A busy day

Women, doctors, protestors and the justice secretary

Lots to report this morning as courts clear the decks ahead of the Easter break.

The meaning of ‘woman’

When parliament used the terms “man” and “woman” in the Equality Act 2010, it was referring to biological sex, not acquired gender. That’s what the UK Supreme Court decided yesterday in For Women Scotland v Scottish Ministers. And that’s just about all it decided.

Susan Smith and Marion Calder from For Women Scotland emerge victorious from the Supreme Court yesterday

As the justices said,

It is not the role of the court to adjudicate on the arguments in the public domain on the meaning of gender or sex, nor is it to define the meaning of the word “woman” other than when it is used in the provisions of the Equality Act 2010. It has a more limited role which does not involve making policy.

The principal question which the court addresses on this appeal is the meaning of the words which parliament has used in the Equality Act 2010 in legislating to protect women and members of the trans community against discrimination. Our task is to see if those words can bear a coherent and predictable meaning within the Equality Act 2010 consistently with the Gender Recognition Act 2004.

So this was a case about statutory interpretation, looking at the words used in legislation and trying to work out what parliament must have meant. But its impact is likely to be much wider than the court has suggested.

Background

• Gender reassignment is a protected characteristic under the Equality Act, which consolidated anti-discrimination law. So it is generally unlawful to discriminate against trans people, whether or not they have obtained a gender recognition certificate.

• Where a full gender recognition certificate is issued to a person, the person’s gender becomes an acquired gender for all purposes. But that provision in the Gender Recognition Act can be overruled by other legislation.

• A biological man — a person born male — who has the protected characteristic of gender reassignment is referred to as a “trans woman”.

• “Certificated sex” refers to the sex attained by the acquisition of a gender recognition certificate.

• Only a small proportion of trans people choose to obtain a gender recognition certificate. Fewer than 8,500 had been issued at the last count. The number of trans people in Scotland, England and Wales is estimated during the hearing at around 120,000.

The central question for the Supreme Court was

does the Equality Act 2010 treat a trans woman with a full gender recognition certificate as a woman for all purposes within the scope of its provisions; or

when that act speaks of a “woman” and “sex” is it referring to a biological woman and biological sex?

Decision

The Supreme Court unanimously allowed an appeal by the feminist campaign group For Women Scotland against decisions of the Scottish courts. It decided that the terms “man”, “woman” and “sex” in the Equality Act 2010 refer to biological sex. Lord Hodge, Lady Rose and Lady Simler wrote a joint judgment, with which Lord Reed and Lord Lloyd-Jones agreed.

Reasons

“The definition of sex in the Equality Act 2010 makes clear that the concept of sex is binary,” said the court. “A person is either a woman or a man.”

As a matter of ordinary language, some provisions in the Equality Act must refer to biological women. The Supreme Court rejected a suggestion from the Scottish appeal court that the words could bear a variable meaning, so that in the provisions relating to pregnancy and maternity parliament was referring to biological sex only while elsewhere it refers to certificated sex as well.

Interpreting “sex” as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way. It would create heterogeneous groupings.

The interpretation favoured by the Scottish government in the guidance under challenge would have created two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a gender recognition certificate greater rights than those who do not. Those dealing with them would have no obvious means of distinguishing between the two sub-groups because they are not allowed to ask trans people whether they have obtained gender recognition certificates.

That interpretation would also seriously weaken the protections given to those with the protected characteristic of sexual orientation, for example by interfering with their ability to have lesbian-only spaces and associations.

There are other provisions which cannot work without a biological interpretation of “sex”. These include the separate spaces that are permitted under the Equality Act and single-sex services such as changing rooms, hostels and medical services.

There would be similar incoherence and impracticability in relation to single-sex associations and charities, women’s fair participation in sport, the operation of the public sector equality duty and the armed forces.

The correct interpretation of the Equality Act does not cause disadvantage to trans people whether or not they have a gender recognition certificate. They can still invoke the provisions on direct discrimination and harassment as well as indirect discrimination.

Effect

Statutory guidance issued by the Scottish government — which I summarised before the hearing — is incorrect. But the Gender Representation on Public Boards (Scotland) Act 2018, as amended, is within the competence of the Scottish parliament and can continue to encourage the participation of women in public life.

The court added:

There may well be public boards on which it is also important for trans people of either or both genders to be represented in order to ensure that their perspective is brought to bear in the board’s deliberations and in the organisation’s governance.

Nothing in this judgment is intended to discourage the appointment of trans people to public boards or to minimise the importance of addressing their under-representation on such boards. The issue here is only whether the appointment of a trans woman who has a gender recognition certificate counts as the appointment of a woman and so counts towards achieving the goal set in the gender representation objective, namely that the board has 50% of non-executive members who are women.

In our judgment it does not.

Analysis

What happens if a trans woman wishes to use a women-only provision, permitted where this is “proportionate”?

If the person appears to be a woman then she is not likely to be stopped unless she is known or found to be trans.

If she is excluded, she can no longer claim to have been discriminated against on the grounds of her sex. But has she suffered discrimination on the grounds of her gender reassignment? Only, it seems to me, if she is treated less favourably than someone who has not had gender reassignment.

The thrust of the judgment — likely to be reflected in new guidance — is that trans women cannot insist on being treated in the same way as biological women, even if they have a gender recognition certificate. So the ruling is likely to make it harder for trans people to insist on being treated in exactly the same way as those who have not transitioned.

On the other hand, it adopts a clear, practical, common-sense approach to a problem that was not foreseen by parliament. And if parliament thinks the Supreme Court has got it wrong, it can simply amend the legislation. But that does not seem necessary — or likely.

Footnote

I advised readers yesterday to “look out too for any comments [the justices] may make about the way the case was argued by counsel at the hearing”.

Referring to a group that had intervened in support of For Women Scotland, the court said:

We are particularly grateful to Ben Cooper KC for his written and oral submissions on behalf of Sex Matters, which gave focus and structure to the argument that “sex”, “man” and “woman” should be given a biological meaning, and who was able effectively to address the questions posed by members of the court in the hour he had to make his submissions.

The justices did not say anything about how effectively the questions posed by them were addressed by the KC representing For Woman Scotland during his three-and-a-half hours addressing the court.

Anonymous no more

The other cases I previewed yesterday were Abbasi and Haastrup. The Supreme Court dismissed appeals by two separate hospital trusts, allowing the parents of children who had died in hospital to identify the clinicians who treated them.

Trying to work out why it took the court a year to deliver its judgment, I speculated that the justices might have granted one appeal and refused the other. That proved to be wrong; but there turned out to be some disagreement among the justices, at least to the extent that Lord Sales felt moved to write a separate but concurring judgment.

The Supreme Court upheld a Court of Appeal decision, but for different reasons. This extract sums up the majority’s thinking:

The only basis on which the continuation of the injunctions was sought was to protect the rights of clinicians; but those rights were not being asserted by the clinicians themselves. If, on the other hand, there had been an application by the clinicians for the continuation of the injunctions in order to protect them from an invasion of privacy (or some other form of wrongful conduct), then the court would have had to consider whether the evidence demonstrated a real risk of such wrongful conduct. The evidence before the courts below did not demonstrate such a risk, as we have explained.

If, however, the evidence had demonstrated such a risk, then the court would have had to consider whether the interference with the right to freedom of expression resulting from the continuation of the injunction was prescribed by law… whether it pursued a legitimate aim… and whether it was necessary in a democratic society and struck a fair balance between the competing values…

Given that the parents’ publication of their concerns would contribute to a debate of general interest and given also that the hospital staff concerned were… public figures vested with official functions, and that the limits of acceptable criticism were accordingly wider than in the case of private individuals, it appears to us that it would be difficult to justify the continuation of the injunctions in the absence of evidence demonstrating a real and continuing threat of a serious nature.

Tommy Robinson

Last October Stephen Yaxley-Lennon (also known as Tommy Robinson) admitted 10 separate breaches of a court injunction. He was sentenced to a total of 18 months imprisonment, of which 14 months was punishment and four months was described as coercive. If he purges his contempt by taking down various publications, the four months will be taken off the total. In any event, he will be released this summer, half-way through his sentence.

He appealed last week against his sentence on two grounds:

• his prison conditions were unexpectedly onerous; and

• his mental health was worse than it had been when he was sentenced.

Those arguments were dismissed yesterday. Three appeal judges headed by the lady chief justice said:

We see no reasonable basis for the contention that the conditions that he is experiencing are so substantially worse than the judge anticipated at the time of the sanction decision as to call for a downward adjustment…

The evidence falls far short of the standard for a successful criminal appeal based on fresh medical evidence… [It] does not on analysis show either a significant exacerbation of a known medical condition or a material new factor.

Airport protest

Two climate change protestors who had planned to close down Heathrow Airport in 2019 by flying toy drones in a restricted zone lost their appeals against conviction yesterday. Roger Hallam and Larch Maxey had been convicted in 2023 of conspiracy to cause a public nuisance.

Separation of the powers

On yesterday’s edition of their excellent Double Jeopardy podcast, Tim Owen KC and Ken Macdonald KC laid into the lord chancellor and secretary of state for justice for a post she had published on social media at the weekend:

Only last year, Shabana Mahmood took an oath to “defend the independence of the judiciary”. That includes independence from the government. And independence from the government means that ministers do not put pressure on judges to impose the “strongest possible punishment” on a suspect who, at that stage, had not been charged, let alone tried and convicted.

In our system, we don’t even allow prosecuting counsel to call for a particular sentence. The most that a prosecutor might do these days is to help the judge with any sentencing guidelines or past cases. As Macdonald said of Mahmood, she really ought to know better.