Inner House rejects challenge to revised statutory guidance on public board gender representation legislation

About this case:

• Citation:
  [2023] CSIH 37
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

In a previous petition, For Women Scotland Ltd successfully had the original guidance reduced, causing the Scottish Ministers to issue revised guidance including reference to the holder of a full gender recognition certificate (GRC). The reclaimers maintained that the new guidance still impinged upon a reserved matter.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Malcolm and Lord Pentland. O’Neill KC appeared for the petitioner and reclaimer and Crawford KC for the respondents.

Protected characteristics

Under Section 1 of the 2018 Act, a gender representation objective was introduced for public boards in Scotland with the aim that 50 per cent of non-executive members of such boards should be women. The Act defined “woman” as including a person with the protected characteristic of gender reassignment if they were living as a woman and had or intended to undergo a process for the purpose of becoming female.

Following a challenge by the reclaimer in 2022, the Inner House concluded that this proposed definition impinged upon a reserved matter. The court reduced both the definition of “woman”, and the associated statutory guidance. The Scottish Ministers thereafter issued revised guidance in which it was stated that the Act itself did not define “woman” and therefore that word had the meaning contained in section 11 of the Equality Act 2010, with an addition in terms of the Gender Recognition Act 2004.

It was asserted by the reclaimer that the revised guidance fell into the same error as the previous guidance by conflating different protected characteristics. The Gender Recognition Act had been enacted for the limited purpose of allowing marriage, which was now symbolic due to the introduction of equal marriage legislation, and in any event was impliedly repealed by the Equality Act.

Counsel for the reclaimer submitted that it was necessary to consider the context to the relevant legislation. Interpreting “sex” in the way contended for by the respondents would render many provisions in the EA absurd and unworkable. For the respondents it was submitted that there was no question of implied repeal. There was nothing extraordinary or irrational about a trans woman with a GRC being able to benefit from protections under the 2004 Act.

Far-reaching enactment

Lady Dorrian, delivering the opinion of the court, observed generally: “This is an area on which individuals and organisations hold firm, even entrenched views, where there is intense public debate. At its heart are matters of social policy which are best addressed by parliaments.”

She continued: “The issue which faces this court is not one of policy, rather it is one of statutory construction. It is important that in doing so the court should confine itself to determining the issue before it, and not seek to address wider issues of policy or social engineering.”

Looking at the Lord Ordinary’s analysis of the 2004 Act, she said: “It is axiomatic that Parliament does not legislate in a vacuum and must be taken to be aware of legislation already on the statute book. When the EA was passed in 2010 it must be assumed that Parliament was fully cognisant of the purpose, terms and effect of the GRA. Lest there be any doubt about that, it is clear that Parliament had the GRA in mind since it repealed certain of its provisions and elsewhere made specific reference to that enactment.”

She went on to say: “The 2004 GRA was thus a measure intended not merely, as the reclaimer submitted, to put beyond doubt the intention to disapply, for a very limited class of same sex couples one of whom had gender reassignment, the requirement that for a valid marriage one party had to be male and the other female. Nor is the statute’s continuing value merely symbolic (whatever the reclaimer meant by that term). The GRA was intended to be a far-reaching enactment, which the Lord Ordinary correctly noted.”

Addressing whether there was conflation of protected characteristics, Lady Dorrian said: “The Guidance does not conflate two separate protected characteristics. A person with a GRC in their acquired gender possesses the protected characteristic of gender reassignment for the purposes of section 7 EA. Separately, for the purposes of section 11 they also possess the protected characteristic of sex according to the terms of their GRC.”

She concluded: “For the purposes of section 11, individuals without a GRC, whether they have the protected characteristic of gender reassignment or not, retain the sex in which they were born. No conflation of the protected characteristics is involved. A person with a GRC in the female gender comes within the definition of ‘woman’ for the purposes of section 11 of the EA, and the guidance issued in respect of the 2018 Act is lawful.”

The reclaiming motion was therefore refused.