Fri 29 Dec 2023

Gender recognition certificate changes a person's sex for purposes of the Equality Act 2010

Court of Session upholds earlier judgment on this controversial issue.  

In September, we highlighted two impending court cases that we believe are likely to be the biggest issues in equality law right now.  We now have the judgment of the Inner House of the Court of Session in the appeal brought by For Women Scotland, surrounding the definition of a woman under the Equality Act 2010 ("the Act").

This case stems originally from guidance published by the Scottish Ministers on the Gender Representation on Public Boards (Scotland) Act which, as the name suggests, deals with under-representation of women on boards of Scottish public authorities.  The original guidance defined "woman" as including those with the characteristic of gender reassignment and living as a woman whether or not they held a gender recognition certificate ("GRC").  When the guidance was challenged, this provision was struck down as it effectively created a new category of "transgender woman" which does not appear in the Equality Act.

The Scottish Ministers then issued a revised guidance.  This time "woman" included those who had acquired a GRC. For Women Scotland ("FWS") challenged the revised guidance on the basis it sought to introduce a new category of "legal sex", which is not a protected characteristic.  However, on this occasion FWS were unsuccessful, the Court holding that under the Equality Act "woman" includes those with a GRC.  This is largely because the Gender Recognition Act 2004 provides that a GRC changes someone's sex 'for all purposes'.

This means that currently a trans women with a GRC would be treated as a woman under the Act while a trans woman without a GRC would be treated as a man.  This of course works both ways, and a trans man with a GRC would be treated as a man whereas a trans man without a GRC would be treated as a woman under the Act. 

The court judgment in this case highlighted that this issue is one that at its heart has "matters of social policy which are best addressed by the parliaments".  Additionally in April 2023 the Equality and Human Rights Commission, in response to a letter from the Minister for Women and Equalities requesting their input, said that, on balance, it believed redefining "sex" in the Act to mean biological sex merited further investigation.  It remains to be seen what if any action the UK Government may take to try to bring more clarity to this area. 

It is also possible that this judgment will not be end of the matter - FWS have said they are analysing the judgment and have not ruled out the possibility of a further challenge. 

We are also still awaiting the judgment in the challenge by the Scottish Ministers to the UK Government's use of a section 35 Order under the Scotland Act 1998 to prevent the Gender Recognition Reform Bill receiving Royal Assent and becoming law.  The case was heard on 19 and 20 September, and Lady Haldane has stated that due to the case’s ‘unique, interesting and challenging’ nature it may take some time for her to issue her judgment.

It is therefore likely that this emotive issue is set to continue to be at the centre of both legal and public debate for the foreseeable future. 

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