Ministers' gender recognition guidance held lawful
Revised Scottish Government guidance, by which individuals holding a full gender recognition certificate that their acquired gender is female are women for the purposes of gender representation on public boards, does not conflict with the Equality Act 2010 and is legal, a Court of Session judge has held.
Lady Haldane in the Outer House gave the ruling in dismissing a petition by For Women Scotland Ltd, which describes itself as a democratic grassroots feminist organisation, challenging guidance issued by ministers under s 7 of the Gender Representation on Public Boards (Scotland) Act 2018 on the meaning of "woman" for the purposes of the Act.
Earlier this year the petitioners successfully challenged in the Inner House, as impinging on a reserved matter, a provision in the Act defining "women" as including "transgender women" and guidance issued in line with that provision. The revised guidance states that "women" has the meaning given in the Equality Act, and "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."
The petitioners argued that the revised guidance did not conform to the court's earlier orders, and was unlawful as the definition of "woman" in the 2010 Act was to be taken as a "biological woman". To the extent that there was a conflict between them, that Act impliedly repealed the Gender Recognition Act 2004.
The petition was supported by the LGB Alliance and opposed by The Equality Network, both of which intervened in the case, the former arguing that the conflation of sex and gender was prejudicial to the interests of lesbians and gay men, and the latter that the construction of the 2010 Act contended for by the petitioners was inconsistent with the 2004 Act and would frustrate its purpose. The Equality & Human Rights Commission also intervened, arguing, as did the Scottish ministers, that the 2004 Act remained of more than symbolic effect and that the 2010 Act gave proper protection to holders of gender recognition certificates in their acquired sex and gender.
Giving her reasons for dismissing the petition, Lady Haldane first of all considered the Inner House decision, which she held did not authoritatively decide that "sex" for the purposes of the 2010 Act meant only biological sex. The court had implicitly recognised that those in possession of a gender recognition certificate were a distinct category not to be treated as synonymous with, or a subset of, the protected characteristic of gender reassignment.
The 2004 Act had "put into place a detailed mechanism that ultimately effected a change to a person’s status in the eyes of the law, specifically, their sex". It was not designed primarily, as contended for the petitioners, to address issues raised by same sex marriage being legally impermissible at the time: a person's acquired gender was to become their sex "for all purposes" (s 9).
The contention that the 2010 Act could only work if "woman" meant biological awareness of the 2004 Act and did not seek to repeal s 9, though it repealed other provisions.
It was the petitioners who erroneously conflated possession of a gender recognition certificate with the protected characteristic of gender reassignment. "I reach that conclusion having regard to the plain reading of the definition of gender reassignment which describes a much broader concept, and process than does the definition of the effect of obtaining a GRC in terms of s 9 of the 2004 Act", Lady Haldane said. "Thus whilst a person in possession of a GRC may share the protected characteristic of gender reassignment, their sex for the purposes of the 2010 Act is female, or male, according to the terms of their GRC."
Although the Inner House had referred to persons who were "biologically male", "I remain of the view that the understanding of the court as to the effect of a GRC (so far as relevant to that decision) is clear when the decision is read as a whole. Such an approach does not offend against the contention that sex and gender reassignment are separate and distinct protected characteristics. They are. But whilst they are separate and distinct characteristics, they are not necessarily mutually exclusive in the context of the 2004 and 2010 Acts, read together."
After rejecting the argument on implied repeal, Lady Haldane concluded: "For all of the foregoing reasons, 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."