Scottish court rules that sex is about paperwork, not biology

This is the first in our series of posts about the Haldane judgment.

A judgment handed down on 13th December in the Scottish court of session highlights the importance of a Sex Matters campaign to persuade the UK government to clarify the meaning of sex in the Equality Act 2010. 

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The ruling concerns the meaning of “woman” in a Scottish law aimed at increasing the representation of women on public boards. Lady Haldane, one of Scotland’s most senior judges, rejected a challenge taken by feminist campaign group For Women Scotland. That challenge sought to force the Scottish government to change its plans to include holders of gender recognition certificates (GRCs) stating their “acquired gender” as female in its definition of “woman”. The judgment, in effect, considers the meaning of the words man and woman across the whole of the Equality Act. 

Lady Haldane ruled that:

“the founding principle [of the Gender Recognition Act] is a broad one, that the acquired gender becomes the person’s sex ‘for all purposes’ subject to any other enactments, or the statutory exceptions listed.” [47]

Her judgment states:

“In the first place, the word ‘biological’ does not appear in the definition. It would have been entirely open to the drafters of the legislation to put the matter beyond doubt by including that adjective or descriptor, but they did not.” [49] 

She concludes 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.” [53]

The decision has profound implications for the impact of separate legislation currently being debated in the Scottish Parliament, which would make it much easier to get a gender-recognition certificate in Scotland than in the rest of the UK.

Under SNP First Minister Nicola Sturgeon, the Scottish government is planning to remove almost all safeguards from the process of getting a GRC, and to open up the process to a completely new group of people. At present, applicants for a GRC must have a diagnosis of gender dysphoria, supporting letters from two doctors and two years of paperwork supporting the claim that they are “living as the opposite gender”.

The Scottish Government’s Gender Recognition Reform (GRR) bill, which has faced stiff opposition from the Scottish Conservative Party and led to the biggest SNP rebellion of Sturgeon’s time as first minister, would remove the need for a diagnosis, reduce the waiting time to three months and allow 16- and 17-year-olds to receive GRCs. Attempts at amendments to protect women’s rights from the risks posed by a potentially far larger group of men gaining the legal status of women have failed, notwithstanding that there is at present no mechanism in the bill by which – for example – those who cross-dress for purely recreational or erotic purposes would be excluded from eligibility for a GRC. A Scottish Parliament research paper published on 10th March 2022 anticipates a tenfold increase in applications. 

A vote on the GRR bill is expected by next week, and it is nearly certain to pass. 

The judgment, although a setback for campaigners for women’s rights, has the major advantage that it will force the Scottish government to face up to the inconsistency of its claims about the impact of holding a GRC. Until now it has made different claims according to what suits it at any given moment. In Parliament, when rejecting amendments to the GRR bill, it has claimed that the Scottish GRCs which will be made available almost on demand will confer no new legal rights on their holders. In court, defending its definition of “woman” for the purposes of gender quotas, it has claimed that a GRC changes someone’s sex “for all purposes” and in particular for the Equality Act. 

The judgment underlines the importance of having this question clearly and finally decided – for the whole of the UK – by Parliament. 

Lady Haldane states that “well-established principles of statutory interpretation include the presumption that the drafters of the legislation, highly skilled individuals, do not insert or omit words or use language carelessly.” And yet at the time when the Gender Recognition Act was passed the impact on women’s rights was not discussed at all.

It is time for parliamentarians in Westminster to take up the pen once more and consider whether they really want the law to say that a person’s sex depends solely on what it says on a piece of paper, without any reference to biology? 

We encourage people to sign our petition calling on the government to clarify that in the Equality Act “sex” means what appears on a person’s original birth certificate, not modified by a gender-recognition certificate. The petition currently has more than 40,000 supporting signatures; when it reaches 100,000 it will be considered for a parliamentary debate in Westminster.