Case:

We are appealing the judicial review decision by Lady Haldane in the Outer House Court of Session which ruled that the protected characteristic of “sex” in the Equality Act 2010 refers to a person’s sex as recognised in law, and not biological sex.

“In this context, which is the meaning of sex for the purposes of the Equality Act 2010, “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.”
FWS v Scottish Ministers [2022] CSOH90 (para 53)

Sex is defined in the Equality Act as a reference to a man or a woman (section 11) where a man means a male of any age and a woman means a female of any age (section 212), and this definition must be read consistently across the whole Act. 

Lady Haldane’s interpretation means that wherever “sex” is referred to in the Act it can be replaced with “legal sex” and the definition of “woman” means biological females, except those who hold a GRC stating they are legally men, plus biological males who hold a GRC stating they are legally women.

We think this is wrong. Sex, in its ordinary common law meaning, refers to biology and to read it otherwise in the Act leads to significant inconsistencies and incoherence which cause detriment to women. Examples of how this plays out in practice include:

1. Single-sex spaces
   The Act provides for separate or single-sex services if it is a proportionate means of achieving a legitimate aim. If sex means biological sex it is straightforward to have single-sex changing rooms, toilets, hospital wards, refuges, sports, etc for reasons of privacy, dignity and safety, with all members of the opposite sex excluded regardless of whether they hold a GRC. However, if sex means legal sex a woman-only space cannot be confined only to biological women because that is no longer a protected characteristic in the Act, but must by definition include biological males who hold a GRC. Taken to its conclusion, this leads to the untenable situation of male rapists housed in female prisons. The exceptions in the Act relating to gender reassignment become contested and unworkable, particularly as Lady Haldane states that GRC holders may not even have this protected characteristic.
   
   
2. Positive action
   Our judicial review concerned the Gender Representation on Public Boards (Scotland) Act 2018 which is a positive action measure to increase the number of female non-executive members on public boards. If sex means biological sex the historic under-representation to be redressed is clear and well-evidenced, and 50% female representation is proportionate to the percentage of women within society.
   
   If sex means legal sex, however, then quotas for public boards, all-women shortlists, training programs for women, etc can comprise entirely of biological men with GRCs and still lawfully meet the objective. Such a situation cannot be said to be proportionate and, as stated in para 39 of the decision in FWS v Scottish Ministers [2022] CSIH4, risks turning a legitimate positive measure into reverse discrimination. There is no evidence to support Lady Haldane’s assumption that male GRC holders are under-represented in the workplace or that female GRC holders have escaped the disadvantages faced by biological women.
   
   
3. Sexual orientation
   The Equality Act defines the protected characteristic of “sexual orientation” as meaning a person’s sexual orientation towards persons of the same sex, persons of the opposite sex, or persons of either sex. To suggest that a person is sexually attracted to another on the basis of certificate staus is absurd, as is the proposition that acquisition of a GRC transforms a heterosexual relationship into a homosexual one (or vice versa). The concept of legal sex has the potential to undermine the Act’s protections against discrimination by effectively depriving the very concept of sexual orientation of any meaning.
   
   
4. Pregnancy and maternity
   All the references to pregnancy and maternity throughout the Act are made in relation to, and only to, women. It necessarily involves a reference to female biology and it cannot possibly be the intention to place female GRC holders, who would be deemed legally male, outside the protections against discrimination because of pregnancy and/or maternity. Senior counsel for the Scottish Ministers accepted that it was a “perfectly sensible reading” for legal sex meaning “for all purposes”  to be disapplied here in preference of biological sex.

We think Lady Haldane failed to properly take into account the fact that the protected characteristics of “sex”,  “gender reassignment”, “pregnancy and maternity” and “sexual orientation” are all predicated on biological referents to “sex”, and has erred in law. 

In coming to her judgment Lady Haldane also failed to properly apply decisions drawn from previous cases heard by the Court of Session which were binding on her, in particular FWS v Scottish Ministers [2022] CSIH4 where the court stated unequivocally at para 36 that “an exception which allows the Scottish Parliament to take steps relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male”.

Our legal team are confident in an appeal challenge and have lodged our Grounds of Appeal with the Inner House Court of Session.

Background:

For Women Scotland was founded in 2018 and campaigns to protect and strengthen women’s rights. In February 2022 we won a judicial review at appeal which ruled the definition of women in the Gender Representation on Public Boards (Scotland) Act 2018 was unlawful as it impinged on matters reserved to the UK Government. The decision stated the Scottish Government can only legislate using the definition of woman in the Equality Act 2010, and that by incorporating those transsexuals living as women into the definition of woman the GRPB Act conflates and confuses the two separate protected characteristics of “sex” and “gender reassignment”, which is not permitted.
The court decision can be found here and wider commentary and links are on our website.

The court ordered the Scottish Ministers to remove the unlawful definition from the GRPB Act and the accompanying statutory guidance (including a footnote that referred to GRCs). However, the Scottish Government revised the statutory guidance in April 2022 to include the Equality Act definition of woman along with an addition that included biological men with a GRC. We raised a judicial review averring the guidance was still unlawful but In December 2022 Lady Haldane ruled in favour of the Scottish Ministers; it is this judgment we are now appealing.

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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 but for women to have full rights and protection it is important that “sex” is clarified as referring to biology.

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