Equality Act Case Study

December 16th, 2022

Scotland’s Highest Court Has Ruled That Trans Women Are Women for the Purpose of The Equality Act

The Court of Session in Scotland has ruled that transgender women are legitimately within the scope of a piece of legislation aimed at increasing the number of women on public boards.   

When it was introduced in 2018, The Gender Representation on Public Boards Act (the Act)  stipulated that, for the purpose of the Act, the term ‘woman’ would include those born as men but who intended to go through, or had gone through, the gender reassignment process.

As a consequence, a campaign group called For Women Scotland (FWS) brought a judicial review claim, seeking to challenge the Act on the grounds that the expansion of the term ‘woman’ was not consistent with the definitions as set out in the Equality Act 2010 (the EqA 2010). This judicial review claim was initially unsuccessful but then succeeded on appeal in early 2022. 

In response, the Scottish government amended the guidance notes to the Act, to include a line stating that the Act will apply to both women as defined by the EqA 2020 and people with a Gender Recognition Certificate (GRC) as defined by the Gender Recognition Act 2004 (GRA 2004) which states that ‘where a full GRC has been issued to a person that their acquired gender is female, the person’s sex is of a woman’. 

Accordingly, FWS sought to bring a second judicial review claim on the grounds that the definition of ‘woman’ in Equality Act 2010 is to be taken as a reference to ‘biological woman’’ and that any attempt to conflate that concept with that of a person who has an acquired gender of female is impermissible. 

FWS’s claim was dismissed by Lady Haldane in a judgment published on 13 December 2022. Lady Haldane stated that the meaning of the word ‘sex’ for the purpose of the EqA 2010 ‘is not limited to biological or birth sex, but includes those in possession of a GRC’.  

It is a significant ruling that, on the face of it, appears to mean that a GRC constitutes a change of sex for the purpose of the EqA 2010. Lady Haldane did caveat her judgment by remarking that it does not give rise to a conflict with other legislation where it is clear that sex means biological sex, for example the Forensic Medical Services Act 2021 which gives sexual assault victims a legal right to make a choice in terms of the gender of their medical examiner. 

The judgment comes just a week before the Scottish government’s Gender Recognition Reform Bill is due for its final reading. The Bill would make it easier for people to legally change their gender in that it would decrease the minimum age at which a person could make an application for a GRC (from 18 to 16) and would also decrease the amount of time a person must have lived in their acquired gender before applying for a GRC from two years to three months with a three month reflection period. 

This blog was written by Jack Dooley, Trainee Solicitor at didlaw. 

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