Home > The Decision of the Court of Session on For Women Scotland vs. Scottish Ministers

Yesterday (1st November 2023), For Women Scotland lost a court case they had taken against the Scottish Government. Below we talk you through what the case was about, and what the decision does (and doesn’t) mean

 

TL;DR

Campaigning organisations are using legal cases as a tactic to try and remove trans people’s rights. And so, while this case does not improve anything for trans people, it means that they have not been successful in making things worse for us.

What was the case about?

In 2018, the Scottish Parliament passed the Gender Representation on Public Boards Act. The law aimed to increase the representation of women on the boards of certain Scottish Public Bodies (like the Accounts Commission or the National Library). It did this by requiring these bodies to appoint a woman when recruiting for board members if:

  • two candidates were equally good as one another, and
  • only one was a woman, and
  • fewer than 50% of their board members were women

When it was first passed, the law contained a definition of ‘woman’ that would have meant that all trans women who had already permanently transitioned to living as a woman, whether they did or didn’t have a Gender Recognition Certificate, would be counted as a woman if there was ever this kind of situation. Taking this approach was supported by every party at Holyrood.

In 2020, For Women Scotland took a case challenging that definition. Initially, they lost the case. But they appealed the decision, and they won on appeal.

They won because the Court found that although the Scottish Parliament has the power to pass laws about positive action measures in a small number of circumstances (in this case, improving the representation of women on certain Scottish boards), it did not have the power to change who counts as a woman in the Equality Act 2010. This is reserved to the UK Parliament, and is the law that deals with issues of discrimination and positive action across the UK.

After For Women Scotland won this case, the Scottish Government produced guidance for the public bodies who needed to follow the law. In this guidance, they said that, when applying the rules to a tie break between two candidates, trans women with gender recognition certificates should be counted as women. For Women Scotland took a case challenging that guidance. They argued a range of things, but the core of their argument was that in the Equality Act 2010, the definition of woman never includes trans women, and is exclusively defined by what they call “biological sex” at birth.

They lost that case last year, but then appealed it. Yesterday, they lost the appeal.

What does this mean for trans people with Gender Recognition Certificates?

The short version is that it doesn’t mean very much! It was always the intention of the Gender Recognition Act 2004 to change a person’s sex in law, including when it came to issues of sex discrimination and positive action.

In fact, the explanatory notes for the Gender Recognition Act 2004 say very clearly that one of the effects of getting a Gender Recognition Certificate is:

“the person’s gender becomes for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes. She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975;”

The Sex Discrimination Act 1975 is (perhaps quite obviously!) the law that dealt with sex discrimination before the Equality Act 2010 was passed. It was always one of the intended purposes of the Gender Recognition Act for trans women to be viewed as women by the law in these kinds of circumstances.

So although nothing has really changed – that’s a very good thing. If For Women Scotland had won the case, they would have successfully removed rights held by trans women and trans men with gender recognition certificates for nearly twenty years.

The Judge herself acknowledged this, saying that to have accepted For Women Scotland’s arguments:

“would undermine the whole purpose and effect of the 2004 [Gender Recognition] Act.”

We’re very pleased that hasn’t happened.

What does this mean for trans people without Gender Recognition Certificates?

The answer is, again, not very much!

It continues to be the case, as it was before, that the sex recorded on your birth certificate determines what sex you are for the purposes of the Equality Act 2010.

However, this does not mean what those who oppose trans people’s equality and human rights say it means.

As we know, trans people are able to transition – change our names, come out to friends, families and colleagues, update all of our other documents like our passports, driving licences and medical records, engage with services and public bodies in line with our gender, access medical interventions if those are right for us – before we apply for, or get, a Gender Recognition Certificate.

Legal gender recognition recognises who we are and how we live our lives – it doesn’t give us permission to be ourselves.

Organisations and individuals who want to reduce the rights of trans people and see us less included in society will deliberately misrepresent what you do or don’t need a GRC for. They want people to believe that you need a GRC to go about your daily life, because they know getting one is currently very difficult. That doesn’t mean it’s true though.

But what about single-sex services?

Again, nothing has changed!

Trans people with and without Gender Recognition Certificates are all treated the same when it comes to single-sex services.

There are two different “routes” through the Equality Act 2010 that show how trans people should be treated by single-sex services: but they lead to identical destinations.

Trans person with a Gender Recognition Certificate

Their sex for the Equality Act 2010 is what is on their updated birth certificate – a trans woman is female, and a trans man is male

In theory, this would mean a single-sex service could not treat a trans person with a GRC less favourably than anyone else of that sex, as this would be direct discrimination because of their protected characteristic of ‘gender reassignment’. This is unlawful.

However, there is an exception in the Equality Act 2010 when it comes to people with the protected characteristic of ‘gender reassignment’ and single-sex services.

Trans people, both those with and without Gender Recognition Certificates, have the protected characteristic of gender reassignment.

The exception says that a single-sex service won’t be found to have discriminated against someone if they treat them less favourably because they are trans, within that service, if their actions are a ‘proportionate means of achieving a legitimate aim’

 

 

 

 

Trans person without a Gender Recognition Certificate

Their sex for the Equality Act 2010 is what is on their original birth certificate – a trans woman is male, and a trans man is female

In theory, this would mean a single-sex service never needs to include them. They are not a member of the sex that the single-sex service is for.

However, the Equality Act 2010 also says that ‘indirect discrimination’ is unlawful.

Indirect discrimination is when a policy that applies the same to everyone results in people who share a protected characteristic being disadvantaged.

Trans people, both those with and without Gender Recognition Certificates, have the protected characteristic of ‘gender reassignment’.

So the rule that a service is single-sex only, when applied to exclude a trans person living in that sex but who does not have a GRC, is potentially indirect discrimination against that person.

However, indirect discrimination is allowed, and services won’t be found to have discriminated against someone, if their actions are a ‘proportionate means of achieving a legitimate aim’

 

 

In summary therefore, a single-sex service can exclude, or treat differently, a trans person living in that sex, only if doing so is a proportionate means of achieving a legitimate aim, and that is the case whether or not the person has a GRC.

Legally speaking, “proportionate” means that the different treatment must be the minimum needed to achieve the aim, and “legitimate” means the aim must be genuine and cannot itself be discrimination, for example “we want to exclude trans people”.

In 2021, an organisation campaigning against trans people’s existing equality and human rights took a case trying to argue that single-sex services should always be able to exclude trans people without gender recognition certificates.

They lost the case. In fact, they were not given permission for the case to be heard in full, as the Judge said their case was ‘unarguable’ and based on ‘an obvious absurdity’.

TL;DR

 

Campaigning organisations are using legal cases as a tactic to try and remove trans people’s rights. And so, while this case does not improve anything for trans people, it means that they have not been successful in making things worse for us.

Link to yesterday's Decision

Appeal decision about the definition of ‘woman’ in guidance produced about the Gender Representation of Public Boards Act (lost by For Women Scotland): https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2023csih371cb71fe0-ea75-4892-b423-4751efe6e075.pdf

Links to previous/other relevant decisions

Original decision about the definition of ‘woman’ in the Gender Representation of Public Boards Act (lost by For Women Scotland): https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021csoh031.pdf

Appeal decision about the definition of ‘woman’ in the Gender Representation on Public Boards Act (won by For Women Scotland): https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csih4.pdf

Original decision about the definition of ‘woman’ in guidance produced about the Gender Representation of Public Boards Act (lost by For Women Scotland): https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csoh90.pdf?sfvrsn=8eee302c_1

Decision not to grant permission for case arguing that trans people without Gender Recognition Certificates can always be excluded by single-sex services (lost by Authentic Equity Alliance): https://oldsquare.co.uk/wp-content/uploads/2021/11/R-on-application-of-AEA-v-EHRC-2021-EWHC-1623-Admin.pdf

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