Today saw the delivery of a concerning judgment1 by the Supreme Court of Scotland in the appeal by For Women Scotland Ltd concerning the The Gender Representation on Public Boards (Scotland) Act 2018. Fundamentally, the legal issue at hand was one of constitutional law - the extent of the Scottish Parliament's devolved powers. However, as is highlighted by the support of SNP MP Joanna Cherry QC for the judgment, the real issue for campaigners was never the scope of powers afforded to the Scottish Parliament. It might seem deeply confusing that an MP who supports an independent Scotland would advocate for a restriction of Scottish powers. However, although explicitly rejected as a central issue in the judgment2, the case has become yet another attempt by 'Gender Critical' activists to attract legal support for their contention that trans women are not women. Unfortunately, in this instance, the judgment includes troubling comments on the meaning of 'sex' within the Equality Act 2010. Although it does not amount to the resounding victory that 'Gender Criticals' are claiming, there are worrying implications if the judgment remains unchallenged.
The Challenge
The case concerns The Gender Representation on Public Boards (Scotland) Act 2018, an Act of the Scottish Parliament which required public boards in Scotland to aim for 50% of their non-excecutive positions to be filled by women.3 The Act sought to define women in an explicitly trans-inclusive way, 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.”4
However, For Women Scotland Ltd challenged the competence of the Scottish Parliament to pass such legislation on a number a bases. The key argument was that this definition of 'woman' was broader than the definition of the protected characteristic of 'sex' under the Equality Act 2010, with the definition of protected characteristics being a matter 'reserved' for Westminster. They argued that by expanding the definition, Holyrood had exceeded its power. The legislation had to conform to the structure of the Equality Act 2010, in which the protected characteristics of sex and gender reassignment were wholly separate. 5
Many of the additional arguments were focussed on typical 'Gender Critical' talking points. They submitted that the definition of women in the 2018 Act was 'fundamentally incompatible with the rights of those born women', discriminating against 'biological women'.6
Notably, for a supposedly feminist organisation, they also repeated the much-criticised anti-feminist argument that the quotas promoted 'equality of outcome' over the preferable 'equality of opportunity', and that this was unlawful 'reverse discrimination' against men.7 Of course, this argument ignored the detailed provisions within the Act ensuring only highly and equally qualified individuals were appointed to the boards.8 This is a highly unusual argument for a 'For Women' organisation to make, which might suggest other motives for their legal action beyond female empowerment.
The Troubling Judgment
It is important to note at the outset, and despite its significant flaws, the judgment explicitly emphasised that the issue at hand was not a debate around trans lives - despite the attempts of For Women Scotland Ltd to make it one (emphasis added):
[26] It is important at the outset to identify what this case is not about. As the Lord Ordinary noted in para [1] of her opinion:
“It should be understood at the outset that the case does not form part of the policy debate about transgender rights, a highly contentious policy issue to which this decision cannot properly contribute. At its core, this litigation is concerned with whether certain statutory provisions were beyond the legislative competence of the Scottish Parliament. While I record certain statements that were made about Scottish Ministers’ policy or position on transgender rights, that matter was at best tangential to the central dispute and has had no bearing on the decision that I have made.”
[27] These observations continue to have force. During the hearing of the reclaiming motion certain submissions were made in respect, for example, of the Gender Recognition Act 2004, critical of the process involved in obtaining a gender recognition certificate. Policy issues of this kind are wholly beyond the scope of the case...
Additionally, the judgment quickly swept away any arguments relating to 'reverse discrimination'.9 The core of the case was determined to be:
…The issue of whether disapplying the 2010 Act provisions was within legislative competence thus turns, as with the primary issue regarding section 2, on whether the definition of “woman” takes the matter beyond legislative competence.10
Furthermore, the Court accepted the argument that the Scottish Parliament could not for the purpose of the relevant Act modify the definition of any protected characteristic within the Equality Act 2010.11 This begs the question, therefore, of what precisely that definition is. This is where the judgment starts to become concerning.
The judgment affirms that the material protection offered to trans women by this Act is not itself unlawful. However, what it believes was unlawful, is the inclusion of trans women in the sex category of 'women' within the Equality Act 2010:
The protected characteristics listed in the 2010 Act include “sex” and “gender reassignment”. The Scottish Parliament would, as we have noted, have been entitled to make provision in respect of either or both these characteristics. So far as the characteristic of sex is concerned, it would be open to the Scottish Parliament to make provision only for the inclusion of women, since a reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman. For this purpose a man is a male of any age; and a woman is a female of any age. Section 11(b) indicates that when one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female. Thus an exception which allows the Scottish Parliament to take steps relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.12
The emphasis on the term 'biologically male' here - not a term which appears within any of the relevant legislation - itself seems sufficient grounds for an appeal. Despite the substantial normative problems in using such a dogwhistle term, this analysis does not mention or account for the Gender Recognition Act 2004, s9(1), which explicitly states that upon the issue of a Gender Recognition Certificate an individual becomes their 'acquired' sex, for all purposes. This of course includes the Equality Act 2010. This a clear mistake in law, which fortunately does not have the power to revoke the rights granted by statute to individuals with a GRC.
Importantly, to be considered a 'transsexual' within the meaning of the Equality Act 2010 (i.e. having the protected characteristic of 'gender reassignment') a person need only be 'proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex'.13 The clear reference to sex here, without any requirement of a GRC, brings into even further doubt that trans women living as such are not captured by the protected characteristic of sex. Moreover, specific reference to 'other attributes of sex' – i.e. non-physiological (and thus non-biological) - makes a mockery of the judgment's determination of 'biological' sex as the ultimate determiner of the protected characteristic, when the reference to the importance of non-biological sex characteristics is within the very same piece of legislation.
The judges also seem compelled by the notion that the definition of women adopted under the 2018 legislation means 'the representation objective could as a matter of law be met by the appointment of no individuals possessing the protected sex characteristic of women.'14 Why this is problematic is unknown, given the definition adopted clearly requires that individuals appointed be living as women. Particularly ironic, is the fact that a definition which accounts only for 'biological' or indeed registered sex could result in a board made up entirely of men - half (or more) trans men, and half cis men. In fact, the judgment explicitly states that the legislation is unlawful in 'protecting only those with [the protected sex characteristic of female] who are also living as women' - i.e. by not including trans men in quotas for 'women'.15 This is deeply problematic for ensuring the representation of women, and profoundly invalidating of the identities and experiences of trans men. However, when adopting the bio-essentialist view of sex and gender espoused by Gender Criticals, it is unsurprising that this conclusion might be reached.
The judgment thus concludes that “transgender women” is not and cannot be a protected category for the purpose of the 2018 legislation and the Equality Act. There are those with the protected sex characteristic of women, and 'biological males' who might have the separate protected characteristic of gender reassignment. 'Women' for equality purposes cannot include trans women, to be read - at a minimum - as trans women without a GRC. The definition of 'women' in the Scottish legislation was therefore held to be unlawful.16
The Implications
Fortunately for many trans people, this judgment is more likely to be useful to 'Gender Criticals' rhetorically, rather than legally. They instantly clung to the unpleasant language, particulary - 'provisions in favour of women, in this context, by definition exclude those who are biologically male' - to assert that 'trans women aren't women after all' 17. Despite the legal illiteracy of such statements, we are likely to see the language of this judgment against trans people, and especially trans women's rights to access single-sex spaces.
In terms of access to legal rights, for trans individuals with a Gender Recognition Certificate there is little reason to be alarmed. As previously stated, the manifestly incorrect comments within the judgment about 'biological sex' are incapable of overriding the explicit wording of the Gender Recognition Act 2004. However, for the majority of trans people who are unable to access or unwilling to partake in such documentation, there is more reason to be wary. This may be used in further cases and by transphobic institutions as a justification to exclude trans women from single-sex spaces, and protection from other misogynistic discrimination. The full impact is yet to be seen.
Despite the positive judgment in the Fair Play For Women case18 yesterday, it is important to note two things:
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The two judgments don't explicitly contradict. The Fair Play For Women case discusses whether there is a general test for 'sex' within UK law, and held that there was not. However, it also emphasised that what the test for 'sex' is might vary from piece of legislation to piece of legislation. Therefore this case, which assesses what that test amounts to under the Equality Act 2010, underscores rather than undermines that fact. It does, more subtly however, bring back into play apparent distinctions between 'biological sex' and 'gender reassignment' which the judgment yesterday implictly undermined.
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Even if the two were to contradict, this judgment comes from a higher court. It is therefore more likely to be influential, and may play a role in the upcoming appeal of the Fair Play For Women case. However, the appeal of the Fair Play for Women case may freely overrule or distinguish any unlikely conflict.
We can be hopeful that this judgment will be appealed to the UK Supreme Court, who have recently emphasised that the terms gender and sex are often used 'interchangeably', and are 'subject to the inclusion of transgender persons within the category of their acquired gender'.19 It would therefore seem doubtful that they will uphold an attempt to draw a meaningful and impactful distinction between the two. If the confinement of the protected sex characteristic of 'woman' to 'biological' women or those with a GRC is upheld, this might be ripe for a human rights law challenge. This is especially pertintent given the recent condemnation of the UK's treatment of its trans population by the Council of Europe.
This decision emphasises the need for legislative reform to ensure it is explicit that all trans women are women, for all purposes, without need of a GRC. Until this point, the rights of trans women will be subject to more legal challenges from an elite group of anti-trans activists able to fund such litigation. Whilst this is not a cure for the deeply entrenched transphobia of the UK, it is a relatively minor legislative change that will give many trans individuals the confidence and safety to operate within our bureaucratic society.
References:
(n. 1) paras [26]-[27].
(n. 1) para [19].
(n. 1) para [19].
(n. 1) para [20].
(n. 1) para [33].
(n. 1) para [32].
(n. 1) para [34].
(n. 1) para [36].
(n. 1) para [39].
(n. 1) para [40].
(n. 1) para [40]-[41].
Just one example of a wealth of similar statements, which can be found via a simple twitter search.
R (on the application of Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56 [5].