals and organisations about how their religion or belief, or that of other people, may have affected their experiences in the workplace and in using the services and facilities they need in everyday life. People can give their feedback at www.equalityhumanrights.com/religion.

The Commission wants to gather as much information as possible from members of the public, employers, providers of services, legal advisors and religion or belief organisations.  This will be used to assess how employers and service providers are taking religion or belief into account and the impact this has on individuals.  The work covers all faiths and beliefs and experiences in England, Scotland and Wales. We want to hear about the issues people face and how they find solutions.  The Commission will also use the evidence as part of its work looking at how effective the current legislation is proving in practice.

Belfast Bakery Faces Suit Over Refusal To Decorate Cake In Support of Gay Marriage

Mail Online reported yesterday on the latest clash in Britain between Christian business owners and gay rights proponents. Activist Gareth Lee ordered a cake from Christian-run Ashers Baking Company in Belfast.  He wanted the cake decorated with the name of his organization, QueerSpace, two Sesame Street characters and the words "Support Gay Marriage."  A bakery staff member accepted the order, but the owners and manager of the family-run company called Lee, offering a refund and refusing to produce the cake on religious grounds. Lee complained to Northern Ireland's Equality Commission which wrote the bakery saying that the refusal violates the public accommodation non-discrimination provisions (Regulation Five) of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.  The Commission said it would file suit within 7 days of the letter.

Britain's Court of Appeal Says Religious Discrimination Can Involve Failure To Accommodate Belief Held By Only Some Christians

In Mba v. Mayor and Burgesses of the London Borough of Merton, (EWCA, Dec. 5, 2013), Britain's Court of Appeal held that under the Employment Equality (Religion or Belief) Regulations 2003, indirect religious discrimination (i.e. discrimination based on disparate impact of a work rule) can be shown even when the religious belief impacted is held only by some of the members of a religious group.  However it concluded that the Employment Tribunal below, while proceeding in part on an erroneous view of the law, still reached the correct result in rejecting the employee's discrimination claim.

At issue was a claim by a Christian care assistant at a municipally operated children's home that the Borough had failed to adequately accommodate her religious belief that she should not work on Sundays. Under the Equality Regulations, a defense to the indirect discrimination claim is a showing that the work rule was "a proportionate means of achieving a legitimate aim." The Court held that the Employment Tribunal below, in assessing proportionality, had incorrectly considered it relevant that abstaining from work on Sunday is not a core component of the more general Christian faith.  The 3 judges disagreed on the extent to which provisions of the European Convention on Human Rights should impact their interpretation of British regulation at issue. They all agreed that other factors made the refusal to accommodate a proportionate response. UK Human Rights Blog and Christian Concern both report on the case. [Thanks to Alliance Alert for the lead.]

Britain's Supreme Court Says Christian Hotel Owners May Not Refuse To Rent To Gay Couple

In Bull v. Hall, (UK Sup. Ct., Nov. 27, 2013), Britain's Supreme Court held 5-0 that the Equality Act (Sexual Orientation) Regulations 2007 prohibit a Christian couple who operate a hotel from refusing on religious grounds to rent a room with one double bed to a same-sex couple (who were in a civil partnership arrangement). The hotel owners rented double bed rooms only to married couples.  Britain's  Equality Act 2010 distinguishes between "direct" and "indirect" discrimination.  Indirect discrimination-- which is similar to the disparate impact concept in U.S. law-- is allowed if it can be justified as "a  proportionate means of achieving a legitimate aim."  Direct discrimination may not be justified.  All 5 of the Supreme Court's justices concluded that the refusal to rent to the couple amounted to unjustifiable indirect discrimination on the basis of sexual orientation. Three of the justices also concluded that the refusal amounted to direct sexual-orientation discrimination.

Lady Hale's lead opinion disposed of the hotel owners' religious liberty claims rather briefly, saying:

There is no question of ... replacing “legal oppression of one community (homosexual couples) with legal oppression of another (those sharing the defendants’ beliefs)” .... If Mr Preddy and Mr Hall ran a hotel which denied a double room to Mr and Mrs Bull, whether on the ground of their Christian beliefs or on the ground of their sexual orientation, they would find themselves in the same situation that Mr and Mrs Bull find themselves today. 

The court's decision in the closely-watched case affirms the conclusion of the Court of Appeals. (See prior related posting.)  The Daily Mail reports on the decision. [Thanks to Marc Stern via Religionlaw for the lead.]