Judicial Review 2 – Substantive Hearing

Earlier this year we won a judicial review at appeal which ruled that the definition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 was unlawful as it impinged on reserved matters. The decision stated the Scottish Government can only legislate using the definition of woman in the Equality Act 2010, and that by incorporating those transsexuals living as women into the definition of woman the 2018 Act conflates and confuses the two separate protected characteristics of “sex” and “gender reassignment”, which is not permitted. Where provisions are made in favour of women, by definition, they exclude those who are biologically male.

The court ordered the Scottish Government to remove the unlawful definition from the Act and the statutory guidance (including a footnote that referred to Gender Recognition Certificates). Instead, they added the reference to GRCs to the Equality Act definition of woman in the main body of the revised guidance, issued in April 2022. We consider this to be in contempt of the court order and lodged a petition for a further judicial review.
Further details on the case I Reported in the Telegraph and Scottish Legal News

The Scottish Government considers the revised guidance to be in line with the court order as it believes the Equality Act definition of woman includes biological men who possess a GRC. The EHRC supports their claim that the revised guidance is substantially accurate in law. The court set the 9th and 10th of November for the substantive hearing at the Court of Session in Edinburgh.

Concurrently, a Scottish Parliament committee is scrutinising the Gender Recognition Reform Bill, which proposes to remove the requirement for a medical diagnosis and make obtaining a GRC a matter of self-declaration. We wrote to the Committee on 30th August with our concerns that MSPs would be voting blind on the consequences of the Bill as the proper relationship between the GRA and the Equality Act cannot be understood until the court makes a ruling on the judicial review. Unfortunately, this was not given enough significance to even merit any mention in their Stage 1 Report which recommended progression of the Bill to the next stage.

Substantive Hearing
It is important to remember that the ruling of the first judicial review was accepted by the Scottish Government, and so its findings stand as the current position of law. This judicial review is entirely separate and is heard in a lower court in the first instance, so it cannot overturn the first ruling as resolved in the higher court of the Inner House.

The case hinges on whether “sex” in the Equality Act 2010 means biological sex or refers to the concept of “legal sex” whereby a person’s sex is as stated on their birth certificate, and which can be changed via the Gender Recognition Act 2004. By this definition, “woman” means biological females except those who hold a GRC plus biological males who hold a GRC.

All parties are in agreement that a GRC cannot change a person’s biological sex.

The Scottish Government is relying on Section 9(1) of the GRA which says a GRC modifies a person’s sex “for all purposes”. We say that Section 9(3) means the provisions for biological sex in the later enactment of the specialised discrimination law, the Equality Act, take precedent.

There were two interveners who lodged written submissions with the court: Equality Network who supported the Scottish Government’s position, and LGB Alliance who made a submission in support of our position.

Tribunal Tweets did an exemplary job of live tweeting the hearing and their threads are archived here:

In his closing reply our KC, Aidan O’Neill, pointed out that the Scottish Ministers position had shifted from their earlier written submission to the court. Rather than the Section 9(1) meaning of legal sex for all purposes they now seemed to favour the 9(3) provision to retain the biological meaning of sex, both for other pieces of legislation such as the Abortion Act and Surrogacy Act, as well as within parts of the Equality Act such as women’s rights under the pregnancy and maternity protected characteristic.

The Equality Act just contains one definition of ‘sex’, just contains one definition of ‘woman’, just contains one definition of ‘man’. And the structure of the Act supposes that the same concept applies across the Act, so when it uses ‘sex’ in one section, it means the same thing throughout the Act. Similarly when it says ‘woman’ in one particular provision it means it throughout the Act.

But what the Scottish Ministers are now saying is that sometimes ‘woman’ means a biological woman in the Act, but other times, it means it means a biological woman plus a biological man who has a GRC. And that’s what worries me most of all about this massive shift in position, is that it’s a prescription for chaos. The Scottish Ministers have abandoned any coherent principle of statutory interpretation. All they have said is, if it doesn’t make sense to us when faced up with the implications of what they’re saying, then with one leap, oh, it’s a Section 9(3) understanding of sex, so biology still applies here. Now, that is not a position which is based on any kind of statutory interpretation. And that’s what we are about here. The law needs to be interpreted in a coherent and consistent fashion, not just for and among lawyers, but for those who have to apply the law.

Aidan also pointed out the shocking disregard for women affected by the position taken by EHRC and the Scottish Government:

The EHRC said that the effect of getting a GRC is really only of concern to those directly affected by it, for which I understand and say that’s the individuals with gender reassignment who have applied for a GRC. And he said, if I noted correctly, that persons indirectly affected by those changes, they don’t count. So, for example, that would be presumably women seeking refuge in women’s only spaces, or women seeking to be guaranteed the right to be forensically examined only by another woman. They don’t count. Well, that’s a surprising response from a responsible gatekeeper body.

In relation to victims of assault and forensic examination, we got no answer from the Scottish Ministers. Do they say that in relation to Section 9 of that [Victims and Witnesses] Act, which specifies that if a woman has to be forensically examined, she has the right to ask for another woman, of that sex, to examine them? Now, are they saying, oh, that means a 9(3) biological sex reference or are they saying no, that’s a 9(1) biological woman plus a man with a GRC reference? They were so happy to tell us how 9(3) applied with the Abortion Act, and all the rest of it. But they were silent, shockingly silent, when it came to what they were saying were the rights of women subjected to assault who were required to undergo forensic examination as to whether or not they had the right to guarantee that another woman, biological woman, examined them.

as well as those other persons who are directly affected by the changes, those biological women with gender reassignment who may apply for a GRC but who are largely forgotten about:

I come back to the group who always seems to get forgotten about in this matter, that is, namely vulnerable and confused young biological women who may be suffering from various kinds of psychological distress or difficulties, including, as we counted in the Bell against Tavistock decision, ADHD, autism and gender dysphoria. 

Now, those young biological women have been given the message by the EHRC in their approach to say what the effect of a GRC would be, is that it changes your sex, you’ll become a man. You will then, one might say, get a free pass into the hallowed halls of male privilege and entitlement. You will no longer suffer discrimination as a man, of any of the structural discriminations which women face every day. You will no longer be required to seek the protections afforded by positive action measures in the workplace such as the 2018 Act. Not only will you not be required, you won’t even be entitled to be included among the positive action measures, because somehow getting your GRC means that you get all the advantages of being a man and everything about the structural discriminations experienced by women, which in some ways might be part of the distress felt by these young women in the first place, will magically disappear. 

Now, this is a pernicious fantasy. It should not be being pushed by the Scottish Government or by the EHRC as a body which has been set up to, among other things, to protect and promote and improve the rights of women. So, on their reading, the magic of young women, biological women, attaining a GRC means that the structural discrimination experienced by women in a patriarchal society will disappear for them. But as I previously said, that is not a challenge to the structures of discrimination embodied in a patriarchal society which the Equality Act is intended to achieve. To make those challenges, to give those protections to women. It’s a capitulation to those structures of discrimination embodied in a patriarchy. Women can expect, rightly can expect, more from the EHRC and from the Scottish Government.

Aidan O’Neill KC, 10 November 2022

Lady Haldane will now consider the case and we await notification of her judgment, which may take several months.

See also our blog post: Sex, what’s it all about?

Press reports:

The case was covered on Radio Scotland:

and BBC Reporting Scotland:


EDIJester, 11November 2022