Last year we brought a judicial review on changes the Scottish Government had made to the statutory guidance for the Gender Representation on Public Boards Act which meant males who have a gender recognition certificate (GRC) are included in the 50% target for female representation.
In what has become known as “the Haldane decision”, Lady Haldane ruled that “sex” in the Equality Act 2010 refers to a person’s sex as recognised in law, and not biological sex.
This interpretation means that wherever “sex” is referred to in the Equality Act it can be replaced with “legal sex” and the definition of “woman” means biological females (except those who hold a Gender Recognition Certificate stating they are legally men) plus biological males who hold a GRC stating they are legally women.
This is hugely problematic for women as it means we, as a biological sex class, are not a protected characteristic in equality law. It goes far beyond the Public Boards Act and has profound implications in the UK on equal pay claims, women-only jobs and programmes, pregnancy and maternity protection, what it means to be homosexual, and the ability to even have single biological sex spaces such as hospital wards, prisons, changing rooms and sports.
We think Lady Haldane has erred in law and are now appealing the decision. The Equality Act doesn’t make sense unless sex retains its common law, common sense meaning as referring to biology. The decision simply must be challenged and overturned.
We also believe Lady Haldane did not properly take into account the decision of our previous judicial review where a higher court ruled that the protected characteristics of “sex” and “gender reassignment” must be treated as distinct and separate, and that where provision for women is made, by definition (in the Equality Act) it excludes biological males.
Our solicitor has lodged our grounds of appeal with the court and the substantive hearing is expected by late summer.
We would really appreciate your support!
A CrowdJustice fundraiser has been set up to help pay for the legal costs – please donate if you can, and share the page far and wide.
Please also see our briefing for the 12th June Westminster Hall debate on the definition of “sex” in the Equality Act.