This blog looks at the Court of Session ruling on Judicial Review of the revised statutory guidance produced by the Scottish Ministers under section 7 of the Gender Representation on Public Boards (Scotland) Act 2018.
What was the case about?
For Women Scotland previously challenged the Scottish Government on its inclusion of trans women in the definition of women under the Gender Representation on Public Boards (Scotland) Act 2018.
The aim of the 2018 Act is to improve the representation of women in non-executive positions on public boards. It introduced the ‘gender representation objective’ – a target that women should make up 50% of non-executive board membership.
Section 2 defined ‘woman’ for the purposes of the Act as:
“woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.
The original ruling (Opinion of Lady Wise, 23 March 2021) said that the Scottish Government had acted lawfully by including trans women as women, as defined in Section 2 of the 2018 Act.
However, on appeal, the ruling (Opinion of Lady Dorrian, 18 February 2022) said that the 2018 Act impinges on the nature of the protected characteristics in the Equality Act 2010 which is a reserved matter. In short, the Scottish Government could have lawfully added the protected characteristic of gender reassignment, which would have included trans men and trans women. But it created a new protected characteristic of trans women, and the Scottish Parliament cannot modify protected characteristics in the Equality Act.
“Changing the definitions of protected characteristic, even for the purpose of achieving the GRO [gender representation objective], is not permitted and in this respect the 2018 Act is outwith legislative competence.”
In response, the Scottish Government updated the guidance to support the 2018 Act to include trans people with a GRC:
The meaning of “woman” for the purposes of the Act
2.12 There is no definition of “woman” set out in the Act with effect from 19 April 2022 following decisions of the Court of 18 February and 22 March 2022. Therefore “woman” in the Act has the meaning under section 11 and section 212(1) of the Equality Act 2010. In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.
For Women Scotland challenged the Scottish Government on its revised guidance. The main argument was that the revised guidance seeks to introduce a ‘new’ category, that of ‘legal sex’, which is not a protected characteristic, and thus intrudes on a reserved matter as did the previous guidance.
What did the Court say?
The Opinion of Lady Haldane, 13 December 2022 said that this petition is concerned with whether or not, as a matter of law, the definition of “woman” in the Equality Act 2010 includes those holding a GRC stating that their acquired gender, and thus their sex, is female. Further, that “the contention is that the only way the 2010 Act (and indeed any other related legislation) can be made to work is if the definition of woman in that Act is taken to mean biological woman.”
Lady Haldane said:
“I conclude that in this context, which is the meaning of sex for the purposes of the 2010 Act, “sex” is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex. Such a conclusion does not offend against, or give rise to any conflict with, legislation where it is clear that “sex” means biological sex. Mr O’Neill referred to the example of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021 where references to the sex of the forensic medical examiner can only mean, read fairly, that a victim should have access to an examiner of the same biological sex as themselves. I agree. There are no doubt many other such examples. That does not give rise to the inevitable conclusion, as was urged upon me, that “sex” in the present context must mean the same thing as it does in others. A rigid approach in this context is neither mandated by the language of either statute nor consistent with their respective aims and purposes.”
As such, the Scottish Government’s guidance on the 2018 Act was ruled to be lawful.
For Women Scotland have said they would be looking at grounds for appeal.
What does the ruling mean for legal gender recognition?
The Equality and Human Rights Commission (EHRC), which made a submission to the Court in this case, provides its position on the definition of ‘sex’ and what this means for people with a gender recognition certificate (GRC).
It means that:
- Trans people, whether or not they have a GRC, have protection under the Equality Act because of gender reassignment.
- A trans man with a GRC would be treated as a man in terms of sex discrimination provisions, a trans man without a GRC would be treated as a woman.
- A trans woman with a GRC would be treated as a woman in terms of sex discrimination provisions, a trans woman without a GRC would be treated as a man.
On the exceptions in the Equality Act it states:
“The sex discrimination exceptions in the Equality Act therefore apply differently to trans people with and without Gender Recognition Certificates.
Exceptions in the Act set out circumstances in which it is permissible to treat someone less favourably because of their sex or gender reassignment, for reasons of public policy or to protect the rights of others. The sex exceptions operate on the basis of legal sex. The gender reassignment exceptions are not determined by whether or not an individual has a Gender Recognition Certificate (the one exception to this relates to the solemnisation of marriage through religious ceremony – Equality Act 2010, Schedule 3, paragraph 24). The use of such exceptions generally needs to be justified as being a proportionate way to achieve a legitimate objective.
Because the operation of the Equality Act gender reassignment exceptions does not rely on possession, or not, of a Gender Recognition Certificate, any reform of the Gender Recognition Act will not erode the special status of services provided separately for men and women, or for men or women only, as defined by the Equality Act 2010, such as domestic abuse refuges, health services and clubs. We have issued clear, practical guidance for providers of separate and single-sex services to help them fully understand how to meet the needs of all women and men.
Welcoming the Court ruling, the Scottish Trans Alliance said:
“It is important to add that this ruling does not affect the exceptions in the Equality Act which mean that single-sex services can exclude trans people or treat them less favourably where it is a proportionate means to a legitimate aim, although services are not required to do so. They can do that whether or not the trans person has a GRC. In short, the ruling confirms the status quo and the rights of women and trans people under it.”
The focus on legal gender recognition and its interaction with the Equality Act is often on the sex ‘exceptions’ which allow for separate or single sex services. Service providers can provide a different service or exclude a trans person from the service who falls under the gender reassignment definition.
However, the EHRC has raised concerns about the implications of simplifying the process of legal gender recognition in Scotland on other areas of the Equality Act:
“…the operation of other provisions relating to sex discrimination across Great Britain, including equal pay between women and men, gender pay gap reporting, and measures to address disadvantages experienced by women”
In response, the Scottish Government said it would be helpful to have more detail given the small numbers involved:
“For example, on the gender pay gap issue which you raise, even with an increase in numbers obtaining a GRC, this is still a very small proportion of the population. Scotland has a population of around 5.5 million people and therefore an increase to between 250-300 GRCs issued per year is not a statistically significant impact on general population figures. This has been set out in some detail to the Committee”
The EHRC also referenced the lack of case law to provide guidance on these matters:
“Enabling employers and service providers to navigate these issues will require detailed guidance, and would need to draw on case law that does not yet exist, to clarify how any dual legal processes should operate in practice.”
In response, the Scottish Government asked the EHRC whether a lack of case law implies a barrier to reform of gender recognition and sought further clarity on this point.
The Court ruling confirms that a person who obtains a GRC in their acquired gender, changes their legal sex, for all purposes (subject to some exceptions):
Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman). section 9(1) of the GRA