Sex Matters has been given permission, as a human-rights organisation, to intervene in the For Women Scotland case being heard by the Court of Session Inner House in Edinburgh on Wednesday 4th October.
Our submission will urge the court to consider whether Lady Haldane’s interpretation of the meaning of sex in the Equality Act is consistent with the European Convention on Human Rights.
The case concerns whether it is lawful for the Scottish Government to tell public bodies to include men who have transitioned by obtaining a gender-recognition certificate (GRC) when considering whether the legal quota for female board members has been met as part of the Gender Representation on Public Boards (Scotland) Act 2018. In December 2022, Lady Haldane ruled that the Scottish Government’s approach was lawful, saying that the definition of woman in the Equality 2010 Act includes biologically male people in possession of a GRC, recognising their “acquired gender” as female.
Sex Matter’s intervention supports For Women Scotland’s appeal against this judgment. It argues that it is wrong in law because it did not consider the impact on fundamental human rights protected by the European Convention on Rights, as legally required by the Human Rights Act (1998).
Our legal argument is that changing the definition of “man” and “woman” in the Equality Act to include members of the opposite sex undermines protections under the European Convention, including Article 3 which covers inhuman or degrading treatment. The European Court of Human Rights has already ruled that being searched or intimately examined by a member of the opposite sex can fall foul of this provision. Blurring sex categories also infringes on Articles 9, 10, and 11: freedom of belief, freedom of speech and freedom of association.
Our legal submission is supported by our research on single-sex services, which has been made available to the court: this found that many previously women-only groups and services are coming under pressure to include men who identify as women.
We are also continuing to call on the government to resolve the issue through legislation rather than leaving it to courts, which may not consider the impact on wider human rights.
Sex Matters is represented by David Welsh of Axiom Advocates and Rosie Walker, Head of Litigation & Dispute Resolution, Gilson Gray LLP. We will publish our intervention on Wednesday 4th October.
Read the press release
(added on Wednesday 4th October 2023)