Summary

We have previously taken two separate judicial reviews on the definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 and the accompanying Statutory Guidance, winning the first and losing the second. This legislation relies on definitions set out in the Equality Act 2010 and the judicial reviews have served to show that a definition of "sex" that is inclusive of a person's "acquired gender" on a Gender Recognition Certificate leaves the Equality Act opaque and unworkable for many women. There needs to be clarity that sex is a biological term and while the UK Government recognises this, it is yet to take any remedial action in response to the second judicial review ruling. We have strong grounds to appeal the decision by the Court of Session and have been granted permission for the case to be heard by the UK Supreme Court.

The Inner House of the Court of Session Judgment

We believe the Equality Act was drafted on the basis of the ordinary, common law understanding of the biological differences between the two sexes. The protected characteristic of “sex” in the Equality Act is defined as a reference to a man or a woman, where man means “a male of any age” and woman means “a female of any age”. We think it is quite clear that these are distinct and separate groups and that “woman” is not a mixed-sex category.

However, in our recent judicial review, For Women Scotland v The Scottish Ministers [2023] CSIH 37, the Inner House took the opposite view and decided there is a relationship between the Gender Recognition Act 2004 (GRA) and Equality Act 2010 and held that the meaning of sex in the Equality Act incorporated the GRA framework. 

The court decision stated that a person with a Gender Recognition Certificate (GRC) in their acquired gender has the protected characteristic of gender reassignment. Separately, they also possess the protected characteristic of sex according to the terms of their GRC and have a presumptive right to access the single-sex services of their acquired gender.

On the other hand, individuals without a GRC, whether they have the protected characteristic of gender reassignment or not, retain the sex in which they were born and have no right to access services provided for members of the opposite sex.

The court concluded that a [biologically male] person with a GRC in the female gender comes within the definition of “woman” for the purposes of the Equality Act, and therefore the revised Statutory Guidance issued in respect of the Gender Representation on Public Boards (Scotland) Act 2018 is lawful.

The Statutory Guidance gives the following definition:

Issues with the Inner House Judgment

We think the court came to the wrong conclusion, not least because it should have been bound by our first judicial review decision which stated “Provisions in favour of women, in this context, by definition exclude those who are biologically male”. It also said that incorporating transsexuals living as women into the definition of woman impinges on the nature of protected characteristics, which is a reserved matter and outwith the competence of the Scottish Government. The term “transsexuals living as women” encompasses those with a GRC, not just those without. 

The court's new GRC inclusive definition of “woman” cannot be used consistently throughout the Equality Act and it was forced to revert to a biological understanding of “pregnant women” to ensure females with a GRC (stating they are men) are still able to access pregnancy and maternity rights. Parliament cannot be said to be both fully aware of the terms of the GRA when incorporating it into the Equality Act yet unaware that it allows a person to obtain a GRC with their fertility intact.

By overlooking the plain meaning of the biological terms of “sex” and “woman” in the Equality Act to give precedence to the terms of an earlier statute the court reverses the constitutional principles of interpretation. The later Act should always take precedence in the event of a dispute or conflict in their terms.

Under the court’s GRC inclusive definition of sex, single-sex services cannot be said to be successfully delivering a service for a particular sex if the gender reassignment exception in Schedule 3 of the Equality Act is used to exclude trans people who hold a GRC in the relevant acquired gender. Nor can they be said to be single-sex on a biological basis as those of the particular (biological) sex but with a GRC will be excluded by the sex exception clause. This leaves service providers confused and, regardless of decisions taken on provision, at risk of legal action for unlawful discrimination.

The judges admitted confusion over the concept of a heterosexual male with a GRC declaring himself a lesbian and the profound consequences for lesbians who now have no legal method of excluding such men from membership of their groups (single-sex exceptions do not apply to associations).

Our Decision to Appeal

We had really hoped the situation could have been resolved with the judicial review but, unfortunately, it was not to be. The protected characteristic of “woman” in the Equality Act still includes some males and although the Gender Recognition Reform Bill (which allowed anyone to obtain a GRC) has been paused for now it may yet come back in some form. A future UK Government may even lift the Section 35 order, in which case sex categories lose all meaning in law. 

We spoke in detail with our legal team at Balfour + Manson and our KC, Aidan O’Neill, and are satisfied there were strong grounds to seek permission to appeal the Inner House decision to the UK Supreme Court. 

There is more than one way to achieve the same result though and in many ways it would be preferable if the UK Government took action to clarify the definition of sex in the Equality Act as a biological term. Kemi Badenoch, the Minister for Women and Equalities, recently stated that after receiving advice from the Equality and Human Rights Commission she had “commissioned work on how this could be done and what the implications could be”. We don’t know what stage this work is at, and of course there needs to be a public consultation before putting forward any amendments to the legislation to rectify the Inner House ruling.  All this takes time and ideally cross-party consensus, and may not be achievable when a general election is on the horizon.

As we were constrained by time limits for lodging an application to appeal we did not want to give up a good opportunity to challenge the court’s decision for only a possibility of future action by the Government, so we decided to go ahead with a request to appeal to the UK Supreme Court. Permission for this appeal was granted by the Court of Session Inner House on 16th February 2024.

Grounds of Appeal

Our application seeking leave to appeal was lodged with the Inner House on 28th November 2023 and contained the following eight proposed grounds of appeal:

1. The court’s new analysis is contrary to and wholly irreconcilable with its decision in our first judicial review;

2. The court misdirected itself in law in holding that the provisions of an earlier statute took precedence over a later statute;

3. The court failed to have proper regard to the effect of its interpretation on the Equality Act 2010 as a whole;

4. The court impermissibly re-wrote the provisions of the Equality Act 2010 in order to reach its conclusion that the acquisition of the “gender recognition certificate” effects a “sex change” for the purposes of the Equality Act 2010;

5. The court misdirected itself in law as to the effect of its conclusion on the protection of separate and single sex spaces;

6. The court misunderstood the effect of its conclusion on sexual orientation discrimination;

7. The court misdirected itself in law as to the implication of its judgment on the provision of communal accommodation consistently with the requirements of the Equality Act 2010; and

8. The court’s decision undermines the criminal law and the protection of the vulnerable in “sex by deception” cases.

In a very unusual move, the Scottish Ministers accepted that these grounds give rise to an arguable point of law of general public importance regarding “the need for certainty as to the definition of the term “woman”” and ought to be heard by the UK Supreme Court.

Please Support Us

We are raising funds to pay the necessary legal fees to proceed with the case in the UK Supreme Court with an initial target for the first month of £75,000. We will update this page and stretch the target to cover ongoing costs which are likely to reach a final total of approximately £200,000.

This is a crucial case for us all. Protection for those with the protected characteristic of gender reassignment will remain unchanged in the Equality Act, regardless of whether they have a GRC, but for women to have full rights and protection it is important that “sex” is clarified as referring to biology.

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[Photo credit: Iain Masterton]