Gender, trans gender, and equality

The Inner House of the Court of Session in Edinburgh recently considered a question of statutory interpretation on the definition of a woman under the Equality Act 2010. 

Background

Under the Equality Act 2010, the protected characteristic of ‘sex’ in the UK means a man or a woman. 

In Scotland, the Gender Recognition Act 2004 allows a trans person to obtain a Gender Recognition Certificate (GRC) as a legal recognition of their acquired gender. Further, the Gender Representation on Public Boards (Scotland) Act 2018 introduced a “gender representation requirement” for non-executive board positions with “a woman” being defined as:

“a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”.

The Scottish Government issued guidance that a person with a GRC was “for all purposes” their acquired gender. This was challenged in the courts by a campaign group, For Women Scotland, obtaining a declaration that the definition of “woman” in the legislation and associated guidance was of no effect.  

The guidance was updated. For Women Scotland then challenged the updated guidance.   

Judgment

Delivering the opinion of the Court, the Lord Justice Clerk, Lady Dorrian, said:

“A person with a [Gender Recognition Certificate] in their acquired gender possesses the protected characteristic of gender for the purposes of section 9 [of the Equality Act 2010] … individuals without a GRC… retain the sex in which they were born… A person with a GRC in the female gender comes within the definition of “woman” for the purposes of section 11 of the [Equality Act], and the guidance issued by the Scottish Government in respect of the 2018 Gender Representation on Public Boards (Scotland)] Act is lawful.”

The motion was dismissed. 

Comment

The interpretation placed on the Equality Act by the Court of Session may, ultimately, be subject to scrutiny by the UK Supreme Court in London. In a statement, For Woman Scotland said:

“Naturally, we are hugely disappointed in today’s judgment, which has ruled that women’s protections under law may – in some cases – include men who have obtained a GRC.

We are obviously still analysing the decision and will be speaking to our legal team in due course to consider the possibility of a further challenge.”

Meanwhile, the Equality and Human Rights Commission has highlighted a need to clarify the definition of “sex” under the Equality Act. 

We’ll keep you posted…

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