At the time of writing one of the most significant equality related court cases we have seen in recent times should be starting in the Court of Session in Edinburgh. It is the challenge by the Scottish Ministers to the UK Governments use of a section 35 Order under the Scotland Act 1998 to prevent the Gender Recognition Reform Bill receiving Royal Assent and becoming law. This will be followed in just a few weeks' time by another significant case dealing with equality issues - this one relating to the definition "woman" used in the statutory guidance produced by the Scottish Ministers on the Gender Representation on Public Boards (Scotland) Act 2018.
Gender Recognition Reform (Scotland) Bill
In December last year the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill (the "Bill"). The Bill proposed wide-ranging reforms to the process for obtaining a Gender Recognition Certificate in Scotland, which is currently governed by the Gender Recognition Act 2004. The Bill's passage through Parliament was contentious, with strongly held views on both sides, but was passed by 86 of 129 MSPs. The main changes introduced by the Bill include:-
- Reducing the minimum age of applicants from 18 to 16 years;
- Reducing the requirement to have lived in the acquired gender for 2 years to 3 months (6 months for 16 and 17 year olds); and
- Removing the requirement for a medical diagnosis of gender dysphoria.
The gender recognition certificate provided under the Bill would have effect in other parts of the UK only where specific provision has been made to that effect by the respective governments.
However, in January 2023 the UK Government made use of an Order under section 35 of the Scotland Act 1998 that prevents the Presiding Officer forwarding the Bill for Royal Assent, thus preventing it from becoming law. This is the first time in the 25 years of the Scottish Parliament that this option has been used. A section 35 Order can be made where the Secretary of State for Scotland has reasonable grounds to believe that a Bill from the Scottish Parliament contains provisions that makes modifications to and would have an adverse impact on the operation of the law as it applies to reserved matters. The Order indicates that the Secretary of State for Scotland considers that the Bill creates two distinct and parallel regimes across the UK, increases the potential for fraudulent applications with a consequential impact on the safety of women, and impacts on the operation of the Equality Act 2010 in relation to matters including the provision of single sex services, clubs and associations and schools as the effect of obtaining a gender recognition certificate is that the person must be treated in accordance with their acquired sex.
In response, the Scottish Ministers launched a petition for judicial review of the UK Government's use of the section 35 Order, and it is that which is currently being considered in the Court of Session. It is important to keep in mind that the court is not taking a view on the rights and wrongs of the changes brought into place by the Bill. Rather it is considering whether the UK Government has properly used a section 35 Order - very much a standalone legal question and not one adjudging on transgender rights.
Although the hearing itself is set to last only three days (19 to 21 September), we can expect whichever party loses to appeal.This issue is therefore unlikely to be concluded upon until matters get to the Supreme Court. As there is an appeal stage to the Inner House of the Court of Session prior to that, it will be well into next year at the earliest before we will know whether the Bill will ever become law, at least in its present form.
Definition of "woman"
The separate judicial review relating to the definition of "woman" is brought by For Women Scotland Limited ("FWS"). It also has a fairly lengthy history. The issue arises in connection with guidance published by the Scottish Ministers on the Gender Representation on Public Boards (Scotland) Act 2018 (the "2018 Act"). The 2018 Act seeks to address under-representation of women on boards of Scottish public authorities.
Originally "woman" was defined in the 2018 Act as including those with the characteristic of "gender reassignment" and living as a woman, whether or not they had a gender recognition certificate. In an earlier court case heard in the Inner House of the Court of Session that provision had been struck down.The Court held that definition combined two separate and distinct protected characteristics (those of gender reassignment and sex), essentially creating a new protected characteristic of, in this case, "transgender woman". In doing so the Scottish Parliament were in effect amending the terms of the Equality Act 2010, something that was not within their legislative competence to do.
In light of that judgment the Scottish Ministers issued revised guidance on the 2018 Act. This time "woman" was defined as including those who had acquired a gender recognition certificate. FWS challenged that revised guidance as seeking to introduce a new category of "legal sex" which is not a protected characteristic and, as previously, by introducing a new protected characteristic the Scottish Government were once again acting out with their legislative competence. However, on this occasion FWS were unsuccessful. The Court held that "sex" could have a variable meaning depending on context, but that under the Equality Act 2010 it included those in possession of a gender recognition certificate.
The practical effect of this judgment is that a trans woman with a gender recognition certificate would be treated under the Equality Act 2010 as a woman, but a trans woman without a gender recognition certificate would be treated as a man.
FWS is appealing against that judgment. They argue that the effect of the judgment is that wherever "sex" is referred to in the Equality Act 2010 it is replaced by the term "legal sex". According to FWS, this means those born as women are no longer protected under the Equality Act 2010 and they argue that this has wide ranging implications, including for employers and service providers, in relation to the provision of single sex services.
Unlike the case on the Gender Recognition Reform Bill, this case does deal more with the fundamentals of who is protected and in what way by equality legislation. It is undoubtedly an interesting time to be involved in equality law, and for those who wish to do so both cases can be watched via livestream here.
