The Scottish Government must be made to follow the law

Sex Matters has sent a letter before action to the Scottish Government, putting it on notice that we will take legal action if it continues to delay changing its policies to reflect the Supreme Court judgment when it comes to separate-sex facilities such as toilets and changing rooms. 

A representative of the Scottish Government has said that no policy changes will be made in response to the Supreme Court’s judgment in For Women Scotland v Scottish Ministers until the Equality and Human Rights Commission has issued its revised code of practice for service providers.

This means that the government will continue with unlawful policies, unlawful guidance it has issued to schools and unlawful practice in government buildings.

This is unacceptable. It is bad enough that many organisations are waiting for further official guidance despite the law already being clear, but for the respondent in the definitive court case to ignore the ruling is astonishing. It’s no ordinary respondent, either: the Scottish Government has misled, and continues to mislead, all sorts of organisations across the country. 

Revealed in a stakeholder meeting

The Scottish Government’s position emerged in a stakeholder consultation meeting held by its Equality, Inclusion and Human Rights Directorate on 5th June. Among those attending were representatives of For Women Scotland, Women’s Rights Network Scotland, Scottish Feminist Network and Sex Matters. 

The deputy director explained to the astonished attendees that the directorate had been advised by John Kirkpatrick, the chief executive of the Equality and Human Rights Commission, to wait, and that this approach was the best way to avoid legal action. No mention was made during the meeting of Sandie Peggie’s ongoing legal action against NHS Fife, which, like the rest of NHS Scotland, claims that transwomen — that is, trans-identifying men – are women and therefore permitted to use women’s toilets and changing rooms. This is in line with the Scottish Government’s approach to affirming transgender identities despite the impact on women. 

Letter before action

The law is already clear. For a government to knowingly maintain unlawful policies that create a hostile environment for women and girls is intolerable. Such policies have already done far too much harm. The success of For Women Scotland in the Supreme Court should have been a catalyst for urgent action to withdraw bad guidance and replace it with clear policies and instructions to obey the law. 

We have therefore written to the Scottish Government to say that we will take legal action against it unless it follows the law without delay. Our letter before action details some of the areas in which the Scottish Government is at fault. We point out that it is unlawful not to ensure that single-sex toilets and changing facilities are available for its own staff. We cite bad guidance such as its Trans and Non-Binary Equality and Inclusion Policy and the schools guidance issued in August 2021 entitled Supporting Transgender Pupils in Schools.  We set out how its equivocation on this matter is causing confusion within other public bodies, as seen in NHS Scotland’s draft Gender Transitioning Guide. 

The letter says:

“It is clear that taking no action at the moment is not a lawful option that is available to the Scottish Government. As a bare minimum, the Scottish Government is required – now – to review and amend its practices and policies and guidance to ensure that it is made clear that “single-sex spaces” means single biological sex spaces. A failure to take that step will mean that the Scottish Government is deliberately choosing to act unlawfully.” 

The Scottish Government has been put on notice

The letter gives the Scottish Government 14 days to confirm that it:

• accepts that single-sex toilets and changing facilities must be provided on a biological sex basis (it is also free to provide mixed-sex facilities if it so chooses, but those facilities must be in addition to – and not instead of – the single-sex facilities) 
• will issue a statement to the effect that its various published guidance documents that make reference to single-sex spaces and the access of transgender people to those spaces are to be suspended with immediate effect and replaced with updated and lawful guidance at the earliest possible opportunity 
• will issue a statement to the effect that all Scottish public bodies and service providers are required to take immediate action to provide single-sex facilities on the basis of biological sex, and that it will not be acceptable to continue unlawful practices while updated statutory guidance from the EHRC is awaited.

What happens next?

If we do not receive the assurances requested, we will serve proceedings in the Scottish court. The law must be enforced, and others need to see that is the case.