Robin White

I read with interest the article Equality Act and sex – important Scottish cases on the horizon by Dr Michael Foran of Glasgow University. Some of his analysis I agree with but much I disagree with and the editor of Scottish Legal News has kindly allowed me to put forward an alternative view. I am afraid also that the previous article illustrates the dangers inherent in analysing the law from a political standpoint. Dr Foran is known for his work with right-wing think tank Policy Exchange and anti-trans campaign group Sex Matters.

I agree with Dr Foran that the appeal from the recent decision of Lady Haldane that sex means sex as modified by a gender recognition certificate [2022] CSOH 90 is one to watch. He is also right to say that words in statute can have ‘ordinary’ or ‘technical’ meanings, and he is right to identify that the case of Corbett v Corbett (orse Ashley) [1971] P 83 was the first case in modern times to explore this issue. For much of the rest of his analysis we part company.

Discrimination law in the UK has long started from the principle or objective of inclusion. It holds that discrimination of exclusion is bad as is to be reduced or minimized. Thus, if we are to include those who have undergone gender reassignment, we will need to accommodate them according to their acquired or affirmed gender. So trans men must be accommodated in male facilities and trans women female.

In the description of such facilities or spaces we often use the word ‘sex’ to delineate the male/female split. The Equality Act recognises that there may be some (rare) circumstances in which trans people may not be accommodated in their affirmed gender. Those circumstances include gender-affected sport where safety or ensuring fair competition can be legitimate reasons to exclude trans people. In other circumstances, for example where enhanced privacy is needed, trans people can be excluded if it is a proportionate means of achieving a legitimate aim.

It would be understood that the considerations are very different when considering (1) who can attend a feminist book club or (2) how to accommodate attendees at a breast cancer screening service. This is, in effect, permitted discrimination and the law (and the relevant statutory guidance) require that to be tested on a case-by-case basis. Once again it will be easily appreciated that the circumstances may be very different for and individual who transitioned many years ago as a teenager than for someone just embarking on their transition journey.

Corbett (and the later case of Bellringer) concerned marriage. The judge, Ormerod J, was very clear that his determination only related to marriage, which was treated rather differently in 1970 and is not an Equality Act matter. He was clear that, whilst ‘biological sex’, in the sense of being able to procreate, was important in the case of marriage, other considerations might assume greater importance in other fields, for example that April Ashley had been issued a female national insurance number.

Legislation was slow in coming after Corbett. Gender reassignment became a protected characteristic by the 1999 Regulations which amended the Sex Discrimination Act; gender recognition was introduced by the 2004 Gender Recognition Act; and in 2010 the Equality Act brought all nine protected characteristics into one Act.

By 2004 the courts had caught up and, in A v Chief Constable of West Yorkshire Police [2004] UKHL 21, the UK House of Lords ruled that a male-to-female transitioner who was “for all practical purposes” of their acquired gender should be so treated. Dr Foran omits to mention this in his analysis when dealing with that case. It is to be noted that ‘A’ did not have a gender recognition certificate and there is no good reason to regard the A v Chief Constable case as other than still good law.

The consequence of obtaining a gender recognition certificate is, by virtue of s.9(1) of that Act, the person’s gender/sex “for all purposes” becomes that of the acquired gender. This blunted by s.9(3) which provides that the 9(1) provision is subject to any contrary provision in this Act or any other enactment. The GRA itself makes exceptions for matters such as the inheritance of peerages, parenthood and some state benefits.

What is the effect of the GRA on the Equality Act? Dr Foran is very clear in his analysis that the provision of the Equality Act amount to a GRA s.9(3) derogation. I cannot follow the argument. He relies particularly on s.11(a) which states:

And couples this with s.212 of the interpretation provisions which include:

It will be noticed that there is no mention of ‘biological sex’ or indeed s.9(3) of the GRA as there could easily have been. Biological sex is by no means as clearly a determinant of the matters regulated by the Equality Act as it was for the Matrimonial Causes Act being considered by Ormerod J.

What does the s.212 provision mean? Well, the equality act deals with matters such as schools and the provision of services which may affect children. In my view, all s.212 does is to make clear that ‘man’ includes ‘boy’ and ‘woman’ includes ‘girl’. Otherwise, why would ‘of any age’ be there? The Act includes no definition of male or female and there is no good reason why trans people should not be included, for virtually all purposes, in the acquired gender/sex.

Any real difficulties can be dealt with by some appropriate statutory guidance, not by excluding trans people from swathes of protection they have enjoyed for decades and forcing them into inappropriate facilities such as forcing trans men into female facilities, which would be uncomfortable for them and the cisgendered users around them. That is not what the Equality Act is for.

Robin White became the first barrister to transition from male to female in practice at the discrimination bar in 2011. She practises in all aspects of employment and discrimination law and lectures regularly on the area, including transgender rights, in which she has appeared in a number of notable cases, and she acts for employers and employees. She published ‘A practical guide to transgender law’ in May 2021, written jointly with Nicola Newbegin of Old Square Chambers.