Let’s talk about sex: case note on For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37

5 December 2023 by Lance Baynham

In For Women Scotland Limited v The Scottish Ministers [2023] CSIH 37 (“For Women Scotland 2”), the Inner House of the Court of Session has confirmed (for Scotland, at least) the relationship between the Gender Recognition Act 2004(“GRA”) and Equality Act 2010 (“EqA”). In summary, it was held that the meaning of sex in s.11 EqA incorporated the GRA framework. The upshot is that, for transgender people, sex under the EqA is determined by possession of a GRC. Thus, for EqA purposes, the sex of a transgender person without a GRC is their natal sex. On the other hand, the sex of a transgender person with a GRC is their “acquired” (to use the language of the GRA) gender.

This case note briefly sets out some of the relevant law, explores the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.

Relevant law

S.2 GRA sets out the conditions for obtaining a GRC. S.9(1) sets out the consequence that:

“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).”

However, by s.9(3), this is “subject to provision made by this Act or any other enactment or any subordinate legislation”.

The EqA prohibits discrimination on the basis of nine “protected characteristics”. These include “sex” and “gender reassignment”.

In relation to the protected characteristic of sex, s.11 EqA provides that “a reference to a person who has a particular protected characteristic is a reference to a man or to a woman”. S.212(1) further provides that “man” means “a male of any age” and that “woman” means “a female of any age”.

Pursuant to s.7 EqA, “[a] person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex”.

Background

The Gender Representation on Public Boards (Scotland) Act 2018 (the “Act”) introduced the objective that 50% of non-executive members of public boards should be women. The Act then gave a definition of women which included trans-women with the protected characteristic of gender reassignment under s.7 EqA.

This definition was challenged by the gender-critical feminist campaign group ‘For Women Scotland’ (“FWS”). In February 2022, the Inner House of the Court of Session handed down judgment in For Women Scotland Ltd v Lord Advocate [2022] SC 150 (“For Women Scotland 1”) and held that the definition of women provided for in the Act impinged on the nature of protected characteristics, which was a reserved matter. Following For Women Scotland 1, the Scottish Government then published revised guidance on the meaning of “woman” under the Act. The guidance provided as follows:

“…‘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.”

Dissatisfied with this revised guidance, FWS brought further judicial review proceedings. Their argument was that the Scottish Government had fallen into the same error identified in For Women Scotland 1 again, and conflated two different protected characteristics. The grant of a GRC did not, FWS contended, alter one’s sex under the EqA.

The judgment

Firstly, the Court construed the GRA and reached the following conclusions:

1. When enacting the EqA, it “must be assumed that Parliament was fully cognisant of the purpose, terms and effect of the GRA” (indeed, the EqA repealed certain provisions of the GRA and made specific reference to it) [33].
2. The GRA is not now “merely symbolic”, as FWS had argued, but “was intended to be a far-reaching enactment”[36]. This was apparent from the “strong, clear and unequivocal terms in section 9(1)”, quoted above, that a GRC effects a change in one’s gender “for all purposes” [37].
3. It was also apparent from its language that a “reference to sex within the GRA is not a reference to biological determinants” – the terms sex and gender are used interchangeably [37].
4. If the narrow interpretation of s.9(1) contended for by FWS was correct, several of the specific exceptions provided for in the GRA (e.g., regarding parenthood, succession, sport, and gender-specific offences) would have been unnecessary [41].
5. The effect of s.9(3) (read with the rest of s.9) is that s.9(1) changes an individual’s gender “for all purposes unless there is a specific exception in the GRA; or unless the terms and context of a subsequent enactment require a different interpretation to follow”. In such circumstances, it would be “expected that the inapplicability of section 9(1) would be clearly stated” or, at least, that the subsequently enactment “would be rendered meaningless or unworkable by” the general principle of s.9(1) [42].

Secondly, the Court construed the EqA and reached the following conclusions:

1. Sex, gender and associated terms can have narrow biological definitions or broader definitions. The wide terms of the GRA drove the Court away from a strict biological definition [44] and the terms of the EqA “do not, on their face, or in the context in which they occur, mandate the adoption of a biological interpretation” [47].
2. The GRA and EqA can be interpreted consistently on the basis that the sex of an individual with a GRC is understood to be that of their “acquired” gender [48] and [50].
3. It was not the case, as asserted by FWS, that sex is addressed in s.11 EqA and gender in s.7 EqA. The terms are often used interchangeably in the EqA. What is protected by s.7 is the reassignment [51-52].

Thirdly, whilst noting that it was “neither practical nor necessary” to look at the entirety of the EqA and to ask whether in some other hypothetical set of circumstances a different (biological) interpretation of sex and gender would be required, the Court considered some examples suggested by FWS in the interests of “consistency and practicability”:

1. As to the armed forces, single sex services and spaces, and communal accommodation, provision was made in the EqA to exclude trans people subject to a proportionality test [54-56] and [59]. Taking the example of single sex services and spaces, whilst the effect of paragraphs 26 and 27 of schedule 3 is that a “person with a GRC has a prima facie right to access the services of their acquired sex”, paragraph 28 “entitles the service provider, subject to a proportionality test, to exclude a transsexual person” [56].
2. As to single sex schools and institutions, it was acknowledged “that there is no exception for gender reassignment discrimination” but, nonetheless, this did not mean “that Parliament must have intended that “sex” be biologically determined” [58].
3. As to pregnancy and maternity discrimination, it was recognised that the language of ss.17 and 18 EqA refer to discriminating “against a woman… because of a pregnancy of hers”. FWS had argued that this mandated a biological definition of “woman” because, otherwise, a pregnant trans-man with a GRC would be excluded from pregnancy and maternity protection under the EqA. This argument was rejected on the basis that the “definition of “woman” is not the essential element at which the protection is aimed; rather it is the fact of pregnancy, birth or breast feeding”. In this context, “woman” was to be interpreted biologically given that “pregnancy is a matter of fact which hinges entirely on biology” [61-62].

The Court’s conclusion was set out at [65]:

“…The Guidance does not conflate two separate protected characteristics. A person with a GRC in their acquired gender possesses the protected characteristic of gender reassignment for the purposes of section 7 EA. Separately, for the purposes of section 11 they also possess the protected characteristic of sex according to the terms of their GRC…”

Comment

Firstly, the impact of For Women Scotland 2 in England and Wales. It is not binding, but persuasive. I would suggest that it would be hard to imagine, say, an employment tribunal declining to follow it. The case is, of course, binding on all inferior courts in Scotland.

Secondly, for both trans-rights campaigners and gender-critical campaigners such as FWS, the judgment is something of a mixed bag. On the one hand, the judgment confirms that, for the purpose of the EqA at least, sex is not immutable. The sex of a trans-man with a GRC is male, and the sex of a trans-woman with a GRC is female. On the other hand, having a GRC becomes the key determiner. As such, under the EqA, the sex of a trans-person without a GRC is their natal sex. Obtaining a GRC is not straightforward and requires, amongst other things, a medically evidenced diagnosis of gender dysphoria.

That does not mean that a trans-person without a GRC has no protection from discrimination, as they will likely have the protected characteristic of gender reassignment. Indeed, in Taylor v Jaguar Land Rover Ltd [2020] Case No: 1304471/2018, an employment tribunal held that the protected characteristic of gender reassignment was sufficiently broad to cover a range of non-binary and gender fluid identities. Whilst a first instance decision, this suggests that there is scope for s.7 EqA to be interpreted broadly. Nonetheless, following For Women Scotland 2, such individuals will be protected from sex discrimination in accordance with their natal sex.

Thirdly, the consequence of having a GRC following For Women Scotland 2 is a prima facie right to use the services of the sex which has been confirmed by the GRC. So, a trans-woman with a GRC has a prima facie right to use services provided for women. This, however, is subject to an exception where provision is made for those with the protected characteristic of gender reassignment to be excluded, where proportionate. This assessment will be fact-specific, and may not always be easy for service-providers, particularly if other service-users have “firm, even entrenched views” as the Court recognised to be a feature of this area of “intense public debate” [31]. Moreover, whilst this exception exists for some single-sex services and spaces, it does not for others – for example, associations and educational institutions.

Fourthly, drawing on the above, the practical effect of the judgment is that the principles and presumptions where a trans-person is excluded from a single-sex space will differ depending on whether they have a GRC. A trans-person without a GRC excluded from a single-sex service or space is being treated differently because of their sex. This may be justified in the same way that single-sex services can generally be justified. However, if a trans-person with a GRC is excluded from a service provided for those with the sex confirmed by their GRC, then they are being treated differently because of the protected characteristic of gender reassignment. This is where the Court held that there is a prima facie right of access. In practice, it may be that exclusion is presumptively justified in the former case, but unjustified in the latter.

Fifthly, the judgment will doubtless have ramifications for the debate (and legal challenge) concerning the Scottish Gender Recognition Reform Bill. The intention of the Bill was to reform the process for obtaining a GRC, for example, by removing the requirement to obtain a diagnosis of gender dysphoria. This was blocked by the UK government (via unprecedented use of s.35 of the Scotland Act 1998). Their argument is that, whilst gender recognition in Scotland is a devolved matter, the Bill would affect equal opportunities, which is a reserved matter. In short, I expect that For Women Scotland 2 will strengthen that argument. If the sex of a trans person under the EqA is determined by possession or not of a GRC, then it is difficult to see how changing the process by which one obtains a GRC (by making it easier) would not affect equal opportunities. The Outer House’s judgment in that case (from Lady Haldane, the same judge who heard For Women Scotland 2 when it was in the Outer House and who also dismissed FWS’ petition for judicial review), is eagerly awaited.

Lance Baynham is a Barrister at 1 Crown Office Row