We’ll say it again: The Scottish Government MUST take the FWS decision to the UK Supreme Court.

The potential consequences of letting this ruling stand could be serious indeed.

In our previous blog on the recent For Women Scotland v Lord Advocate [2022] CSIH 4 (‘FWS’) judgment we argued that if the Scottish Government has the power to reform the Gender Recognition Act 2004 (‘GRA’) in Scotland, then it also has the power to decide who falls into the protected characteristic of woman [1] for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.


But (as any maths or philosophy professors following along will confirm) it is logical that if A implies B, then not A implies not B [2]. This seems to be the stance that Scottish lawyer and former President of the Scottish Law Society, Ian Smart, has argued by saying that the Inner House judgment in effect means that it is ‘outwith’ (i.e. beyond) the legislative competence of the Scottish Government to enact GRA reform in Scotland. We can’t fault his logical inference, but we do not accept his premises. We believe the Scottish government does have the power to modify the GRA and hence that the decision in FWS was wrong.


If Smart is right, the 97% of trans people in Scotland without a GRC will be discouraged from applying for non-executive roles on Public Sector Boards due to fear of outing themselves. Not great, and certainly unfair, but not perhaps of itself a life changer for many (apart from the legal precedent it might signal). But, alas, there is more:

  • The Scottish government’s proposed GRA reforms will be stopped in its tracks.

  • The ‘spousal veto’ may have to be restored in Scotland as the legislation that removed it in Scotland was passed by the Scottish Parliament. [3]

Six years of media hatred on both sides of the border will have done its work. The upshot will be no improvement in the legal rights of trans people in Scotland, as in England, and the ever-present spectre of being banned from single and separate sex spaces.


The next move from the ‘Gender Critical’ activists seems obvious; to bring an application for Judicial Review claiming that the Scottish Government went beyond its powers in removing the ‘spousal veto’ from the GRA in Scotland. If that is successful, it’s not impossible that some Scottish trans people might be stripped of their GRCs.


To stop this, the Scottish Government needs to appeal the decision in FWS to the UK Supreme Court and to win. As the Scottish Government has not yet announced its intention to appeal, we believe that it is essential for every trans supporting group who has the ear of the Scottish Government to make clear the potentially dire consequences of inaction in this regard.


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


[1] But not the power to change the protected characteristic. A change to the protected characteristic could include changing it to a three-way male, female, non-binary characteristic.

[2] By contraposition. See https://en.wikipedia.org/wiki/Contraposition

[3] See for example the Civil Partnership (Scotland) Act 2020 sched. 2 para. 5.

Recent Posts

See All

The Trans Legal Project blog is a place where we express opinions and offer commentary on aspects of the law, recent or upcoming cases etc.

Thanks for signing up.

Never Miss a Post. Subscribe Now!