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The UK Supreme Court recently ruled, in For Women Scotland, that “sex” and “woman” in the UK’s Equality Act refer to biological sex and biological women. The ruling makes clear that males do not have a legal right to enter woman-only shelters, dormitories, rape crisis centres, washrooms, or prisons in the UK.

It may surprise Canadians that both the Labour government and the opposition Conservatives support the Court’s ruling.

As the Minister for Women and Equality, Bridget Phillipson, said, “This ruling brings welcome clarity and confidence for women and service providers. Single sex spaces must be protected.” Conservative leader Kemi Badenoch commented: “Saying ‘trans women are women’ was never true in fact and isn’t true in law either.”

Meanwhile, in Canada, the legal presumption is that males who identify as women have a legal right to be treated as women by government and private actors alike. Consequently, women’s services and facilities risk liability under human rights laws if they exclude males.

Canada’s lack of clear protections for single-sex spaces and services needs fixing. But due to differences in the Canadian legal landscape, it will likely take legislative reform and not just successful litigation to achieve a similar outcome here. Here’s why.

The UK Equality Act

The UK’s Equality Act (2010), like the Canadian Human Rights Act and provincial human rights statutes, protects people against discrimination (based on sex, race, religion, etc.) in housing, employment, goods, services, and facilities.

The UK’s Equality Act also guards against discrimination based on “gender reassignment.” The Act says “a person has the protected characteristic of gender reassignment” if they intend to or have “chang[ed] physiological or other [i.e. social] attributes of sex”.

Contrast this with the undefined term “gender identity” in Canadian human rights laws, which implies a personal characteristic everyone possesses, supposedly separate from sex, but which effectively overrides sex in determining who counts in law as a man or a woman.

Also, unlike Canadian human rights laws, which lack sex/gender-specific terms, the UK’s Equality Act uses “man” and “woman” throughout. The Act also defines “woman” as “a female of any age,” which seems clear enough.

Nevertheless, the big issue in For Women Scotland was: What is a woman under the Act?

The For Women Scotland case

Here’s how the case started. The Scottish government contended that, to meet its obligation to appoint a certain number of women to public bodies, it could include males who had obtained a Gender Recognition Certificate (GRC). This depended on a non-biological interpretation of “sex” and “woman” in the Equality Act. For Women Scotland, a women’s rights group, challenged this interpretation.

It’s a different statute, the UK’s Gender Recognition Act, that allows a person to get a GRC, which changes their gender “for all [legal] purposes” – unless another statute says otherwise. While the Equality Act does not explicitly address GRCs, the UK Supreme Court concluded that it’s plain from both the content and historical context of the Act that when it uses “woman” and “sex”, it refers to biological women and biological sex.

For example, the Act specifies that sexual equality protects a “woman” against discrimination because “she is breastfeeding or pregnant.” “These provisions recognize that biological men cannot become pregnant,” the Court concluded.

The Court also pointed to the Act’s treatment of sex-specific spaces, medical services, sports, and accommodation as requiring a biological interpretation of “sex” to function coherently, as well as sex-specific requirements related to the armed forces.

The Court also noted that a key predecessor statute, the Sex Discrimination Act, was amended in 1999 to add protection for gender reassignment – without redefining “sex”, “man”, or “woman”. Indeed, legal protections for gender-reassigned persons were not achieved by redefining sex, but by adding “gender reassignment” to the law.

Oh, Canada  

Canada’s legal history on this issue is comparable. Since the 1960s, Canada has had laws against sex discrimination in employment, housing, and services – laws that allowed for sex-specific spaces or services, such as women’s shelters. 

Beginning in the 1990s, human rights tribunals, followed by the courts, began to protect transgender persons from discrimination by relying on the protected characteristics of both disability and sex.

Gender identity disorder (now called gender dysphoria) is a diagnosable condition and was counted as a disability in human rights law. So, relying on the protected characteristic of disability would arguably suffice to protect people with gender dysphoria from discrimination. For example, it would prevent a person with gender identity disorder from being denied housing or fired from their job (unless gender identity disorder makes them incapable of performing the job). And relying on “disability”, as our courts did until recently, would prevent such discrimination without undermining legal protections for legitimate single-sex spaces and services.

But relying on “sex”to protect anyone who identifies as transgender from discrimination brought confusion. The courts were trying to use a single word – “sex” – stand for two distinct ideas – identity based on biology and identity based on self-perception. These two competing ideas of what “sex” meant created confusion, and Canadian law developed to require that a man who identifies as a woman generally be treated as a woman – as belonging to the female “sex” for human rights law purposes, even before “gender identity” was added to human rights statutes.

Legislatures in Canada add “gender identity” to laws

If “sex” was already being interpreted this way by the early 2000s, why did Canadian legislatures bother to amend human rights statutes to add “gender identity” (mostly between 2012 and 2017)? It was not to resolve ambiguity around the term “sex” created by tribunals’ and courts’ broad interpretations of the term.

Instead, the impetus was to endorse and preserve judicial interpretations that prioritize gender self-identification over biological sex. Also, explicitly endorsing the concepts of gender identity and gender expression in law empowered public bodies (e.g., school boards) to support gender ideology in their policies. But it was clumsily done. Neither “sex,” “gender identity,” nor “gender expression” was defined.

Arguably, adding “gender identity” to human rights laws across the country should mean that “sex”, which remains a protected characteristic, should now be interpreted according to its ordinary meaning. After all, the new terms “gender identity and gender expression” now do the work that judges were trying to do by stretching the meaning of “sex”. But that has not been the result. Nor does it appear to have been the intent of legislatures when they added these new terms.

Legislative reform needed

Canada’s Supreme Court could conceivably rule one day that the only sensible interpretation of “sex” is a biological interpretation. As in UK law, Canadian law has plenty of clues that the term “sex” was understood by legislators to mean biological sex when these laws were enacted. For example, the Canadian Human Rights Act says that discrimination in relation to childbirth or pregnancy is discrimination based on sex. 

However, it seems unlikely that any Canadian court will issue such a ruling. Canada now has a significant body of case law, spanning decades, interpreting “sex” far more loosely (not that these cases bind the Supreme Court). Also, the last time legislatures addressed the issue, it was to bolster the gender self-identification approach by adding “gender identity” to the law, while concerns that already existed about the legal status of sex-specific facilities and services were ignored.

Finally, while UK law long used the terms “man” and “woman” in anti-discrimination law, in connection with mentions of sex, pregnancy, etc., Canadian human rights statutes have not. This makes it easier to drive a wedge between sex and gender, insisting that women’s rights have nothing to do with biology, and everything to do with social constructs.

So, while some might hope that litigation will resolve these issues, legislative reform is needed here first. Will Canadian politicians have the courage?

A Conservative opportunity?

Canada’s Conservatives promised to reverse the Liberal government’s policy that permits males identifying as women to serve time in women’s prisons, regardless of whether they’ve undergone medical transition treatments or surgery, unless there are “overriding health or safety concerns that cannot be resolved.”

The Liberal government implemented this shortly after Parliament passed Bill C-16, which added “gender identity” to the Canadian Human Rights Act and Criminal Code. Correctional Service Canada claims the policy is in line with the Act.

Stories of women being victimized by males in shelters and prisons are compelling. Safety concerns may not be considered “overriding” before female inmates are victimized. Gender affirmation is currently the priority. But even where a male inmate in a women’s prison does not overtly harass, threaten, or assault anyone, being incarcerated with male inmates can cause distress for female inmates, many of whom have been victims of male violence.

A reversal of the Liberal policy would face immediate human rights challenges. To preclude that and avoid any ambiguity about their policy’s legality, they should go further. They should table a bill to amend the Canadian Human Rights Act. While only the government can change the Correctional Service’s internal policy, any MP can table a bill to protect single-sex spaces, forcing debate on the issue in Parliament. Thus, though the Tories lost the election, they need not neglect this campaign promise.

Also, since provincial governments have jurisdiction over so much that impacts women, including provincial prisons, shelters, health care, etc., provincial conservative parties should commit to similar reforms in provincial human rights laws – clarifying that sex means sex (not gender identity), and that single-sex spaces and services are protected, like in the UK.