Scottish Government wins legal case on definition of woman

The Scottish Government acted lawfully when it conflated sex and gender in revised guidance on the make up of public boards, the Court of Session has ruled.

In the guidance, which was issued earlier this year, the government noted that a 2018 law passed to encourage greater gender balance on public-sector boards offers “no definition” of what a woman is and therefore the meaning must be determined with reference to both the 2010 Equality Act and the 2004 Gender Recognition Act.  

The latter, the guidance notes, states that “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”.

Feminist organisation For Women Scotland challenged the Scottish Government’s position, arguing it is at odds with an earlier ruling which found that including transgender women in the definition of woman for the purposes of the Gender Representation on Public Boards Act would effectively alter the terms of the Equality Act. The Scottish Government cannot do that because the Equality Act is a reserved piece of legislation.

However, Lady Haldane today issued an opinion noting that the Scottish Government’s guidance, which was revised as a direct result of the earlier case and relates only to the law on public boards, is lawful.

“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 [gender recognition certificate] obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex,” she wrote.

“Such a conclusion does not offend against, or give rise to any conflict with, legislation where it is clear that sex means biological sex.”

Lady Haldane noted that the issue of transgender rights is “an often contentious social policy debate”, but that the court was not being asked to resolve that debate. The matter she was being asked to consider, she stressed, “is in the end of the day one of legal interpretation”.

She addressed the earlier case, which was also brought by For Women Scotland – which ultimately won on appeal – and said she accepted the Scottish Government’s position that it dealt with a different issue to the current matter.

“I do not accept that, read fairly and as a whole, the decision in [the first case] is authority for the proposition that the appeal court has authoritatively determined that sex for the purposes of the 2010 Act, means only biological sex, and therefore that any further or alternative consideration of that issue is foreclosed,” she wrote.

In a statement For Women Scotland said it was “hugely disappointed” in the court’s ruling and was considering whether action could be taken.

“At first reading this seems disastrous for women who are seemingly now no longer recognised in law as a sex class, with distinct requirements of our own,” it said.

“We are obviously still analysing the decision and will consider if any further legal action is appropriate in due course.

“There are clear ramifications for the Gender Recognition Reform Bill currently before parliament and we hope some time will be allowed for MSPs to digest the ruling and its consequences.

“It is now beyond doubt that the bill is not a ‘simple administration change’ but does have a wider impact on society.”

Vic Valentine, manager of transgender rights organisation Scottish Trans, welcomed the ruling saying that it “upholds trans people’s existing rights”.

“A trans person who receives a GRC might be discriminated against because of their recognised sex, and they would be protected from that discrimination by the Equality Act,” Valentine 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.”