Overview
Amidst the backdrop of an increasingly heated public debate on the relationship between trans rights and women’s rights, the Scottish Supreme Court has accepted a case that will transform the legal rights of all women in Scotland.
Background on the case
In 2018, the Gender Representation on Public Boards Act was passed and required that at least half of all non-executive members on public boards must be women. In the legislation, the legal definition of ‘woman’ included transgender women, regardless of whether they had obtained a Gender Recognition Certificate (GRC). In 2021, For Women Scotland (FWS), an organized feminist campaign group, brought forward a case against the Scottish government over the definition of ‘women’ in the 2018 Act. In response, the Government issued guidance and changed the definition of ‘women’ in the legislation to only include transgender women that possessed a Gender Recognition Certificate. The revised guidance was unsuccessfully challenged in the Inner House of the Court of Session by the For Women Scotland group, who argued that ‘woman’ under the 2010 Equality Act refers only to biological females. The judgment stated that ‘women’, as defined by the Equality Act (2010) and the Gender Recognition Act (2004), can legally be defined as such as long as they possess a full Gender Recognition Certificate. The For Women Scotland group, unhappy with the verdict, called for a second judicial review and appealed the decision to the Supreme Court, with the court stating:
‘The issue of the correct interpretation of, and interplay between, the Gender Recognition Act 2004 and Equality Act 2010, in particular in relation to the use of the term ‘woman’ and as to the consequence of the grant of a GRC under the 2004 Act, raise issues which involve arguable points of law of general public importance which ought to be considered by the UKSC at this time.’
Legal definition of ‘woman’
While the Scottish Government had initially defined ‘woman’ as those living as women or those who intended to or had already gone through the process of legal gender recognition, the FWS argued this definition was not the same as the separate definitions of women and transgender women outlined in the Equality Act (2010). Furthermore, they argue that the judicial reviews revealed that a definition of ‘woman’ that is inclusive of a person’s “acquired gender” on a GRC leaves the Equality Act (2010) unclear and unworkable for women. Specifically, FWS lawyer Aidan O’Neill argued that the Scottish Government’s view gave rise to ‘an unworkable minefield, an ambulance chasers’ dream’, and ultimately gave men more rights than women. O’Neill also claimed that allowing transgender people to change their legal sex would “run a coach and horses through the preservation of safe spaces for women and single-sex provision for women”. Additionally, he stated that there remained a clear difference between a person’s biological sex and their ‘certificated’ sex as stated in a Gender Recognition Certificate (GRC).
However, Ruth Crawford, representing the Scottish Government, argued that there was “nothing irrational or absurd about applying the relevant law to persons with a full GRC of the acquired female gender.” The key development in this case, as stated in the judgment, emphasizes that the definition of sex in the Equality Act refers to biological sex unless modified by a Gender Recognition Certificate (GRC). Meaning, trans women without GRCs are legally considered men according to the Equality Act. Therefore, those without a GRC do not have the right to use or access services intended for the opposite sex, including bathrooms, rape crisis centers, and other sex-specific services. Moreover, women’s associations, advocacy groups, and support networks will not be legally allowed to exclude trans women with GRCs on the basis of their biological sex. In conclusion, the Court of Session interpreted the law to mean that there is no protection afforded to biological sex and acquired sex as distinct groups.
Wider political & legal implications
Although not directly related, this case had a significant political bearing on the Scottish Government’s challenge to Westminster’s veto of the Gender Recognition Reform Bill. Holyrood’s bill removed the need for a medical diagnosis for a legal gender change and lowered the age threshold to 16. However, critics argued that the legislation would put women at risk by allowing men to gain access to women-only spaces. It is important to note that the Scottish Secretary, Alister Jack blocked the Bill from becoming law by issuing the first ever order under Section 35 of the Scotland Act (1998). This was done because Westminster argued that the legislation would affect the operation of UK-wide equalities protections. Although the Scottish government eventually lost their legal challenge as the Court of Session ruled that the UK government’s move to overrule the Scottish parliament was lawful, controversial gender reform legislation continues to dominate political discourse within Scotland and beyond.