For Women Scotland Ltd v The Scottish Ministers was heard by the Supreme Court on 26th and 27th November 2024. It concerned the effect of the Gender Recognition Act 2004 on the definition of “woman” and “man” for the purposes of the Equality Act 2010. 

It focused on statutory guidance issued by the Scottish Government under the Gender Representation on Public Boards (Scotland) Act 2018, which sets targets for increasing the proportion of women on public boards in Scotland. The guidance, which is required to be in line with the Equality Act 2010, states that “woman” includes a person whose “acquired gender is female” under the Gender Recognition Act.

The grassroots organisation For Women Scotland (FWS) challenged that guidance in the Scottish Court of Session, and lost. That, in effect, removed the category of biological sex as a protected characteristic from the Equality Act, ruling that references to “male” and “female” should be taken to refer to sex as modified by a gender-recognition certificate (GRC).

What was the case not about?

The case had nothing to do with gender self-identification – that is, the idea that people are the sex they say they are. The question under consideration concerned only the classification of the 8,000 or so people who have GRCs. (It had already been established that for the purposes of the Equality Act and all other laws, people who identify as the opposite sex, or as non-binary, remain legally of their biological sex.)

It did not directly relate to the separate protected characteristic of gender reassignment, which protects people with trans identities from discrimination and harassment in employment and a range of everyday situations. Having this protected characteristic does not change a person’s sex for any legal purpose.

It will not lead to a decision on how the Gender Recognition Act interacts with any law other than the Equality Act 2010 (although depending on the reasoning in the eventual ruling, the outcome may affect the interpretation of other laws where the meaning of “sex” matters).

Who were the parties?

The appellant was For Women Scotland, a grassroots group of campaigners for sex-based rights led by Marion Calder, Trina Budge and Susan Smith. The respondent was the Scottish Government.

Who were the interveners?

Several individuals and organisations applied to be allowed to submit written interventions arguing for one side or the other. Those that were accepted were:

• in support of the Scottish Government’s position that “sex” in the Equality Act 2010 must be taken to mean “sex as modified by a gender-recognition certificate”, the Equality and Human Rights Commission (EHRC; the national equality watchdog) and Amnesty International UK
• in support of FWS’s position that “sex” in the Equality Act 2010 must be taken to have the common-law, biological meaning, Sex Matters and a coalition of three organisations representing the rights of lesbians – Scottish Lesbians, the Lesbian Project and LGB Alliance.

As the parties to the case, FWS and the Scottish Government were given several hours each to make oral submissions. The EHRC and Sex Matters were also granted an hour each. 

What were the main arguments?

What follows is very broad-brush, and intended for a general audience. We have collected links to the written submissions and several excellent legal commentaries.

The Scottish Government’s argument rested on the clause in the GRA that says that when a person gets a GRC, their sex changes “for all purposes” to be the same as their “acquired gender”. The phrase “for all purposes” has already been clarified to cover only “legal purposes”, and the GRA goes on to expressly limit the “for all purposes” clause in several respects – including parenthood, sex-specific crimes and inheritance. The Scottish Government argued that since the Equality Act post-dated the GRA, it must be taken to be among the purposes for which a GRC changes a person’s sex.

The EHRC’s position regarding the effect of the GRA on the Equality Act was the same. But it made much more of the serious problems this interpretation causes for the operation of the Equality Act. Its position is that, as a matter of law, a GRC changes a person’s sex for the purposes of the Equality Act, but it would be better for human rights and for the comprehensibility and operation of the law if it didn’t. It thinks that Parliament should fix the problem by expressly disapplying the GRA from the Equality Act.

Amnesty agreed that a GRC changes a person’s sex for the purposes of the Equality Act, although the organisation actually supports gender self-ID, meaning it thinks that a GRC is not necessary for someone to count as a member of the opposite sex, or indeed as non-binary or gender-fluid. 

FWS’s central point was that the Equality Act is the law that replaced the Sex Discrimination Act 1975, in which “sex” meant biological sex and “man” and “woman” were unambiguously sex-based terms. Its written and oral submissions pointed out the serious consequences that follow from any implied change to that position, and argued that these could not have been what Parliament intended by passing the GRA.

Sex Matters agreed with the position of FWS and provided a careful textual analysis based on the principles of statutory interpretation to explain how the Equality Act and the Gender Recognition Act can be reconciled in such a way that “sex” holds its ordinary, biological meaning in the Equality Act despite the “for all purposes” clause in the GRA.

Scottish Lesbians and its partner interveners focused on the problems caused for lesbians by interpreting “sex” to mean “as modified by a GRC”, since it means that heterosexual men with GRCs count as lesbians for the purposes of the protected characteristic of sexual orientation, as do women whose male partners hold GRCs. One practical consequence is that an association with more than 25 members cannot restrict itself solely to lesbians (in the ordinary meaning), excluding male people with GRCs, since that would count as unlawful discrimination. 

What was said in court?

The two-day hearing saw the judges grapple with this and other consequences of replacing the natural categories of “male” and “female” with what might be called “certificated male” and “certificated female”. 

First up was counsel for the claimant, Aidan O’Neill KC, representing For Women Scotland. He made an impassioned speech about the harms caused to women by the patriarchy, illustrating this with examples of previous laws that had denied the rights of women as a sex class. Many women watching in court and online found this very moving. “Patriarchy gets inside all of us,” he told the court: “it empowers men, and demoralises women.” FWS has published O’Neill’s speaking notes. O’Neill went on to address points of law from his written submission.

Then Ben Cooper KC, acting for Sex Matters, had an hour to lay out the legal interpretation in support of the position that the GRA could not possibly predetermine all other laws where sex matters. He walked the judges through a sex-based interpretation, illustrating how it made application of the law and prevention of discrimination at an individual and group level straightforward, and how it provides protection for everyone. 

On day two, Ruth Crawford KC and Lesley Irvine, Advocate, made the Scottish Government’s case for the Gender Recognition Act meaning not just that someone may be deemed to have changed sex but that they actually are that other sex. They were challenged on the implications of this. This led to at times bizarre discussions involving male lesbians and pregnant men. The judges pressed Ruth Crawford on whether the Scottish Government’s interpretation meant that “pregnant men” (trans-identifying women) do not have maternity rights – yes, she confirmed that is so. At times the court struggled with language, tripping over “trans women” and “trans men” when talking about discrimination on the basis of sex and gender reassignment. The judges were aware that no surgery is required to obtain a GRC and that a person claiming to be a woman “may look like a man or like a woman”. Asked how sex-discrimination claims would work under the Scottish Government’s interpretation, Crawford said she would need a flowchart, and would have to think about it over lunch.

The Equality and Human Rights Commission’s intervention was given by Jason Coppel KC, pointing out the challenges in the current interpretation of the Equality Act, which he said was certified sex, as the Scottish Government claims, but which he said gave rise to serious difficulties.

The other interveners, Amnesty International and the lesbian groups, were not given a speaking slot but the written submission made by Karon Monaghan KC on behalf of Scottish Lesbians, LGB Alliance and the Lesbian Project had a major impact on day two. Questioned by the judges, Ruth Crawford confirmed that the Scottish Government’s interpretation means that there are male lesbians, and that female lesbians cannot lawfully form an association that excludes them. Her proposed solution was that such lesbians could form an association of “gender-critical lesbians”, relying on the Forstater ruling.

The consequences of the Scottish Government’s legal interpretation for sexual orientation are shown in the graphic below.

Finally, Aidan O’Neill for FWS did a brief summing-up in which he challenged points made by every party. He also pointed out the inconsistency of the Scottish Government’s claim that sex can only be biological sex in a statute which explicitly says that the GRA does not apply, since the fight in Holyrood over Johann Lamont’s six-word amendment to the Forensic Medical Services (victims of sexual offences) Scotland Act 2021 was about replacing “gender” with “sex”, clearly relating to biological sex, but with no disapplication of the GRA. 

Does this case matter beyond quotas on public boards in Scotland?

Yes. The details of Scotland’s devolution settlement and the provisions for “positive action” in the Equality Act mean that the definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 must precisely match the meaning of “woman” in the Equality Act. This case will therefore settle that meaning not just in Scotland but across the UK, and not just when it comes to quotas for public boards but across the Equality Act.

When will we know the outcome?

We don’t have a firm date, but certainly not before Christmas. Our best guess is February or March.

What are the possible outcomes?

The Scottish Government wins.

The meaning of “sex” in the Equality Act is fixed as “sex as modified by a GRC”. This means, among other things, that commissioning and planning a genuinely single-sex service becomes extremely difficult, since an equality impact assessment will never consider the needs of (biological) women as distinct from (biological men) – in particular, it will never be able to consider whether outcomes for women are harmed by including men with GRCs stating their sex as female. 

The Scottish Government wins, but… 

The judgment of the Scottish Inner Court against which FWS was appealing held that the meaning of “sex” could vary throughout the act, with the default being “sex as modified by a GRC” and the natural meaning of sex substituted when any other reading would be absurd. This was a surprising ruling, since core terms listed in a law’s “definitions” section are generally held to have a single, fixed meaning throughout. Nevertheless, it is not impossible that the Supreme Court could decide something similar. 

Another possibility is that the Supreme Court agrees with the Scottish Government that “sex” in the Equality Act as it stands means “as modified by a GRC”, but that it shouldn’t. It could say that the two laws together create a terrible muddle that it falls to Parliament to fix.

FWS wins, and “sex” in the Equality Act takes its natural meaning.

What next?

If FWS wins:

The Scottish Government will have to amend the Gender Representation on Public Boards (Scotland) Act 2018 to make clear that “women” does not include men with GRCs.

The EHRC will need to rewrite its guidance on single-sex services to remove all the complications concerning GRCs.

Sex Matters and other campaigners will seek to ensure that all guidance from government and publicly funded bodies makes clear that the protected characteristic of “sex” refers to the natural meanings of male and female, and that this cascades through to the public-sector equality duty and all public funding.

If the Scottish Government wins:

It may be open to FWS to take an appeal to the European Court of Human Rights. It has not said whether it is considering this option.

In any case, this is not the end of the road for campaigners seeking to establish the natural meaning of sex in law and life. The next steps concerning the GRA and the Equality Act could be political or legal, depending on the judgment. 

For Sex Matters, the immediate next legal battle will concern a different law: the Police And Criminal Evidence Act (PACE), which among other things sets out the rules for searching of detainees. We are preparing to take legal action against British Transport Police, which says that a male police officer with a GRC stating his sex as female is able to search female detainees. We say this is a contravention of PACE, which requires same-sex searching, and of women’s Article 3 rights in the European Convention on Human Rights to be protected from inhuman and degrading treatment.

The post For Women Scotland in the Supreme Court appeared first on Sex Matters.

The post Gender recognition and the Equality Act 2010 appeared first on Sex Matters.

The case concerns the effect of the Gender Recognition Act 2004 on the definition of “woman” and “man” for the purposes of the Equality Act 2010. 

The grassroots organisation For Women Scotland is challenging an earlier decision by the Scottish Court of Session which effectively removed the category of biological sex as a protected characteristic from the Equality Act 2010 and said that the “default” meaning includes acquired gender. 

The case focuses on the lawfulness of statutory guidance issued by the Scottish Government under the Gender Representation on Public Boards (Scotland) Act 2018, which sets targets for increasing the proportion of women on public boards in Scotland. The guidance, which is required to be in line with the Equality Act 2010, states that “woman” includes a person whose “acquired gender is female” under the Gender Recognition Act. 

Sex Matters, represented by Ben Cooper KC and David Welsh, has been given permission to make written and oral submissions in the public interest on the broader implications of the matters raised in this case for the coherence, effect and operation of equality law across England, Scotland and Wales and the rights and protections of different groups (including women, men and transgender people).

Sex Matters is a human-rights charity. Its object is to promote human rights where they relate to biological sex. Its mission is to promote clarity on sex in law and policy in order to protect everyone’s human rights. As a charity, its objects have been recognised to be in the public interest.

CEO Maya Forstater said: “The implications of this case are much wider than the make-up of public boards in Scotland. It is increasingly clear that unless there is clear recognition in law that being male or female is a material reality, and that sex-based rights are protected, women’s rights will continue to be whittled away and obscured by a cloud of uncertainty. 

“We will be calling on the Supreme Court to focus on the protections for universal human rights that are at stake, and to recognise that while everyone has the right to express themselves, dress how they please and call themselves what they want, this does not override the right of women to privacy, dignity, fairness and autonomy. Protecting everyone’s rights requires laws and words that reflect reality.”

Chair of Sex Matters Naomi Cunningham said: “We are delighted to be intervening at the Supreme Court. Sex Matters is a new charity, only registered this year, but it has rapidly established itself as an effective and respected contributor to the debates about how to make the law work for everyone.”

The post Sex Matters to intervene in landmark For Women Scotland supreme court case on meaning of sex in the Equality Act appeared first on Sex Matters.

“modernise, simplify, and reform the intrusive and outdated gender recognition law to a new process. We will remove indignities for trans people who deserve recognition and acceptance; whilst retaining the need for a diagnosis of gender dysphoria from a specialist doctor, enabling access to the healthcare pathway.”

Anneliese Dodds, Shadow Secretary of State for Women and Equalities, has described the existing process as “intrusive, outdated and humiliating”. She pledged to “remove invasive bureaucracy and simplify the process”. Stonewall call it “inhumane and undignified”

Let’s look at the facts: We have published a briefing on the evidence about how the process is working based on statistics released by HM Courts & Tribunals Service, official information and the records of the Gender Recognition Panel user group.

Too complex?

The Gender Recognition Panel process is remarkably efficient, requiring two short doctors’ reports and a handful of bank statements, payslips and utility bills. The success rate of applications for a gender-recognition certificate (GRC) is consistently 80-90%.

GRC application results and success rate

Intrusive?

There is no evidence that the current process is deterring people from applying for GRCs. Applications have soared since 2019, from around 30 a month to over 100.

Number of applications for a standard GRC

Humiliating?

The application is decided on the basis of the paperwork by a two-person panel made up of a medical and judicial member. The panel tends to take a supportive approach. If it finds that applicants have submitted insufficient evidence (such as failing to fill in the form correctly, or failing to send marriage or divorce documentation) it issues directions to enable applicants to supply the additional documentation. In 2019 Paula Gray, then President of the Gender Recognition Panel, explained the approach:

“We rarely refuse applications, and when we do it’s generally due to a consistent lack of cooperation, the applicant having been given a number of opportunities to provide the necessary documentary evidence. I probably deal with about 200 cases a year – although some are previously adjourned applications and over some 14 years I think I have refused three.”

Evidence from Gender Recognition Panel User Group meetings where trans advocacy organisations and clinicians speak freely with panel members and administrators did not describe the process as demeaning, intrusive or distressing.

Outdated?

20 years ago, when the Gender Recognition Act (GRA) was passed, it was estimated that 5,000 people identifying as transsexuals lived in the UK. Since then 8,464 certificates have been issued, over a third of those in the past four years. In 2022 the process moved online and the cost was reduced to £5. A system of “conditional refusals” was also set up to make it easier to reapply after being refused. 

Applications are being submitted and GRCs awarded in greater numbers than ever before. 

There is no evidence that the GRC application process is proving an unreasonable barrier to those seeking certificates. Rather, the campaign to make it easier for people to get a GRC is motivated by a desire to open up the process to those who would not currently qualify. Stonewall and allied campaigners see any requirement for medical diagnosis as “inhumane and undignified”. 

The age profile of applicants has changed, with those in their 20s and 30s rising from around 30% of applications in 2009 to around 50% in 2023/24.

Age of GRC applicants

^{(NB ages are estimated based on birth year bands reported by HMCTS)}

And the sex mix has shifted from 80% male and 20% female to 50% male and 50% female. 

Sex of GRC applicants

This pattern of sharply rising numbers, more younger people, and more “female to male” transitioners reflects and follows on from the pattern seen at the NHS Tavistock Gender Identity Development Service (GIDS) clinic and investigated by Dr Hilary Cass. 

Adolescent referrals to GIDS and GRCs awarded

Any action to “modernise, simplify, and reform” the Gender Recognition Act should be based on evidence of how the current process is working, consideration of the problem the GRA intended to solve and recognition that other people’s rights matter. It is irresponsible to make it easier for people to change their sex for “all [legal] purposes”, as the GRA does, without considering the impact on women’s rights, child safeguarding and other areas of law and policy where sex matters. 

The post What are the facts about applying for a GRC? appeared first on Sex Matters.

On 1st November the Court of Session upheld the judgment by Lady Haldane from last December that a gender-recognition certificate (GRC) changes a person’s sex for the purposes of the Equality Act. This is a Scottish judgment, but is likely to be persuasive more broadly. Lady Haldane was put on the spot to decide between two possible definitions of the protected characteristic of sex, for one narrow application of the Equality Act. In pronouncing judgment she created consequences that rippled across the operation of the Equality Act.

This judgment means that:

• the natural categories of “male” and “female” are not recognised by the Equality Act 2010 
• the law treats transgender people with and without a GRC differently, even though they are not different in any material respect.

On 8th December Lady Haldane upheld the lawfulness of the UK government’s use of Section 35 to block the Gender Recognition Reform (Scotland) Bill. The reasons were based on this same interpretation of the Equality Act.

The government argued that the way the Equality Act 2010 and the Gender Recognition Act 2004 interact poses risks to women’s rights and safeguarding, which would be made worse with self-ID.

The 12 adverse effects 

The government highlighted eight adverse effects of the action of the GRA for the Equality Act in its justification for the Section 35 Order:

1. Clubs and associations. Women’s associations, including associations of lesbians and for sport, are not allowed to exclude men who identify as women from membership if those men have a GRC. 
2. The public-sector equality duty (PSED). The legal definition of man and woman makes a difference to the groups whose needs and disadvantages a public body is required to consider and advance. 
3. Equal pay. A single employee with a GRC in a workplace could lead to an equal-pay issue being falsely identified, or to a failure to identify such an issue.
4. Single-sex and separate-sex services. Service-providers are finding it difficult to operate, even though it is lawful to provide services that are single-sex, including if this disadvantages trans people. This leads to chilling effects: disincentivising providers from offering single-sex services and leading to women self-excluding because they are told that they may encounter males (and be called transphobic if they object).
5. Competitive sports. The legal effect of a GRC makes it more complex to exclude male people from female sports. 
6. Occupational requirements. There are legal and operational risks when trying to advertise roles that are female-only, if a person with a GRC applies.
7. Schools and colleges. Single-sex schools would have problems maintaining clear admission rules if under-18s were able to get GRCs.
8. Sex discrimination. A GRC changes the comparators in a sex-discrimination claim, even though in practice there is no material difference between trans people with and without certificates. 

The judgment confirmed that all of these concerns were reasonable. 

The Equality and Human Rights Commission, in a letter from Kishwer Falkner to the Minister last April, also identified three further issues:

9. “Transmen” with a GRC do not have protection in relation to pregnancy under the characteristics of “pregnancy and maternity” or sex. 
10. Positive-action measures such as “women-only” shortlists and other measures aimed at increasing female participation must include males with a GRC. 
11. Data collection: “When data are broken down by legal not biological sex, the result may seriously distort or impoverish our understanding of social and medical phenomena.” 

We have highlighted a 12th issue: women’s charities. Not having a clear protected characteristic of sex makes it difficult for single-sex charities (including those concerned with violence against women) to operate effectively. This has thrown organisations in the women’s sector into turmoil, leaving them riven by conflict and fearing legal risks. All this distracts them from their vital work.

For the Equality Act to work effectively all of these issues need to be addressed. This is not a question of adding more exceptions; what is needed is one simple, clear amendment to clarify that for the purposes of this law, sex means sex.

What needs to happen next?

On 6th December 2023, in the House of Commons, the Minister for Women and Equalities said:

“The law is no longer clear. In fact, I would go so far as to say that the law is now a mess because of changing times. We need to provide clarity. We cannot assume that the wording as was intended in 2004 and 2010 still works in 2023, and we are carrying out work to fix that.”

Whatever action the government takes to fix the law it should address all 12 adverse effects, and maintain coherence. We think the Government should now act urgently to amend the definition of woman and man in the Equality Act. It should ask Parliament to agree to amend the GRA 2004 to say:

“The fact that a person’s gender has become the acquired gender under this act does not affect the status of the person as a man or woman in relation to the protected characteristic of ’sex‘ in the Equality Act 2010.”

This could be done through secondary legislation using Section 23 of the Gender Recognition Act (which was intended for exactly such a purpose), or through primary fast-track legislation that achieves the same result.

This would not remove the general prohibition on discrimination against trans people, as there is a separate protected characteristic of gender reassignment. It would resolve the 12 adverse effects and maintain a single clear coherent definition of sex in the Equality Act.

The Istanbul Convention

The UK has ratified the Istanbul Convention on preventing and combating domestic violence and violence against women. It is based on the recognition that:

“the realisation of de jure and de facto equality between women and men is a key element in the prevention of violence against women.”

Istanbul convention

The convention requires parties to take legislative and other measures to prohibit discrimination against women, and to provide specialist support services to women who are the victims of sexual and domestic violence. The need for specialist services for women is based not only on the practical need to keep vulnerable women safe from men who might attack or exploit them, but also on the fundamentally different experiences, disadvantages and needs of women as victims of violence.

In January the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) will be visiting the UK. The UK Government and the Equality and Human Rights Commission will have to explain that the current position in law is that the Equality Act 2010 does not recognise that women (female people) are a group with particular needs and disadvantages that are different from those of male people who have a GRC. This undermines women’s services.

Failing to address the problem with the GRA and the Equality Act puts the UK at risk of breaching its commitments under the Istanbul Convention.

The post Sex and the law at the end of 2023 appeared first on Sex Matters.

The Scottish Government’s argument that the Secretary of State for Scotland “acted irrationally by failing to acquaint himself with the relevant facts and material before making the Order” was rejected by the judge, Lady Haldane. She noted that with a four-week deadline to decide whether to invoke Section 35 of the Scotland Act after the bill was passed last Christmas, he could not undertake an extensive information-gathering exercise and had to rely on information and advice from others. 

The judgment notes that this included a letter from the Chair of the Equality and Human Rights Commission and submissions from “organisations active in the area of sex-based rights,” such as Sex Matters and Murray Blackburn Mackenzie, as well as notes from the UN Special Rapporteur Reem Alsalem and the UN Independent expert Victor Madrigal-Borloz. 

“Much of this material supported the concerns raised about adverse effects, particularly as regards the issue of inadequate safeguards, and some did not provide such support, such as the letter from Mr Madrigal-Borloz.”

Court of Session, December 2023

Lady Haldane also commented that the submissions to the Court of Session from Stonewall and the Equality Network disagreed with each other over the question of the significance of obtaining a GRC.  

Stonewall’s submission stated:

“Trans people pursue this process because of the significant advantages that follow from obtaining a GRC. Without a GRC, the gender marker on a trans person’s birth, marriage or death certificate will not match their gender presentation (and may not match the gender marker on legal documents such as passports and driving licences, which do not require a GRC to change the gender marker). Any time a trans person is required to produce a birth, marriage or death certificate, they will be outed as trans.” 

Stonewall submission

Whereas the Equality Network said:

“There is at the heart of the dispute a misconception about what having a Gender Recognition Certificate (‘GRC’) does and does not do. A GRC recognises the way in which a trans person is already living, it does not grant permission to them to do so. There are, as the Intervener submits in more detail below, very few occasions in which having a GRC has a practical effect.  That does not detract from what it means to a trans person to have a GRC… The focus of the respondent’s reasons for making the s.35 Order is on ‘legal sex’; but in the day-to-day life of a trans person, the concept of ‘legal sex’ is unimportant.” 

Equality Network submission

Sex Matters is relieved that the Court of Session in Scotland found in favour of the UK Government’s decision to use Section 35 to block the Gender Recognition Reform Bill from royal assent after it was rushed through without adequate consideration of the risks and impacts.

As MBM described it last year, this was the result of “years of an unusually poor policy process, insincere consultations, clearly deliberate evasion on a key point, and a wasted opportunity to improve the law at earlier parliamentary stages”. The UK Government therefore acted in a timely way to stop an ill-conceived law that would have had adverse effects on the operation of the Equality Act and the protection it gives to women and girls. 

We are pleased that, together with MBM, legal academic Michael Foran and others, we were able to play a part in providing rapid technical advice on human-rights matters and contributing to the sound administration of the Equality Act, which protects everyone’s rights. 

However, this case has further exposed the lack of clarity about the interaction between the Equality Act and the Gender Recognition Act, and what having a gender-recognition certificate (GRC) means in practice. 

What should happen next?

If judges, government bodies, and human-rights organisations are unable to agree on the basic interpretation of a law with which every person in the UK must comply in their everyday working life, this suggests it is time for Parliament to clarify the law. 

As Kemi Badenoch, the Minister for Women and Equalities, said in the House of Commons on Wednesday: 

”As a result of the Haldane judgment [in the For Women Scotland case] there is now confusion between biological sex and legal sex and certainly in terms of the interpretation that people put on it… The law is no longer clear. In fact, I would go so far as to say that the law is now a mess because of changing times. We need to provide clarity.”

Kemi Badenoch

She promised that the government in Westminster would now carry out work to fix that. 

While the judgment in the Section 35 appeal prevents self-ID being brought into law in Scotland, it does not provide clarity about what a GRC means. 

We call on the UK Government to take the necessary clear and bold action now to clarify, whether through secondary or primary legislation, the meaning of sex in the Equality Act. 

It should take immediate action to make clear in the information provided to GRC holders that the certificate is not an access-all-areas pass to services and spaces provided for the opposite sex, or a way to compel others to pretend that a person is the opposite sex. 

Sex Matters will continue to provide evidence-based analysis and press all administrations to protect everyone’s rights in line with the European Convention on Human Rights. 

The post Section 35 appeal rejected appeared first on Sex Matters.

Dear Rishi Sunak and Kemi Badenoch 

It is time to act. 

Yesterday the Court of Session in Scotland delivered a shocking verdict in a case brought by grassroots women’s rights group For Women Scotland, and supported by Sex Matters as an intervenor.

The court declared that in the law about sex discrimination and single-sex services, the terms “man” and “woman” do not mean actual sex, but only whether a person has a certificate declaring them to be male or female. 

A certificate can be obtained by submitting a few documents that show a person has changed their name for the past two years, together with two doctors’ reports supporting their self-reported feelings of “gender dysphoria”. Being a pregnant woman is no bar to getting a certificate as a “man” and being a rapist is no barrier to getting a certificate as a “woman”. Neither is the certificate forfeit when a “man”​​ gets pregnant and gives birth or when a “woman” commits indecent exposure or rape.

The Scottish court declared that having a certificate is not simply about relations between the individual and the state in matters such as marriage and pensions, but changes someone’s sex for the  purposes of the Equality Act, affecting their relations with employers, service-providers, public authorities and other individuals, and even their sexual orientation. The judgment stated that “there is no such thing as being ‘legally lesbian’ and we have not identified a problem which would require that sex be referable to biology alone”.

This is in stark contrast to what we have been told for more than a decade about gender-recognition certificates. It means that:

1. A fully intact man who obtains a certificate can apply to join a women’s association such as a self-help group of survivors of sexual violence, or an association of lesbians, and if he is turned away he can sue for discrimination. 
2. A young woman who obtains a certificate saying she is a man loses all protection against sex discrimination in relation to being female. 
3. A man who obtains a certificate has the right to access services provided for women, from changing-rooms and showers to women’s refuges and single sex wards. Service providers will need to have in-depth knowledge of the law to turn him away. Most will be too afraid and will instead tell women that they must accept him as a woman. Many women will self-exclude.
4. A man who gets a certificate will be able to be appointed to a job which is advertised as being just for women, such as providing intimate care at home to elderly or disabled women. 
5. Sporting organisations will be forced to include males with certificates in training, funding and leadership development programmes for women’s sports.
6. Employers will be told not to think about pregnancy and maternity discrimination as something that happens to women, but instead to “pregnant people” of both sexes.
7. A gender-recognition certificate is seen as changing a straight man into a lesbian, and a lesbian into a straight man. It fundamentally changes the definition of sexual orientation in the Equality Act. 
8. When it comes to the public sector equality duty, public bodies, including prisons, hospitals and local councils funding refuges, will be told that they should not think of the need of natal women as a group, but only “women” including those who are actually men but who have a certificate. 

In several areas there are narrowly drawn exceptions that may provide a defence to employers, public bodies and service-providers that continue to operate with regard to actual sex, and that are willing to take the risk of being sued; but experience shows that few are. Women-only services are disappearing up and down the country.

We do not believe this is what Parliament intended, and we understand it could still be challenged. But it is not right that thousands of individual women and men may again have to fundraise to take this battle on to the Supreme Court. Nor is it right that the Equality and Human Rights Commission has left it to these self-funding groups to make the legal and human rights arguments.

The judges in the For Women Scotland case had only one day of hearing to consider the question of whether the law on sex discrimination is no longer about sex. They heard no evidence from witnesses. They rightly said in their judgment: “This is an area on which individuals and organisations hold firm, even entrenched views, where there is intense public debate. At its heart are matters of social policy which are best addressed by parliaments.” Similar statements have been made in every recent court judgment on controversies over women’s rights and transgender demands. 

Politicians say they know what a woman is. But these are cheap words when those politicians do not step up and protect women’s rights, and the clarity of language, rules and laws that are needed to defend those rights. 

In June this year a Westminster Hall debate was held on the proposal to amend the Equality Act to make clear that sex means actual sex. More than 110,000 people signed the petition, and 25 MPs took part. Support for the petition was particularly strong in Scotland, where the Scottish Government’s attempt to relax even further the conditions for grant of a GRC alerted many people to the dangers this would pose for women. The response to the petition showed a real appetite for change. 

We call on you now to:

• Commit to publishing a proposal for secondary legislation to clarify the relationship between the Equality Act and the Gender Recognition Act, and to urgently consult on it, with a view to introducing it in the next Parliament. 
• Support the development of a post-legislative scrutiny committee in Parliament to consider how the Gender Recognition Act is working in practice, whether it is consistent with women’s rights and whether it needs to be reformed, and how it relates to reserved and devolved powers.
• Hold a public inquiry on the erosion of protection for single-sex services, spaces and data, and the impact of this on safeguarding, which brings together experts and stakeholders from different groups and perspectives and allows all views to be heard.

Kind regards

The post It’s time to act appeared first on Sex Matters.

In the case of For Women Scotland v The Scottish Ministers [2023] CSIH 37 the Court of Session has handed down a judgment that:

“a person with a GRC in the female gender comes within the definition of “woman” for the purposes of section 11 of the Equality Act, and the guidance issued [by the Scottish Government] in respect of the 2018 Act [ Gender Representation on Public Boards (Scotland] is lawful.”

Read For Women Scotland’s statement in response.

Sex Matters’ statement

Sex Matters intervened in the case.

We applaud For Women Scotland for bringing this case, which is an important step towards forcing more clarity on how the law defines the words “male” and “female” and “man” and “woman” in different contexts. 

While the outcome is disappointing, we welcome the judges’ finding that “those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex”.

The judgment leaves many issues unresolved, such as issues around freedom of association in single-sex associations, and the assertion that discrimination in relation to pregnancy, maternity and breastfeeding is not a form of sex discrimination. 

The judgment’s assertion that there is no such thing as being ‘legally lesbian’ does nothing to resolve the issue of whether lesbians can legally form associations which exclude men who identify as lesbians and who have a GRC which deems them to be female. 

The judgment emphasises that this is an area “where there is intense public debate” and that “at its heart are matters of social policy which are best addressed by parliaments”.

We continue to call on the UK government to resolve the issue using secondary legislation to clarify the meaning of sex in the Equality Act.

The post Court rules that GRC changes sex for the Equality Act appeared first on Sex Matters.

Section 9 of the Act provides:

(1) 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).

(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).

(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.

In his first-instance judgment on the question of whether Maya Forstater’s “gender-critical” belief was protected under the Equality Act 2010, Employment Judge (as he then was; now HHJ) James Tayler said (at paragraph 84): 

I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned.

[emphasis supplied] 

The judge’s conclusion that Ms Forstater’s belief was not worthy of respect in a democratic society was of course successfully appealed. But the proposition that a GRC gives its holder a general right to be treated “for all purposes” as if he or she has changed sex is still widely believed and repeated. I wonder if this is behind so many politicians’ insistence that some women have a penis: it’s almost as if they think that a GRC imposes a legal obligation to pretend really hard. 

Let’s look at it again, stripped of the surrounding verbiage and focused on the male-to-female transition which in practice gives rise to almost all the controversy: 

[A GRC] provides [a male holder with] a right… to be treated for all purposes as being [a woman]. 

It’s a claim that may look quite appealing if you jog past it quickly without engaging your brain. It’s a state-issued certificate that says a man is a woman (or vice versa), right? So it must create a right to be treated as the opposite sex.

I want to examine that claim against the background of two questions: 

1. What does it mean?

2. What kind of legislation is the GRA – what sort of thing is it trying to do?

I’ll take those in reverse order. 

What kind of legislation is the GRA? 

Before dealing with this question directly, we should back up a bit and think about what the possibilities are – the range of kinds of things that legislation does. Legislation can: 

1. create criminal offences: e.g. speeding, trading while insolvent, possessing a firearm without a licence;
2. give individuals rights they can enforce against each other, against organisations or against the state: e.g. not to be unfairly dismissed, to consult a solicitor if arrested, to see what information others hold about you, to access information held by public authorities, to be provided with an education, to order someone out of your home;
3. create organisations, public offices or institutions, like the EHRC, the Financial Conduct Authority, the Bar Standards Board or the Pubs Code Adjudicator;
4. confer powers on statutory bodies, e.g. to own property, to spend money, to employ staff, to publish guidance, to make rules, to compel people to answer questions, to conduct investigations, to impose fines; 
5. make procedural rules about how different kinds of legal disputes are to be resolved;
6. make rules about how other rules are to be interpreted. 

I’m sure that’s not an exhaustive list, but it’s sufficient to illustrate that there are quite a lot of different kinds of things that legislation can do; and that a legitimate – indeed necessary – question when interpreting statutory words is “What kind of thing is this particular piece of legislation trying to do?”

Where legislation creates substantive rights and liabilities – the right not to have your nose punched, say – those rights need to be backed up by some kind of enforcement mechanism. If Parliament passed a Nose Punching Act that simply said “No one shall punch another’s nose without proper cause”, it wouldn’t be much use without provisions about enforcement and how disputes are to be resolved. To take a genuine example, the Employment Rights Act 1996 doesn’t merely create a right not to be dismissed unfairly; it gives employment tribunals jurisdiction to consider complaints of unfair dismissal, and powers to order reinstatement and payment of compensation. 

Against that background, we’re better placed to look at the GRA and ask “What kind of things does it do?” It’s not a very long act, so we can run through it. 

• Sections 1 to 8 deal with who can apply for a GRC, and how those applications are to be determined. 
• Section 9, quoted in full above, deals with the effect of a GRC.
• Section 10 deals with registration of GRCs.
• Section 11 gives effect to schedule 4, which makes various consequential amendments to marriage law, and sections 11A to D make other provisions about the effect of a GRC on a marriage or civil partnership.
• Section 12 provides that a GRC does not affect the status of the holder as the mother or father of a child.
• Section 13 gives effect to schedule 5, which is about social security. 
• Section 14 gave effect to schedule 6, which made some minor amendments (now superseded by the Equality Act) to the Sex Discrimination Act. 
• Sections 15 to 18 deal with the effects of GRCs on the inheritance of property and titles. 
• Section 19 (repealed) made provisions about single-sex sports, now to be found in the EqA. 
• Section 20 deals with the effect of a GRC on “gender-specific offences”. 
• Section 21 deals with foreign gender change and marriage. 
• Section 22 creates an offence of disclosing information about a person’s GRC or gender history in certain circumstances. 
• Section 23 gives the Secretary of State power to modify the operation of other legislation in relation to GRC-holders, and section 24 makes procedural provisions about how orders under the Act are to be made. 
• Sections 25 to 29 deal with interpretation, commencement, transitional arrangements and short title. 

If HHJ Tayler was right in Forstater that a GRC provides the holder with the right to be treated for all purposes as being of the opposite sex – i.e. that it provides a male GRC-holder with the right to be treated for all purposes as a woman, and vice versa – that right must be conferred by section 9: it must arise from the words “the person’s gender becomes for all purposes the acquired gender”. 

Are those words sufficient? There are no others that can help. There is no provision that says anything like “It shall be unlawful for a person A to fail to treat a person B, who holds a GRC, as if B had changed sex, to misgender him or otherwise to fail to treat him in a manner appropriate to his acquired gender” or “Any person who fails to treat the holder of a GRC as having changed sex shall be guilty of an offence”. And if it is indeed unlawful to do those things, there is nothing to tell us who might prosecute any offence, or what remedy B might seek, or in what court or tribunal he might seek it. 

So according to the Tayler approach, it would seem that the GRA is rather similar to my notional Nose Punching Act, blithely imposing duties on all and sundry without saying anything about the circumstances in which they arise, the kinds of liabilities they impose or the enforcement regime. 

That should be enough to dispose of the idea that a GRC confers a general right to be treated as the opposite sex. But my second question is more fundamental. What could such a right mean? What is it to be “treated as a woman”? In what respects does an actual woman have a positive right to be “treated as a woman”? And in which of those respects could a GRC meaningfully be said to confer that right on a man? 

What is it to be treated as a woman? 

I must know the answer to this: I am a woman, so this is something I have presumably been experiencing all my life. 

The truth is, it doesn’t arise very much. And in most of the situations in which it does arise, it shouldn’t. Everyone’s list will be different, but here is my list of the kinds of occasion I can think of on which I have been treated as a woman (or girl). 

1. I was admitted to a girls’ school. 
2. I am able to use women’s toilets and changing rooms. 
3. I have been sexually harassed.
4. I have been asked out by heterosexual men. 
5. I have been followed late at night to the point that I have feared for my safety.
6. Male colleagues have talked over and ignored me at meetings.
7. I have been treated with condescending or facetious gallantry.
8. I have been invited to a hen party.
9. I have received a proposal of marriage. 
10. I have entered into a marriage. 
11. I have been asked if I might be pregnant before certain medical procedures. 
12. Men have offered to carry my heavy suitcase up flights of stairs for me. 
13. I have been offered medical screening appropriate to my sex.
14. I have been treated by outsiders as the person responsible for domestic matters in my household.
15. I am almost invariably referred to as “she” in the nominative case, “her” in the accusative. 

When could a person be said to have a legal right to be treated in those ways? These can be classified as purely social and interpersonal interactions (3, 4, 5, 7, 8, 9, 12, 14 and sometimes 15); occasions on which my sex has affected my treatment by some part of the state or a public authority (1, 9, 10, 13 and sometimes 2); and workplace interactions (6 and sometimes 2 and 15). 

If I have a right to a particular kind of treatment, someone else must have a duty to provide it. In which of these situations where I have been “treated as a woman” could it be said that I had a right to be treated as a woman?

We can dispose of the purely social instances at once. Most of my examples are of things that no-one in any sensibly imaginable legal system could be said to be duty-bound to do. Still less are they things that our particular legal system does oblige anyone to do. It should be obvious that no-one has ever had a duty to sexually harass me, to ask me out, to follow me late at night, to treat me with condescending or facetious gallantry, to invite me to a hen party, to propose marriage to me, to offer to carry my suitcase for me or to assume that I am in sole charge of choosing the fabric for my curtains. 

School admissions, medical treatment, marriage, and (sometimes) access to women’s toilets and other facilities have involved my relations with various bits of the state. I was eligible to apply to be admitted to my girls’ school, and could not have been refused admission on grounds of my sex. The NHS could not without negligence provide me with medical care without taking account of the fact that I am female, so it makes sense to say that I have a right to be treated as female by the NHS. The state could not have lawfully refused to treat my marriage as a valid marriage between a man and a woman, so there too I had a right which imposed duties on others. And to the extent that I have used ladies’ toilets provided by educational providers and employers which were under a duty to provide single-sex facilities, I’m prepared to assume that I must have had an individual right to use those facilities which I could, if necessary, have enforced. 

Finally, pronouns. Does anyone have a legally enforceable duty to refer to me by feminine pronouns? My friends and acquaintances certainly don’t. If they take to calling me “it” (or “he”, or “Terfy McTerfface”, come to that), that will be rude and the friendships are likely to founder. But you can’t in general get the courts to command people to be polite to you. If my colleagues called me “it” or “they”, that might possibly give rise to a claim under the Equality Act 2010, but that has much more to do with my right not to suffer discrimination or harassment than any kind of specific right to be “treated as a woman” arising from the fact that I am one. 

In which of those cases does a GRC confer on a man the right to be “treated as a woman”? 

In any situation in which a woman has no legal right to be “treated as a woman”, a GRC cannot confer such a right on a man. If no-one ever had a duty to sexually harass me, ask me out, propose marriage to me, talk over me in meetings and so on, then no-one can have a duty to do those things to a man who possesses a GRC. Self-evidently – provided only you look straight at it and keep your hair on – in all the social ways in which people often treat men and women differently, a GRC cannot win a man the right to be “treated as a woman”. 

• A GRC cannot affect school admissions, because currently no child can have one. 
• A GRC will rarely if ever mean that its male holder cannot be excluded from single-sex spaces or services for women, although it may affect the legal route by his exclusion can be justified. 
• A GRC does allow a man to contract what will be recorded as a heterosexual marriage with another man, or what will be recorded as a same-sex marriage with a woman. 
• A GRC does not have any bearing on medical matters – indeed, it would be dangerous if it did. 
• A GRC explicitly provides a right to be treated as a woman for the purpose of pensions: although most of the differences between men and women in pensions have been eliminated, a GRC lets a person who is male be recorded as female in the tax and national insurance system. 
• A GRC makes no difference to any request or demand to be referred to by “preferred pronouns”. If and to the extent that such a claim can ever be enforced, that will have to be done by characterising refusal to use preferred pronouns as harassment or discrimination under the Equality Act. The legal rights and wrongs of that are far from settled, but so far as I’m aware there is no-one at all who suggests that a GRC affects the outcome. 

Conclusion: the GRA is an interpretation act 

It can be seen from this quick survey of the respects in which a person may be said to be “treated as a woman” that a GRC makes little difference to other people’s obligations. As Choudhury J said when Forstater reached the Employment Appeal Tribunal: 

Although section 9 of the GRA refers to a person becoming “for all purposes” the acquired gender, it is clear from these references in decisions of the House of Lords and the Court of Appeal, that this means for all “legal purposes”. That the effect of section 9 of the GRA is not to erase memories of a person’s gender before the acquired gender or to impose recognition of the acquired gender in private, non-legal contexts is confirmed by the comments of Baroness Hale PSC in R (C) v Secretary of State for Work and Pensions [2017] 1 WLR 4127.

This is not surprising. After all, the default position in law is that sex is irrelevant: that is almost the whole point of the Sex Discrimination Act 1975 and its successor provisions in the Equality Act. For most legal purposes, no-one is treated “as a woman” or “as a man” – they are simply treated without distinction as adults or children. In most situations in which sex-discrimination law permits different treatment of the sexes, there is some good and concrete reason for the distinction which cannot be wafted away by a certificate – and as a result, even a man with a GRC need not be “treated as a woman”. But in a small category of symbolic or administrative respects (chiefly marriage and pensions, both largely superseded since the Gender Recognition Act was passed), a GRC confers on a man the right to be treated by the law as a woman, and vice versa. Those, and very little else, are the “legal purposes” referred to by Choudhury J. 

This takes us back to the question with which I began. What kind of legislation is the GRA? What kind of thing is it aiming to achieve? 

My answer is that it is not chiefly about creating rights, duties or liabilities. If it was about requiring people in general to treat GRC-holders as if they had changed sex, it would look very different – and it would be much longer, weighed down with remedies, specialist tribunals, rule-making powers and enforcement mechanisms. The clue to its true nature is in Choudhury J’s limitation to “legal purposes”. What this really is is a rule about rules: it tells us that in those (rare) situations in which the law attaches consequences to whether you are male or female, a GRC requires you to be deemed to have changed sex unless the contrary is stated. In other words, it governs how other laws are to be understood. 

At its core, the GRA is a rather fancy kind of interpretation act: an act that tells you (in general) that when other acts attach consequences to sex, some people are to be deemed to have changed sex. This puts the proposed Sex Matters amendment of the Equality Act into perspective. The GRA says “unless otherwise stated, other acts are to be interpreted so as to deem GRC-holders’ sex to have changed” (and provides a mechanism in section 23 for the government to state otherwise); the Sex Matters amendment would simply state otherwise in relation to the Equality Act.

A GRC really doesn’t do very much. It certainly doesn’t confer the general right claimed by HHJ Tayler in Forstater to be treated by other people as if you have changed sex. 

The post What does a GRC do? appeared first on Sex Matters.

Now the Scottish Government is proposing to reform the legislation in a way that risks harming the employment prospects of increasing numbers of young people identifying as transgender.

Under Section 22 of the GRA, anyone who might come into contact with a trans person’s information in an official capacity – employers, potential employers, service providers, NHS workers, local-government staff, police officers, charity workers, the tax and benefits office, their children’s school — is banned on threat of criminal penalties from revealing information that “concerns the person’s gender before it becomes the acquired gender” (i.e. their biological sex and associated identity). 

The trouble is that it is extraordinarily hard to hide the fact of your sex, which becomes written on your face and frame once your body starts to produce enthusiastic quantities of testosterone or oestrogen at puberty. While some “female-to-male” transitioners become hard to spot, very few “male-to-female” do. Broad shoulders and a deep voice, a prominent brow and well-developed chin, a male gait, an Adam’s apple, large feet and hands, male-pattern baldness and beard growth all require heroic efforts to hide or modify, rarely fully successfully.

Moreover, the very idea that being trans is a shameful secret, and that trans people should try to hide the truth, seems increasingly outdated in a world which celebrates “Trans Day of Visibility”.

Scotland is proposing to extend official concealment for this secret, so shameful that telling the truth becomes a criminal act, to a much greater number of people. 

Sex Matters has raised the issue about how identity secrecy may be exploited by bad actors seeking to erase their past. Many have raised concerns about what this law would mean for service providers trying to provide separate-sex services. But perhaps the most immediate impact would be to damage the employment prospects of people who identify as transgender. 

Unemployment levels are high among people who identify as transgender. A survey of UK employers found that one in three employers admit they are “less likely” to hire a transgender person.

Only 4% of businesses said their workplace culture was diverse enough for transgender people to fit in, and customer-facing sectors of retail, IT and leisure and hospitality were the least likely to say they were willing to hire a transgender person.

The UK government’s national LGBT survey found that trans people were less likely to have had a paid job in the 12 months preceding the survey than the UK general workforce (65% of transwomen and 57% of transmen had one). In Ireland, where self-ID has been brought in, more than 50% of trans people are unemployed, and those that are tend to be in poorly paid roles. 

The only sector where trans people are more likely to be employed is “sex work”, the euphemistic term for prostitution. Trans people are over 1,000 times as common among sex workers as in the general population. 

Scotland’s proposed legislation will offer sex secrecy to a much wider group of people, including children from age 16, without any doctor’s assessment or medical treatment, and with only a six-month waiting period between deciding to make the legal change and gaining lifelong legal secrecy about their sex. This will undoubtedly mean that this pool of people includes many more who are clearly recognisable as their sex, and who have not worked through with a mental-health professional whether their expectations for social acceptance by others are realistic. 

People with this legal status present a risk to employers. Employers will be required to say to customers, clients, students and other employees that they do not know what biological sex their employee is, only what their legal sex is. And they will be forbidden from explaining the reason why (since the information that the person has a Gender Recognition Certificate is in itself protected). They will need to have systems to keep any information that reveals a person’s biological sex under tight security (even though it may be publicly obvious) or else risk putting those who access it as part of their job at risk of criminal prosecution. 

Although some hope this will further the cause of trans inclusion, it is more likely to cause employers to find reason to avoid employing people who have, or who might avail themselves of, this extraordinary legal status and the risks it creates.

The medical criteria put in place around the GRA 2004 were designed to protect the specific group of people that Act was intended to help. By removing these safeguards and expanding the scope of the Act, the Scottish government will harm a much wider group, including increasing numbers of young people, by imposing unworkable and unreasonable conditions on their employment and their routes into adult life. 

The post Sex self-ID in Scotland and transgender unemployment appeared first on Sex Matters.