Lord Ordinary refuses challenge to revised guidance to definition of ‘woman’ in public boards legislation

The guidance was altered after a ruling from the Second Division of the Inner House on a previous petition raised by petitioner For Women Scotland Ltd, in which the court held that provisions of the Act were outwith the legislative competence of the Scottish Parliament. However, the organisation argued that the revised guidance did not align with the earlier decision and was thus unlawful.

The petition was considered by Lady Haldane in the Outer House of the Court of Session. Aidan O’Neill KC appeared for the petitioner, Ruth Crawford KC for the respondents and the Lord Advocate as an interested party, and Jonathan Mitchell KC for the fifth interested party, the Equality and Human Rights Commission.

Conform to earlier decision

In the petitioner’s earlier proceedings, the Inner House held that the proposed definition of “woman” contained within the 2018 Act, which included transgender women, purported to expand the definition of protected characteristics within the Equality Act 2010 and thus impinged on a reserved matter. The effect of the decision reduced that statutory definition as well as the associated statutory guidance.

Following on from the decision, new guidance was issued for the Act, in which it was stated that “woman” in the Act had the same meaning as sections 11 and 212(1) of the Equality Act. In addition, the guidance stated that where a full Gender Recognition Certificate had been issued to a person that their acquired gender was female, their sex was that of a woman, and where a GRC had been issued to a person that their acquired gender was male, their sex was that of a man.

The petitioner contended that the revised guidance did not conform to the interlocutors pronounced by the Inner House in the earlier decision and was thus unlawful. It did so on the premise that the definition of “woman” in the 2010 Act, stated in section 212(1) to refer to “a female of any age”, was to be taken as referring to biological women, and any attempt to conflate that concept with that of a person who had an acquired gender of female in terms of a GRC was impermissible.

Counsel for the petitioner submitted that the revised guidance attempted to introduce a new category of “legal sex” which was not a protected characteristic in terms of the Equality Act, and therefore fell into the same trap as the previous guidance. For the respondent it was submitted that the approach of conflating biological sex and acquired sex as stated on a GRC was consistent with UK legislation, including section 9 of the Gender Recognition Act 2004, which provided that the effect of a full GRC was that the person’s gender became “for all purposes” the acquired gender stated on the Certificate.

Word does not appear

In her decision, Lady Haldane began by noting: “It is important to reiterate that the issue of transgender rights which forms a backdrop to this litigation is an often contentious social policy debate which is beyond the scope of this case. Therefore whilst submissions made either orally or by way of written intervention were informative insofar as they discussed the broader policy issues at play in this area, ultimately submissions on those matters are not capable of determining the issue which is actually before the court, and which is in the end of the day one of legal interpretation.”

Examining the decision of the Inner House as a whole, she said: “The court clearly sets out what it means when it describes the protected characteristic of gender reassignment, which, as it goes on to explain, is a much broader constituency of people than those in possession of a GRC. Further, whilst the court also makes clear that the protected characteristics of ‘sex’ and ‘gender reassignment’ are not to be conflated, it implicitly recognises that those in possession of a GRC are a distinct category of persons not to be treated as synonymous with, or only as a subset of, the protected characteristic of gender reassignment.”

She continued: “I do not accept that, read fairly and as a whole, the decision in FWS1 is authority for the proposition that the appeal court has authoritatively determined that ‘sex’ for the purposes of the 2010 Act, means only biological sex, and therefore that any further or alternative consideration of that issue is foreclosed.”

Assessing the legality of the revised guidance, Lady Haldane said: “In the first place, the word ‘biological’ does not appear in the [2010 Act] definition. It would have been entirely open to the drafters of the legislation to put the matter beyond doubt by including that adjective or descriptor, but they did not. Again, well-established principles of statutory interpretation include the presumption that the drafters of the legislation, highly skilled individuals, do not insert or omit words or use language carelessly.”

She went on to say: “The petitioner’s argument erroneously conflates, in the sense of treats one as a subset of the other, possession of a GRC with the protected characteristic of gender reassignment in terms of the 2010 Act. I reach that conclusion having regard to the plain reading of the definition of gender reassignment which describes a much broader concept, and process than does the definition of the effect of obtaining a GRC in terms of section 9 of the 2004 Act. Thus whilst a person in possession of a GRC may share the protected characteristic of gender reassignment, their sex for the purposes of the 2010 Act is female, or male, according to the terms of their GRC.”

Lady Haldane concluded: “Such a conclusion does not offend against, or give rise to any conflict with, legislation where it is clear that ‘sex’ means biological sex. Mr O’Neill referred to the example of the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021 where references to the sex of the forensic medical examiner can only mean, read fairly, that a victim should have access to an examiner of the same biological sex as themselves. I agree. There are no doubt many other such examples. That does not give rise to the inevitable conclusion, as was urged upon me, that ‘sex’ in the present context must mean the same thing as it does in others.”

The petition was therefore dismissed.