The For Women Scotland ruling must be appealed urgently.

It has been a rollercoaster week if you blog about trans legal issues. On Wednesday, the Good Law Project, strongly supportive of trans rights, published legal advice [1] around protections for trans children in schools. It was written by Dan Squires QC. Whilst he ended up making the point that single-sex schools could legally enroll trans children living in their chosen gender and should consider doing so, along the way he argued that the legal sex of trans people without a Gender Recognition Certificate (‘GRC’) is, for all purposes, their sex registered at birth. This unfortunate restatement of a prominent ‘Gender Critical’ argument caused a lot of alarm here at the Trans Legal Project.

But before we could sharpen our quill and write a blog piece challenging Squires’ legal arguments, out popped a decision in the Scottish Census case, Fair Play for Women v National Records of Scotland [2] (‘FPW’). Lord Sandison, sitting in the Outer House, decided “that there is no such general rule of law” such that “a person’s sex for all legal purposes is defined by that person’s birth certificate or GRC.” [3] Then, whilst we were still congratulating ourselves that our view of the law had been confirmed, the Inner House decision in For Women Scotland v Lord Advocate [4] (‘FWS’) appeal dropped.

The Scottish Government in the Gender Recognition on Public Boards (Scotland) Act 2018 (‘the 2018 Act’), mandates that certain positive actions must be taken in the event that there are less than 50% women in non-executive positions on a given public sector board. The word woman was defined to include those transgender women with the protected characteristic of gender reassignment who live as women [5]. In FWS, the petitioner claimed that the Scottish Government was ‘outwith’ (i.e., outside) its powers by including transgender women in the definition of woman in the act. The Outer House had found for the respondent (the Scottish Government), but on appeal, the Inner House has now found in favour of the petitioner.

The court found that the respondent could only legislate for positive action measures provided everyone with a specific protective characteristic [6] benefited. As the legislation excluded some trans women and some trans men with the protected characteristic of gender reassignment [7] and not every trans women’s protected characteristic of sex was female, it was outwith the Scottish Government’s legislative competence.

The ratio decidendi [8]

The most important passage in the judgment is contained in para. 36:

“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.” [9]

In our view, this passage is part of the ratio. Having decided that positive action measures can only be for one specific protected category and must cover the whole of the category, the court then needs to demonstrate that some individuals classified as women by the 2018 Act didn’t have a protected characteristic of sex that was female.

The Scottish Government cannot amend the definition of the protected characteristic of sex in the Equality Act (‘EA 2010’). It is a reserved matter. The protected characteristic of sex is a binary partition consisting of men and women. The difficulty the judges have is that the Scottish Government is entitled to decide under what conditions and for what purposes a trans woman should be legally recognised as a woman subject to complying with retained EU Law and the Human Rights Act 1998. This is not a reserved matter [10]. The Scottish Government has made changes to the Gender Recognition Act 2004 that apply to Scotland, such as removing the spousal veto [11] and is proposing a major reform of the GRA in Scotland [12]. Thus there is a paradox. The Scottish Government cannot change the protected characteristic but it can decide who falls into this characteristic. Hence pretty much the only way for the court to decide the 2018 Act was outwith the competence of the Scottish Government was to find that the protected characteristic of sex is determined by sex registered at birth (i.e., biology). This way the Scottish Government cannot just decide who falls into the protected category. And the court seems to have tried to do just this.

There are however no legal authorities for this proposition and it rides roughshod through the plain language of both the EA 2010 and the GRA 2004. The EA 2010 defines a woman to be “a female of any age” [13]. The GRA s. 9(1) holds that on the issuance of a GRC, “the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”

If the use of the word female in the EA 2010 indicates biology, rather meaning either a girl or woman, then the use of the word female in GRA 2004 s. 9(1) likewise indicates biology and creates a legal fiction [14] that trans women are biologically female. Hence the argument fails. Furthermore, the reality is sex and gender, female and woman, are so interchangeable in both everyday language and the law [15] that the choice of using the word female does not in itself mean a reference to biology was intended.

This proposition also goes against the decision in A v Chief Constable of West Yorkshire Police [16]. In A, a trans woman A was denied employment in the police in a role that would entail carrying out intimate searches of female suspects as she did not meet the genuine occupational requirement of being female. However, the Appellate Committee of the House of Lords held that for the purposes of both the Sex Discrimination Act 1975 [17] and the Police and Criminal Evidence Act 1984 s. 54 she should be viewed as female. She therefore satisfied the genuine occupational requirement. Baroness Hale, commenting on the forthcoming GRA (which was at that moment going through Parliament) stated “[o]nce recognised [under the GRA], the reassigned gender is valid for all legal purposes unless specific exception is made. It will no longer be a genuine occupational qualification that the job may entail the carrying out even of intimate searches”[18]. In other words, with a GRC a trans individual’s protected characteristic of sex is their acquired gender rather than their “biology”. If on the other hand, FWS is correct then a trans woman with a GRC who is a serving police officer could now be sacked without cause purely because ‘biologically’ speaking, she is male. This outcome is clearly against both the spirit and letter of A. Given FWS was a decision by the Inner House, and A was a binding decision by the House of Lords, the court in FWS has acted in a way that is contrary to a binding authority.

An alternative view, however, is that the judges in FWS did not realise the Scottish Government has the power to decide who is recognised as a woman and therefore did not realise their judgment required that the protected characteristic of sex be based on biology. Further in the Outer House, the petitioner stated that the GRA creates “a form of legal fiction”[19]. If the fiction is that trans women with a GRC are biologically female, then the decision respects the rights of trans people with a GRC. This is also consistent with the Equality Network’s written submission to the Outer House (which we have had the benefit of reading). This suggests that the petitioner's complaint solely refers to trans women without a GRC.

Also, the words “[f]or this purpose” and “in this context” in para. 36 of the judgment could refer to Scottish domestic legislation and hence the judgment distinguishes A, which covers areas of retained EU Law such as discrimination in the areas of employment and services. Taking this view, the error of law made by the court does not relate to the rights of trans people, but the powers of the Scottish Government.

Grounds for appeal

Whichever view one takes, there are clearly strong grounds for an appeal. The two main grounds for this are:

1. A constitutional law question regarding the powers of the Scottish Government to pass positive action measures concerning public sector boards that do not benefit every member of a protected characteristic. Lady Wise in the Outer House, without making any obvious errors of law, decided this aspect of the case differently.

2. Either there is a clear legal error in deciding that the protected characteristic of sex is defined biologically, or alternatively failing to recognise that the Scottish Government has the power to decide who is recognised as a woman for the purposes of the 2018 Act.

Single and separate sex services

Even if the protected characteristic of sex is defined as the sex registered at birth, it does not impact on access to single and separate sex services. This is because the moment at which a trans person is entitled to bring a discrimination claim if refused access to using a single or separate sex services does not depend on their legal sex or alternatively their sex registered at birth [20].

Concluding thoughts

The outcome of this case is obviously very disappointing for trans women in Scotland and is likely to discourage trans people from serving on Public Sector Boards. But it also has a far broader impact. It appears to have decided that trans women’s protected characteristic of sex is male, even if they have a GRC. If this is the case, in our view, this is a significant error of law with potentially serious consequences if not challenged and reversed.

We believe that this case must be appealed to the Supreme Court, which would then have a chance to reaffirm its predecessor’s decision in A and also to clarify that the possession of a GRC is definitive as to trans people’s protected characteristic of sex.

********************

[1] D. Squire: Trans Children in Schools (Good Law Project, 16 Feb 2022) Available from https://drive.google.com/file/d/1YmoyjcNQtr0V2yPSZjbXQy1GcGYiAKbB/view [Last accessed 18 Feb 2022] [2] [2022] CSOH 20 (‘FPW’). Available from https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csoh20.pdf?sfvrsn=9a4944d9_1 [Last accessed 18 Feb 2022] [3] Ibid. para. 42 [4] [2022] CSIH 4 (‘FWS’). Available from https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csih4.pdf?sfvrsn=7920df79_1 [Last accessed 18 Feb 2022] [5] Public Boards (Scotland) Act 2018 (‘the 2018 Act’) s. 2 [6] FWS para. 40 [7] Ibid. [8] Ratio decidendi refers to the moment or principle in a case that ultimately determines its outcome https://legaldictionary.net/ratio-decidendi/. [9] FWS para. 36 [10] The Scotland Act 1998 sched. 5 lists the reserved matters [11] Gender Recognition Act 2004 s. 4E [12] See https://www.gov.scot/publications/gender-recognition-reform-scotland-bill-analysis-responses-public-consultation-exercise/ [Last accessed 19 Feb 2022] [13] Equality Act 2010 (‘EA 2010’) s. 212(1) [14] A legal fiction is ‘something assumed in law to be fact irrespective of the truth or accuracy of that assumption’ https://www.merriam-webster.com/legal/legal%20fiction [15] See FPW para. 30 which lists various cases that conflate sex and gender [16] [2004] UKHL 21 [17] Since consolidated into the Equality Act 2010 [18] A para. 42 [19] For Women Scotland v Lord Advocate [2021] CSOH 31 para. 6. A legal fiction is ‘something assumed in law to be fact irrespective of the truth or accuracy of that assumption’ https://www.merriam-webster.com/legal/legal%20fiction [20] See Croft v Royal Mail [2003] EWCA Civ 1045

The EHRC's statement is misleading

Following the publicity about its plans for guidance regarding single and separate sex spaces, the EHRC has released a carefully worded statement. In it, the EHRC states:

“It is completely false to suggest that we are looking to bar trans people from accessing spaces without a Gender Recognition Certificate. We are not aware of any document produced by the EHRC that would support this.”

Based on the legal positions adopted by both the EHRC and ‘gender critical’ feminists (whose positions they have wholeheartedly adopted), we think that in a literal sense this statement is likely to be true. However, our expectation is that the EHRC will

1) State that blanket bans on trans people without GRCs using single and separate sex services are lawful - in direct contradiction to assurances given to the Trans Legal Project in June 2021 by the Joint Acting Chief Executive of the EHRC.

2) Warn organisations that a failure to enact such a blanket ban would leave these organisations open to claims of indirect discrimination on the grounds of sex.

This would be consistent with the story in Vice stating that the unpublished guidance

‘advised businesses and other organisations such as shops, prisons and gyms to “protect women” by barring most trans people from their single-sex spaces, including toilets, wards and changing rooms.’

The effect of such guidance would be a de facto ban on trans people without GRC’s using single and separate sex services that match their acquired gender. Businesses and service providers would be pressured into imposing bans themselves, for fear of facing court action from 'gender critical' activists, supported by the EHRC. We have no doubt that that opponents of trans people's human rights would move quickly to threaten businesses and service providers with this, focussing on those with a high public profile who were trying to continue to be inclusive of trans people.

We call on the EHRC to repeat the assurance it gave us in July 2021 that any blanket ban on transgender people without GRCs using single and separate sex services that match their acquired gender put in place by an organisation is unlawful. We also call on the EHRC to guarantee that no guidance it is about to issue will attempt to state otherwise. This would end the concern expressed on social media and elsewhere about its intentions.

The EHRC’s stance on trans people’s access to single and separate sex spaces is legally ludicrous.

The EHRC is adopting legal positions to allow for blanket discrimination against trans people on ideological grounds. There’s plenty of commentary online already on how prejudiced, vindictive and unworkable the EHRC’s new stance is; how it is a desperate solution in search of a confected problem, with obvious political undertones. Its understanding of the law seems to be no better. We here review the legal realities and include links to copies of our correspondence with them, in some of which they lay out their legal position. Last year we wrote to the EHRC as we were concerned that it had adopted legal positions that would allow organisations to discriminate against trans people on ideological grounds. In particular, we had begun to detect it moving to a stance that would allow discrimination against any trans person without a Gender Recognition Certificate (GRC) with respect to single and separate sex spaces.

The EHRC’s reply to us caused a great deal of concern. Whilst gaslighting us that its legal positions would not allow blanket discrimination against trans people without a GRC, it also doubled down on the legal position we had feared it was taking. Some of its supporting arguments, including legal misinterpretations, looked suspiciously like simple lifts from so-called ‘Gender Critical’ writing on the internet.

Our worst fears have now been confirmed. Yesterday, VICE published an article based on leaks around long-expected guidance from the EHRC on single and separate sex spaces. This proposed guidance (it remains to be seen whether the EHRC foresees giving it Statutory status or not) advises organisations to prevent trans people without a GRC from using facilities (such as toilets or changing rooms) that match their lived gender.

The law

Legal principles around trans people’s access to single and separate sex spaces were established in two groundbreaking employment cases A v Chief Constable of West Yorkshire Police [2004] UKHL 21 and Croft v Royal Mail. These principles are as follows

• The legal gender of an individual is not the determining factor in whether they are allowed access to single and separate sex facilities [1].

• If discrimination against a trans person takes place, the reasons for the discrimination must be practical; for example allowing co-workers time to adapt to a worker’s new gender, rather than simply prejudice [2].

• Discrimination can occur only on a situation-dependent, case-by-case basis [3].

• Discrimination can occur only if there is no reasonable alternative and then the least discriminatory approach must be adopted [4].

The legal basis for the decisions in A and Croft is the jurisprudence of the Court of Justice of the European Union. Discrimination in the field of services is also prohibited by retained EU directives so, by extension, the principles also apply to services. For services, these principles are codified in the well-known exception to the Equality Act 2010, Schedule 3 para. 28. Guidance for the operation of these exceptions is provided by the EHRC’s own “Services, public functions and associations: Statutory Code of Practice” paras. 13.57-13.60. The code explicitly states “If a service provider provides single or separate sex services for women and men, or provides services differently to women and men, they should treat transsexual people according to the gender role in which they present”. Transsexual is used in the legal sense here of referring to anyone with the protected characteristic of gender reassignment – which does not require the individual to undertake a medical transition.

The EHRC’s legal interpretation

The EHRC has decided that four cases that cover the law in this area are no longer relevant. In summary, its view is:

According to the new EHRC position, the Gender Recognition Act 2004 (‘GRA’), an act designed to grant rights to trans people, has wiped A and Croft, and the principles contained in these cases, from the law books. However, nowhere in GRA is there any statutory text that seeks to override A and Croft. On the contrary, the statutory language is carefully drafted to preserve the existing case law. If this wasn’t the case, there would have been careful transition provisions in the GRA to protect existing rights while individuals applied for their Gender Recognition Certificates.

Further, the principle of legality, per Lord Hoffman in ex parte Simms [6] states that “[f]undamental rights cannot be overridden by general or ambiguous words” [7]. In fact, there are neither general, ambiguous nor specific words in the GRA that might remove trans people’s rights.

Rather than the House of Lords and Court of Appeal decisions referred to above, the EHRC prefers the first instance decision of Green [8]. This is an obscure case that concerned the rights of transgender prisoners. It first came to prominence on the well-known transphobic website, Mumsnet, before being adopted by various ‘Gender Critical’ feminists. The EHRC has stated to us that Green was of “general applicability” and hence applies to employment and services.

We are beyond words with incredulity that not only has the EHRC disregarded a House of Lords and a Court of Appeal decision, but it has also decided that Green is the new precedent. This, despite the following:

1. Green was the decision of just one judge, HHJ Richardson QC, sitting in the High Court. It has received minimal judicial scrutiny.

2. Green was a judicial review case regarding whether a transgender prisoner had been treated in accordance with prison policy. The applicant tacked on an EA 2010 claim which was not fully argued. HHJ Richardson dealt with the claim in just nine paragraphs.

3. Green concerned a Category B prison - a totally different context from everyday life. HHJ Richardson even notes this: “At all stages of this case it is critical to remember the context in which I decide this case is that of a prison, and there are serious security considerations. What may happen in everyday life without too much difficulty, when translated to a prison suddenly poses truly difficult issues.” (para. 2) (our bold).

4. Green concerns a claim of discrimination in the course of execution of a public function. This type of discrimination is not a matter of retained EU law, but a matter for domestic law only. Therefore, it cannot be a precedent for areas of discrimination such as Employment and Services which are covered by retained EU law.

5. Green approved the case of Croft, with the court noting “I am influenced by the judgment of the Court of Appeal in [Croft]”. Even if Green is viewed as good law, for example as an authority on discrimination in prisons or the execution of public functions, [we do not view Green as good law at all], then it relies on the case of Croft. You cannot have Green without Croft.

6. Professor Alex Sharpe writing in the peer-reviewed journal, Modern Law Review [9] notes that Green is inconsistent with Croft and concludes “It seems unlikely Green would have survived an appeal or that our superior courts presented with such a scenario today would proceed as HHJ Richardson did.”

Alongside this post, we are publishing our correspondence with the EHRC, plus a full analysis of the legal problems of using Green as a precedent in a draft working paper (links below). Our letters to them include a full legal analysis of the legal problems with the EHRC’s position in our reply to them.

Conclusion

The EHRC, which has a legal duty to protect the rights of trans people, has decided that 9 paragraphs written by an Honour Judge sitting in the High Court are sufficient to destroy the rights of hundreds of thousands of trans people.

In the introduction to our paper on Green, we explain the ‘Gender Critical’ strategy to destroy the rights of trans people in the UK as follows:

“‘Gender critical’ feminists believe on ideological grounds that transgender women are really men and should be excluded from all female single-sex spaces. To achieve this goal, they are following a two-pronged strategy to undermine the legal protections for transgender people related to employment and services

.

i) They seek to rely on the High Court case of Green v Secretary of State for Justice, and ignore other cases and statutory authorities, in order to argue that only the roughly 1% to 2.5% of the trans population who have GRCs have any legal right to bring a claim under the Equality Act 2010 (‘EA 2010’) if they are excluded from using single-sex spaces in their acquired gender.

ii) They oppose attempts to reform the GRA to remove the legal and practical barriers for the remaining 97.5% to 99% of the trans population to formalise their legal status.”

Following the EHRC’s intervention in GRA reform in Scotland and now its draft guidance on single and separate sex spaces, it appears to have fully signed up to this strategy. Should it attempt to put it into practice, it can expect to face very determined legal opposition.

*************************

Correspondence to/from EHRC 2021-22 etc: Letter to EHRC July 1st 2021 Reply from EHRC July 27th 2021 - the EHRC sets out its position Letter to EHRC January 11 2022 (no reply received) - TLP's response to the EHRC position The Case of Green: Draft Paper

[1] See LJ Jonathan Parker in Croft “As to the first question, [the respondent’s counsel] primary submission is that it is necessary to determine to which sex the applicant belongs, since the proper comparators are other employees of the respondent who are also members of that sex. I agree with [LJ Pill] that that submission is to be rejected. “ [2] Note the general tenor of A and Croft. LJ Pill in Croft notes “the particular difficulties which arise with respect to toilet facilities” (para. 48), that the employers “were entitled, for a period of time, to rely on the unisex disabled toilet as being a sufficient facility” (para. 55) but the decision as to when this period of time ended “cannot be determined by the views of other employees.” (para. 47). [Edit - this footnote replaces previous footnote to add clarity, 12/02/22]. [3] See LJ Pill in Croft para. 53 “The moment at which a person in the applicant's position is entitled to use female toilets depends on all the circumstances..” [4] See Baroness Hale’s speech in A para. 58 where she notes “…a derogation from an individual right which must be interpreted strictly and in accordance with the principle of proportionality” [5] MB v Secretary of State for Work and Pensions (Case C-451/16) [6] [2002] 2 AC 115 [7] Ibid. para. 12 [8] Green v Secretary of State for Justice [2013] EWHC 3491 (Admin) [9] (2020) 83(3) MLR 539