Sex Matters to intervene in Equality Act case at Inner House

Its submission, which will be made public on Wednesday, will urge the court to consider the impact of the legal meaning of ‘sex’ on human rights.

The case concerns whether it is lawful for the Scottish government to tell public bodies to include those who have transitioned by obtaining a GRC when considering whether the legal quota for female board members has been met as part of the Gender Representation on Public Boards (Scotland) Act 2018.

In December 2022, Lady Haldane ruled that the Scottish government’s approach was lawful, saying that the definition of woman in the Equality Act 2010 includes biologically male people in possession of a GRC, recognising their “acquired gender” as female.

Sex Matter’s intervention supports For Women Scotland’s appeal against this judgment. It argues that it is wrong in law because it did not consider the impact on fundamental human rights protected by the European Convention on Rights, as legally required by the Human Rights Act 1998.

Maya Forstater, executive director of Sex Matters, said: “It is important that the impact of the definition of sex on human rights is considered by the court.

“On its face, this case is narrowly about the operation of diversity quotas on public boards in Scotland. But the legal interpretation concerns the definition of woman in the Equality Act 2010, which has significant implications for women’s rights.

“This concerns the whole of Great Britain: all our protections against sex discrimination as well as every area where organisations can lawfully treat men and women differently, including single-sex services, single-sex charities and associations, and jobs that need to be done by a man or a woman in order to protect other people’s dignity and privacy.

“Lady Haldane said in her judgment that the issue of transgender rights was beyond the scope of the case. But redefining the words ‘woman’ and ‘female’ in law to include some male people with a government-issued certificate will destroy women’s rights in favour of an expansive view of ‘transgender rights’.

“The Gender Recognition Act is based on the right to privacy and the right to marry, which are protected by the European Convention. But these rights should not override other people’s rights, or make equality and anti-discrimination law unworkable and impossible to understand.”

Sex Matters’ intervention argues that changing the definition of man and woman in the Equality Act to include members of the opposite sex undermines the protection under Article 3 of the European Convention against inhuman or degrading treatment. The European Court of Human Rights has already ruled that being searched or intimately examined by a member of the opposite sex can fall foul of this provision.

Helen Joyce, director of advocacy at Sex Matters, said: “Unless the court makes clear that gender recognition certificates are not access-all-areas passes that erase people’s actual sex, they will become weapons that can be used to destroy women’s human rights in a wide range of situations. These include the criminal justice system, the NHS and schools, where employees have powers to undertake searches and medical examinations, and women and girls are supposed to have the right to refuse searches by men – that is, by male people.

“Blurring sex categories also infringes on Articles 9, 10, and 11: freedom of belief, freedom of speech and freedom of association. Deciding on the meaning of ‘sex’ in the Equality Act cannot be settled with reference only to the narrow application of diversity quotas for Scottish public boards, when that definition also determines whether lesbians are allowed to have women-only associations, and whether charities are allowed to provide rape-crisis services that exclude all men, however they identify and whatever their paperwork.”

Sex Matters is represented by David Welsh of Axiom Advocates and Rosie Walker, partner at Gilson Gray.