Defining Sex in Law

Abstract

This paper explores the meaning of the term "sex" in law. It distinguishes between indeterminate sex and attempts to change sex, by tracing caselaw of the United Kingdom on this topic. It then addresses the meaning of sex in European law, informed by established rights to be free from discrimination on the basis of gender reassignment, and the right to gender recognition recognised under Article 8 ECHR. From here the paper explores the meaning of sex in domestic legislation following the enactment of both the Gender Recognition Act 2004 and the Equality Act 2010. From here it addressed recent caselaw of the Scottish Court of Session on this question, arguing that the proper construction of the protected characteristic of "sex" in the Equality Act must be determined by reference to the Act as a whole, with particular regard to textual and purposive considerations as well as interpretative obligations arising under the Human Rights Act. Where an interpretation of sex is necessary to protect the human rights of women and girls, there is an obligation on all courts to adopt that approach, where possible.

Keywords: sex, gender reassignment, discrimination law, protected characteristics