The Supreme Court has clarified the definition of ‘woman’ under the Equality Act 2010, a decision that may affect how damages are calculated in personal injury claims involving transgender claimants.
In the recent case For Women Scotland Ltd v The Scottish Ministers (2025) the Supreme Court clarified the legal definition of “woman” under the Equality Act 2010, confirming this means ‘biological’ sex, i.e., sex at birth. The decision may have implications for transgender claimants in personal injury claims in relation to the appropriate Ogden Table to employ when calculating damages.
There is currently no guidance on which Ogden Table is relevant in relation to transgender claimants. In accordance with the ruling in For Women Scotland Ltd, the relevant Ogden Table is therefore that which reflects the claimant’s biological sex. However, applying this principle could impact on the damages that transgender claimants receive due to differences in the life expectancy of men and women. This is because the factors underlying life expectancy, and the associated actuarial multipliers, may not align straightforwardly with birth sex for transgender individuals.
The Supreme Court’s ruling means a transgender woman’s biological sex is male. However, she may be undergoing or have had hormone treatment and/or gender surgery and have a lifestyle that she may argue does not reflect male health risks and behaviour in general. The multipliers in Ogden Table 1 relating to men are usually lower than those for women since men typically have a lower life expectancy taking into account both biological and social factors, thus reducing the damages for future loss that a transgender woman might receive. Conversely, some factors reducing life expectancy may be relevant to transgender individuals that do not apply to the general population, but these are not captured by the actuarial tables.
However, we know the courts are generally reluctant to admit expert evidence supporting a different life expectancy from that employed by the Ogden tables solely on the basis of lifestyle factors, since, as the Ogden Table Explanatory Notes confirm, “The average in the Tables includes smokers, non-smokers, drinkers, teetotallers, people who are over-weight and people who have an ideal BMI etc”.
Following the Supreme Court’s decision a rehearing of For Women Scotland Ltd is currently being sought by the UK’s first transgender judge, Victoria McCloud. Ms McCloud, who is now a retired, is bringing a case against the UK in the European Court of Human Rights challenging the process that led to the Supreme Court’s ruling on biological sex. She is arguing that the Supreme Court breached her rights under the European Convention on Human Rights, namely Article 6 (right to a fair trial), Article 8 (right to respect for private and family life) and Article 14 (right to freedom from discrimination) when it refused to hear representation from her, or evidence from any other trans individuals or groups.
For now, however, the Supreme Court’s ruling on biological sex will continue to govern the relevant multipliers employed in personal injury claims in England and Wales.
Our Large Loss Actuarial Technical Unit will keep a close eye on developments.
