Impact of the second judicial review

This is the first of two letters we sent to the Committee on Equalities, Human Rights and Civil Justice on August 30, 2022. The second on the Cabinet Secretary’s comments regarding single-sex exceptions to the law on equality is here.

We write with additional elements that we believe have a significant impact on the deliberations of the Gender Recognition Reform (GRR) Bill, both to clarify the term “woman” and the effect of the certificates Gender Recognition Agency (GRC), and to highlight that the Scottish Government is pursuing a legal case which is at odds with its defense of the GRR Bill.

The Inner House decision of the Court of Session of For Women Scotland v Lord Advocate and Scottish Ministers (2022) CSIH 4 made several important findings regarding the Equality Act 2010, namely that the incorporation of transsexuals living as women into the definition of woman confuses and confuses two separate and distinct protected characteristics (paragraph 39) and one definition of ‘woman’ which impinges on the nature of the protected characteristics is not within the legislative competence of the Scottish Parliament (paragraph 40). Further, any exception allowing the Scottish Parliament to make provision relating to the inclusion of women, as a protected sex characteristic, is limited to allowing provision to be made in respect of a ‘woman of any age’. Provisions in favor of women, in this context, by definition exclude those who are biologically male (paragraph 36).

This decision confirms that the protected characteristic of sex in the Equality Act refers to sex as a biological term. The fact that the Equality Act introduced the specific protected feature of sex reassignment into legislation has allowed the separate protected feature of sex to retain the common sense plain language approach that is embodied in the common law ( see the Corbett and Bellinger cases). This means that sex in the Equality Act is only and always a biological category, a position which is in no way changed by the Gender Recognition Act (GRA) 2004.

This is reinforced by provisions of the Equality Act which are gender specific, such as Part 5, Chapter 3 on equality of pregnancy and maternity where it is clear that the legislative intent is to refer to biological sex, and contains no less than twelve references. to “woman”.

The Attorney General for England and Wales recently upheld the Inner House decision and provided further legal clarification in his August 10, 2022 speech, which made extensive reference to biological sex when drafting the provisions of the equality law.

The Scottish Government chose not to appeal the tribunal’s judgment and at the appeal hearing Ruth Crawford QC, acting on behalf of the Lord Advocate and Scottish Ministers, told Lady Dorrian that she accepted the decision court would have the effect that the term ‘woman’ should be governed by the Equality Act.

We therefore do not know why the Scottish Government has revised the Statutory Guidance of the Gender Representation in Public Councils Act to include an addition to the definition of women in the Equality Act:

The meaning of “woman” for the purposes of the Act

2.12 There is no definition of “woman” in the law with effect from April 19, 2022 following the Court’s decisions of February 18 and March 22, 2022. Therefore, “woman” in the law has the meaning provided section 11 and section 212(1) of the Equality Act 2010. Further, under section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person stating that their acquired sex is female, the sex of the person is that of a woman, and when a full certificate of gender recognition has been issued to a person attesting that his acquired sex is male, the sex of the person becomes that of a man.

We have a pending judicial review claiming that these revised guidelines do not comply with the court’s decision and are therefore unlawful. The Scottish Government has repeated its previous error in law by incorporating transgender people living as women (although now limited to those holding a GRC) into the definition of woman, thus confusing and confusing two protected characteristics. The Scottish Government refused to remove the section referring to the GRA and said it understood an RCMP to change a person’s gender for the purposes of the Equality Act. It remains to be seen whether they believe a person’s biological sex changes upon receipt of an RCMP or whether they now dispute that the Equality Act refers to biological sex.

Leave has been granted for the judicial review and the date for the hearing on the merits has been set for November 9 and 10, 2022.

We believe that this case places the Committee in a very difficult position because until the court makes a decision, the proper relationship between the GRA and the Equality Act cannot be understood, nor can the consequences of legislative reform of the GRA. .

If the Scottish Government is correct that a person’s sex is changed in the Equality Act with an RCMP, then it follows that the statement to the committee by Cabinet Secretary Shona Robison that the draft GRR law “does not redefine what a man or a woman is”, is incorrect. Obviously, if men who hold a CRM (trans women) are included in the definition of woman (and women who hold a CRM (trans men) are excluded), then changing the circumstances in which a person is entitled to a GRC will also have the effect of changing the definition of women.

The GRR Bill proposes a significant change to the eligibility criteria for a GRC and will, for the first time, include people without a medical diagnosis of gender dysphoria and people between the ages of 16 and 17. RCMP. This diversification and expansion of RCMP holders compared to the current situation will significantly change who is counted in the definition of a woman.

Whether a person is defined as male or female is important to the proper functioning of equality law across a wide range of provisions, including single-sex exceptions, equal pay claims and access to maternity rights, and we fear that this is underestimated. and misunderstood by the Scottish Government. This is, of course, of vital importance because any action taken by the Scottish Parliament must be careful not to alter any of the protected characteristics, including the definition of woman, lest she stray into questions reserved.

The Scottish Government seems hopelessly confused and inconsistent when it comes to the definition of women, with at least three different definitions currently in use in various pieces of legislation and policy. Contrary to the position described above, he fully understood that sex was biological when SNP MSPs voted in favor of the Lamont Amendment to replace gender with sex in the Medical Services Bill. forensics (victims of sexual offences) to secure a request from a female medical examiner resulted in the provision of exactly that, and not a male with a GRC (transwoman).

At the other extreme, the Cabinet Secretary again contradicted the Scottish Government’s current position by saying that an RCMP is not necessary for a man to fall under the definition of woman and access single-sex services to gender, when she told Parliament that “the 2010 Act does not apply exceptions specifically to toilets and changing rooms. Trans people can and do use them now whether or not they have a GRC , and they have been using them for many years This does not recognize gender-segregated tenure in schools and workplaces legislation as well as specific examples in the Explanatory Notes to the Equality Act – we have written to you separately on this.

A recent public consultation by the Scottish Government on the Review of funding and operationalization of services to address violence against women and girls redefines a woman as “anyone who identifies as a woman”. Not only does this circular statement blatantly ignore the Inner House decision, it fails to acknowledge that funding for women’s services can only be allocated through affirmative action measures in Section 158 of the equality and must therefore respect the protected characteristics. Our letters to the Review Group and Scottish Ministers asking for the consultation to be withdrawn and reissued with a correction received no response. We further note that the Scottish Government is only accepting applications for funding from individual women’s services on producing an LBTI inclusion policy that includes transwomen. Again, this does not depend on the outfit of an RCMP.

In summary, we believe that the revised statutory guidelines for the Gender Representation on Public Boards Act are unlawful. The Scottish Government thinks otherwise and maintains that a GRC changes a person’s gender for the purposes of the Equality Act. Not only does this dissociate the biological sex of women from the gender-specific provisions of the Equality Act, but it also means that GRA reform also carries a serious risk of encroaching on reserved matters. The Scottish Government has a history of inconsistency and a lack of understanding of both the definition of women and how equality law works. All of this leaves the Committee exposed, trying to make good law in the midst of live legal action, the outcome of which materially affects reform.

This letter is now posted on the Committee’s website.