Judicial Review 2

Following our successful appeal on the redefinition of ‘woman’ in the Gender Representation on Public Boards (Scotland) Act 2018, the Inner House declared on 22 March 2022 that:

  • the definition of ‘woman’ in section 2 of the Act is outside the legislative competence of the Scottish Parliament in that it relates to reserved matters and is accordingly not law in terms of section 29(1) and (2)(b) of the Scotland Act 1998; and
  • paragraphs 2.12 to 2.15 (together with the supporting footnotes) should be removed from the statutory guidance, as published on 2 June 2020.

While it will take some time for the legislation to be amended in line with the Court’s decision, the Scottish Ministers published revised statutory guidance on 19 April 2022. Paragraphs 2.13 to 2.15 have been removed and paragraph 2.12 has been replaced with the following:

The meaning of “woman” for the purposes of the Act
2.12 There is no definition of “woman” set out in the Act with effect from 19 April 2022 following decisions of the Court of 18 February and 22 March 2022. Therefore “woman” in the Act has the meaning under section 11 and section 212(1) of the Equality Act 2010. In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man. (emphasis added)

Gender Representation on Public Boards (Scotland) Act 2018 – Statutory Guidance

It is our position that the amended guidance is not compliant with the Court order due to the addition of the reference to the Gender Recognition Act. Footnote 3 for paragraph 2.13 in the original guidance has been reinserted into the main text of the revised guidance.

The Court’s judgment was clear that the Equality Act set out sex and gender reassignment as two separate protected characteristics, where:

  • Sex refers to women or men where ‘woman’ means a female of any age and ‘man’ a male of any age.
  • Gender reassignment refers to transsexual persons who are proposing to undergo, are undergoing, or who have undergone a process (or part of a process) for the purpose of reassigning the person’s sex  by changing physiological or other attributes of sex. The reassignment is the common factor of the protected characteristic, not the person’s sex and covers those with a Gender Recognition Certificate (GRC), as well as those without.

The Court ruled that the definition of ‘woman’ in the Equality Act is the only definition which the Scottish Parliament could have legislated for in passing the 2018 Act, and said “Provisions in favour of women, in this context, by definition exclude those who are biologically male” and “By incorporating those transsexuals living as women into the definition of woman, the 2018 Act conflates and confuses two separate and distinct protected characteristics” which is not permitted.

In their revised guidance the Scottish Government are still confusing the protected characteristics and are trying to redefine ‘woman’ yet again, this time by incorporating the subgroup of male transsexuals living as women and who have obtained a GRC (and by logical extension, excluding the corresponding group of females who do not live as women and have obtained a GRC).

We wrote to the Scottish Government asking for the unlawful guidance at paragraph 2.12 to be removed. They declined to do so, stating that they consider the term ‘woman’ “includes those born men/male who have acquired a full gender recognition certificate”. They also managed to invoke three different types of ‘sex’ in their statement: “a trans woman with a full GRC has changed their legal sex from their biological sex (male) to their acquired sex (female). Therefore that trans woman has the protected characteristic under the 2010 Act of their acquired sex (female).”

Our solicitors advised there is no simple way to enforce the terms of the Court Order now that the case with the Inner House is closed, and correspondence with the Court confirmed that the only way to challenge the still unlawful guidance is to initiate a fresh judicial review.

We have given the matter a great deal of thought as another judicial review is quite a considerable undertaking, particularly since we are still awaiting financial settlement from the first one. However, we consider it imperative to protect the word ‘woman’ in law as all our legal rights and protections flow from its definition. The analysis by the Inner House confirms that ‘sex’ in the Equality Act is a biological term and so we have decided that we must challenge the Scottish Government’s unlawful interpretation.

A petition for a judicial review was lodged with the Court on 15 July 2022. Once again we will be represented by Sindi Mules at Balfour + Manson solicitors and Aidan O’Neill QC.

The petition states that:

  • The Scottish Ministers’ revised statutory Guidance of 19 April 2022 misrepresents the substance of the judgment of, is incompatible with the legal analysis in, and does not conform to the interlocutors of 18 February and 22 March 2022 pronounced by, the Second Division in For Women Scotland Ltd. v. Lord Advocate [2022] CSIH 4, 2022 SC 150. It is therefore unlawful.
  • The revised guidance restores a reference to “trans woman” (a biological man with the protected characteristic of gender reassignment) from footnote 3 to paragraph 2.13 of the original guidance, which was ordered by the Court to be reduced. The guidance now wrongly advises those who implement the provisions of the 2018 Act that a biological man with the protected characteristic of gender reassignment who has obtained a full gender recognition certificate (GRC) can claim the benefit of the workplace related positive action measures, despite the judgment of the Second Division explaining that the 2018 Act is for and only for those with the biologically defined protected characteristic of being women.
  • The Scottish Ministers now wrongly assert that the effect of the judgment of the Second Division is that the 2018 Act’s gender representation objective covers not only “women” as defined in Sections 11 and 212(1) of the Equality Act 2010 (EA 2010), but, in addition, it extends to those “men” as defined in Sections 11 and 212(1) EA 2010 who have obtained a full GRC under the Gender Recognition Act 2004 (GRA 2004). And the necessary logic is that a born woman with a GRC is therefore excluded from the coverage of the gender representation objective and the positive action measures otherwise afforded to women under the 2018 Act.
  • The revised guidance once more confuses a sub-class of individuals who have the EA 2010 protected category of “gender reassignment” – namely those “born men” who have chosen to apply for and who have obtained a full GRC under the GRA 2004 – with the EA 2010 protected category of “woman” which, as the Second Division ruled and recognised and affirmed in its judgment, is and is only a(n immutable) “biological” category. The claims by the Scottish Ministers are therefore wholly incompatible with the judgment of the Second Division.
  • In addition, the Scottish Ministers’ claim in their revised statutory guidance is predicated on an erroneous understanding of the proper relationship between the GRA 2004 and the subsequent EA 2010.
  • In giving priority to their reading of the terms of Section 9(1) GRA 2004 over and above the clear analytical framework for distinct protected characteristics set out in the EA 2010 the Scottish Ministers have committed a clear error in law. First, the provisions of the earlier GRA 2004 give way to the later EA 2010 if the earlier statute is incompatible with the later one. Secondly, as the EA 2010 is the specialist law governing the lawfulness of workplace positive action measures for women such as those put in place by the 2018 Act, priority is given to the provisions of the EA 2010 over the GRA 2004 in the event of any conflict between their provisions.
  • Further, the Scottish Ministers’ (implicit) claim that priority is to be afforded to the general provision of an earlier statute (section 9(1) GRA 2004) over the definitive codifying specific provisions of a subsequent statute, the EA 2010, is wholly incompatible with the plain terms of Section 9(3) GRA 2004 which provides that “Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation”.
  • It was the decision of the Second Division that the CJEU, ECtHR and UKHL case law do not vouch the proposition that sex and gender reassignment are to be conflated or combined, particularly in light of the subsequent EA 2010 which maintained the distinct categories of protected characteristics. The fact that the EA 2010 codifies and makes extensive and distinct provision for protection against discrimination specifically for those claiming “gender reassignment” allows the concept of “sex” as used in the EA 2010 to retain the common sense ordinary language approach which is embodied in the common law to the effect that “sex” is only and always in the EA 2010 a biological category, a position which is not modified in any way by any provisions of the GRA 2004.
  • By letter dated 1 June 2022 the Scottish Ministers advised the petitioner as follows:

    This EHRC Guidance confirms that a trans woman with a full GRC has changed their “legal sex” (sic) from their “biological sex” (male) to their “acquired sex” (female). Therefore that trans woman has the protected characteristic under the 2010 Act of their “acquired sex” (female). In terms of the 2018 Act this means that a trans woman with a full GRC must be treated as a woman, which is the position set out in the sentence in the Guidance on the 2018 Act that your clients disagree with.

    The Scottish Ministers clear error in law in this defence of their revised statutory guidance is that there is no such category as “legal sex” as distinct from a person’s actual (“biological”) sex”. The term “legal sex” has never been used, let alone defined, in any statutory or regulatory context in the UK. Instead all that there is is “sex” which is defined in the EA 2010, as the Second Division’s judgment confirms, solely as a biological category. But the GRA 2004 cannot and does not alter biology; and a final certificate issued under the GRA 2004 cannot and does not mean that a person’s protected characteristic of “sex” has been changed whether for the purposes of the EA 2010 generally, and/or for the specific workplace positive action measures for women, such as those contained in the 2018 Act. The Scottish Ministers’ error in law in this regard has vitiated the statutory guidance issued by them such as to render it unlawful, if not in whole then at least in part.