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:
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.
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.
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[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