What does ‘woman’ mean?
That’s what the UK Supreme Court is being asked to decide
Does a gender recognition certificate change a person’s “sex”? What’s meant by the terms “sex”, “man” and “woman” in the Equality Act 2010? Can people with full certificates recognising them as female complain under anti-discrimination law if they are not treated as women? And is the Scottish government’s guidance on these issues lawful?
Those are among the questions that the UK Supreme Court will consider at a hearing starting tomorrow. Lord Reed of Allermuir, who will preside over the appeal, summarised the main issue when I interviewed him in October. As you can hear in this brief extract by clicking the ► symbol, the Supreme Court president regards the case as both difficult and important:
How we got here
This is an appeal from the courts of Scotland. Its starting point is legislation passed by the Scottish parliament in 2018 which aims to increase the proportion of women on the boards of Scottish public bodies. Positive action is allowed by the Equality Act 2010 when “participation in an activity by people who share a protected characteristic is disproportionately low”.
The Scottish legislation begins by saying that
the “gender representation objective” for a public board is that it has 50% of non-executive members who are women.
The legislation then sets out how that objective is to be achieved.
Under the act, as it was originally passed,
“woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.
That provision was challenged by a campaign group called For Women Scotland. Its members believe that there are only two sexes; that a person’s sex is not a choice; and that sex cannot be changed. It argues that the definition of “woman” should not include people it describes as biological males — natal males, as some others call them.
The group has taken two cases as far as the Inner House of the Court of Session — Scotland’s highest appeal court. In the first case, referred to as FWS 1, For Women Scotland argued that the definition of “woman” I have just quoted is outside the legislative competence of the Scottish parliament because it relates to matters that had been reserved to the UK parliament at Westminster.
The Inner House agreed in 2022. As a result, the definition was struck out and then formally repealed.
The Scottish ministers then issued revised guidance. This says:
There is no definition of “woman” set out in the act with effect from 19 April 2022 following decisions of the court of 18 February and 22 March 2022.
Therefore “woman” in the act has the meaning under section 11 and section 212(1) of the Equality Act 2010.
In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.
The accuracy of that guidance was challenged by For Women Scotland last year in a second case, referred to as FWS 2. One of the group’s arguments was that in issuing it the Scottish government had failed to respect the decision in FWS 1.
This time, the appeal court ruled against the group. For Women Scotland was then given permission to appeal to the Supreme Court in London.
Sitting with Reed will be his deputy, Lord Hodge. Both were formerly judges of the Scottish courts. They will be joined by Lord Lloyd-Jones and the two female members of the court, Lady Rose and Lady Simler.
Appellant’s arguments
For Women Scotland has published its 50-page written submissions, drafted by its counsel Aidan O’Neill KC and Spencer Keen. The lawyers say this case is about statutory construction — the meaning of legislation — and has nothing to do with human rights.
They begin by summarising the appeal court’s decision in FSW 1:
“woman” means a female of any age;
provisions allowing discrimination in favour of women “exclude those who are biologically male”;
Under the Equality Act, it would have been open to the Scottish parliament to include an equal opportunities objective aimed at encouraging representation of women on public boards. It would also have been open to them to do so separately for any other protected characteristic, including that of gender reassignment;
But that is not what Scotland’s parliament has done. It has expanded the definition of women to include some of those possessing another protected characteristic — those whose acquired gender is the female gender;
By incorporating transsexuals living as women into the definition of “woman”, the Scottish legislation conflates and confuses two separate and distinct protected characteristics; and so
That definition can no longer stand.
Not only was the purported re-definition of “woman” beyond the legislative competence of the Scottish parliament, according to For Women Scotland’s lawyers, but the original statutory guidance issued in 2020 was also beyond the powers of ministers. It should have been struck down.
It follows, they say, that the current guidance is inaccurate and therefore unlawful. The Scottish government was wrong to say that the word “sex” in the Equality Act 2010 includes an acquired gender.
How does For Women Scotland reach that conclusion? This is its reasoning:
The Scottish legislation, taken together with the Equality Act, allows for positive action measures in favour of those sharing the protected characteristic of their “sex” as “women”.
In FWS 1 the appeal court said the Scottish parliament could not define “women” to exclude women who had the protected characteristic of gender reassignment and include men with that characteristic.
The revised guidance continues to maintain that “women” includes a class of men and excludes a class of women.
Parliament could never have intended legislation passed in 2004 and affecting a small proportion of the public to modify the meaning of subsequent legislation affecting just over half the population.
The Supreme Court should not uphold that conclusion in the absence of clear words.
Statutory interpretation requires section 9 of the Gender Recognition Act to be read in full, its lawyers add.
Section 9(1) says:
Where a full gender recognition certificate is issued to a person, 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).
But section 9(3) says:
Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation.
So, the lawyers argue, subsection (1) is not
some free-standing general interpretative principle to the effect that when the word “sex” is used in any enactment (whether passed before or after an individual’s gender recognition certificate has been issued) it is to be interpreted as meaning the mutable bureaucratic categorisation of “certificated sex” (whatever it says in an individual’s current birth certificate either as altered under the Gender Recognition Act or as originally issued) rather than being a reference to the immutable reality of what, in fact, an individual’s sex is.
I should explain that the term “certificated sex” is used by For Women Scotland to mean the sex recorded on an individual’s current birth certificate. Under the Gender Recognition Act a person with a gender recognition certificate may obtain a birth certificate reflecting that individual’s acquired gender. So “certificated sex” means the sex recorded on the original certificate or on any subsequent replacement.
The lawyers continue:
While it is clear that in the event of any conflict, the provisions of a later statute (such as the Equality Act 2010) take precedence over those of an earlier statute (such as the Gender Recognition Act 2004) the issue before this court in this appeal is not about implied repeal but instead whether the presumption otherwise set out in section 9(1) of the Gender Recognition Act 2004 has been expressly disapplied in relation to the Equality Act 2010 by virtue of section 9(3) of the Gender Recognition Act 2004.
They conclude:
the meaning of the terms “sex”, “man” and “woman” in and throughout the Equality Act is always and only a reference to the facts of immutable biological criteria;
the issuing to an individual of a full gender recognition certificate under the Gender Recognition Act in the acquired gender of “female” does not result in that individual thereby falling within the definition of “woman” under the Equality Act;
the issuing to an individual of a full gender recognition certificate under the Gender Recognition Act in the acquired gender of “male” does not result in that individual thereby falling outside the definition of “woman” under the Equality Act; and
on a proper interpretation of both the Equality Act and Gender Recognition Act, the revised statutory guidance issued by the Scottish ministers… is unlawful, having regard to the limits imposed on the Scottish ministers’ powers, notably their devolved competence under the Scotland Act 1998.
Scottish government’s arguments
For the Scottish government, Ruth Crawford KC and Lesley Irvine will urge the Supreme Court to dismiss the appeal and uphold the Inner House ruling in FWS 2.
They argue that he term “woman” in the Scottish legislation — which the act itself does not define — includes a person issued with a full gender recognition certificate in the acquired gender of “female” and excludes a person issued with a full certificate in the acquired gender of “male”.
In written submissions, the government says its guidance is within its “competence” — the powers devolved to it by Westminster — and is lawful.
It accepts that “equal opportunities” are reserved to the UK parliament under the Scotland Act 1998 (see section L2 of part II of schedule 5). But there is an exception, introduced in 2016, allowing the Scottish parliament to legislate for
equal opportunities so far as relating to the inclusion of persons with protected characteristics in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions…
This is referred to as the “public boards exception to the L2 reservation”. What the court has to decide is whether the statutory guidance comes within that exception.
That, in turn, depends on the meaning of the Gender Recognition Act, which applies across the United Kingdom. The wording of section 9 makes it into a “dual-facing, general provision of statutory interpretation”, applying to both previous and subsequent legislation — subject to any contrary provision in that act or other legislation.
According to the Scottish government, there is a statutory presumption that a person’s “sex” — as well as their “gender” — changes as a matter of law on being issued with a full gender recognition certificate.
It follows that is that the “gender representation objective” in the Scottish legislation can be achieved by appointing a person who has been issued with a full gender recognition certificate in the acquired gender of “female” (as well as a woman without a certificate of any type), and cannot be achieved by appointing a person who has been issued with a full certificate in the acquired gender of “male” (or by appointing a man without a certificate of any type).
This is how Dr Michael Foran summarises this argument on his Substack:
The central thrust of the Scottish government’s submissions is that section 9(1) of the Gender Recognition Act places a general interpretative obligation to presumptively read references to sex in law as meaning certificated sex, not biological sex.
This interpretative presumption applies to the Equality Act unless provision has been made to the contrary…
It is the Scottish government’s argument that the definition of “man” and “woman” in the Equality Act does not constitute provision made for the purposes of section 9(3) of the Gender Recognition Act but is rather subject to the general interpretative presumption in section 9(1) of the Gender Recognition Act.
Comments
Foran, a lecturer in public law at the University of Glasgow, adds these comments:
In my view, nothing can be inferred from the use of the term “sex” in section 9(1) of the Gender Recognition Act beyond the generally accepted point that sex and gender are used interchangeably in UK law. Any attempt to do more, either to support the claim that parliament intended section 9(1) of the Gender Recognition Act to apply to discrimination law — or to support the claim made by For Women Scotland… that what parliament was focusing on here was an “acquired gender” which is somehow distinct from sex — must fail…
The fact that a person’s acquired gender has the effect that their sex becomes legally that of a man or a woman in those areas affected by section 9(1) of the Gender Recognition Act cannot be ignored. In addition, too much case law presupposes the interchangeability of the terms “sex” and “gender” to presume that anything stands or falls on the fact that the Gender Recognition Act contains either a reference to “acquired gender” or “sex”.
The fact that a gender recognition certificate changes a person’s legally recognised sex for some but not all purposes is our starting point. All else that follows must explain how and why section 9(1) of the Gender Recognition Act does or does not apply to a particular area of law. That cannot be done by begging the question and smuggling a conclusion into a starting premise.
Lawyers will read Foran’s detailed commentary with interest. The rest of us will have to wait and see whether the justices can cut through the confusion.
Their target must be to reconcile well-meaning objectives that appear to be irreconcilable and produce a judgment that that is both principled and practical. It’s quite a challenge.
When MPs voted on the GRA it was under the simple understanding that its intent was to provide people with a GRA full recognition under law in their new sex. They were briefed by officials that the birth certificate change was a 'legal fiction' employed elsewhere in law (e.g. in company law). There were obvious and sensible caveats, such as access to the original birth certificate by the police if required and justified. If people with a GRA were now to be excluded from a basic function such as representing their 'new sex', then the intent of the legislation would surely be fatally undermined?
The link in the paragraph beginning "This time, the appeal court ruled against the group" does not work. Perhaps you might be able to check the target and amend?