Scottish ministers’ definition of ‘woman’ not unlawful

Lady Haldane said that the present case was the second challenge brought by the petitioner. In the earlier proceedings, the court declared that the proposed definition in the 2018 Act of “woman” as including “transgender women” purported to expand the definition of protected characteristics within the Equality Act 2010 and thus impinged upon a reserved matter and was beyond the legislative competence of the Scottish Parliament: see For Women Scotland v Lord Advocate (The Times March 18, 2022; 2022 SC 150).

Following that decision the Scottish ministers produced revised statutory guidance. The revised guidance provided that the definition of “woman” was that in the Equality Act 2010. It also provided that: “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” [sic].

The petitioner’s submission that the decision in For Women Scotland v Lord Advocate had authoritatively determined that “sex” for the purposes of the 2010 Act meant only biological sex could not be accepted. The present case raised a different issue. The question was whether the guidance was correct in law when it purported to include those with a male-to-female gender recognition certificate within the definition of “woman” in the 2010 Act.

Section 9 of the 2004 Act provided that: “(1) 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 female gender, the person’s sex becomes that of a woman).”

The petitioner’s argument that the phrase, “for all purposes”, did not bring those with male-to-female gender recognition certificates within the definition of “woman” in the 2010 Act fell to be rejected. The language could scarcely have been clearer. The 2004 Act was not intended to have a restricted scope. It had not been passed, as the petitioner contended, merely to address the issue of “same sex” marriage, which had been legally impermissible when the 2004 Act was enacted.

The second broad proposition was that the 2004 Act was in conflict with the 2010 Act, which had consolidated anti-discrimination legislation and created certain key “protected characteristics” including that of sex. The contention was that the only way the 2010 Act (and indeed any other related legislation) could be made to work was if the definition of woman in that Act was taken to mean biological woman. That argument was flawed for several reasons.

In the first place, the word “biological” did not appear in the definition. It would have been entirely open to the drafters of the legislation to put the matter beyond doubt by including that adjective or descriptor, but they had not. In the second place, and perhaps self-evidently, the 2010 Act was drafted in full awareness of the 2004 Act and its ambit. The explanatory notes to the 2004 Act stated, among other things, that upon the issuing of a gender recognition certificate, the person’s gender became for all purposes the acquired gender, so that an applicant who was born a male would, in law, become a woman for all purposes.

She would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975. Thus when consolidating anti-discrimination legislation, including the 1975 Act and providing a definition of terms such as “sex” and “woman” the drafters of the 2010 Act did so with the benefit of that knowledge.

Lest that proposition be controversial in any way, the 2010 Act had, for example, repealed section 19 of the 2004 Act but had not sought in any way to amend or repeal section 9(1) of the 2004 Act.

In the third place, the petitioner’s argument erroneously conflated, in the sense of treated one as a subset of the other, possession of a gender recognition certificate with the protected characteristic of gender reassignment in terms of the 2010 Act. The plain reading of the definition of gender reassignment described a much broader concept and process than did the definition of the effect of obtaining a gender recognition certificate in terms of section 9 of the 2004 Act.

Thus whilst a person in possession of a gender recognition certificate might share the protected characteristic of gender reassignment, their sex for the purposes of the 2010 Act was female, or male, according to the terms of their gender recognition certificate.

Such an approach did not offend against the contention that sex and gender reassignment were separate and distinct protected characteristics. They were. But whilst they were separate and distinct characteristics, they were not necessarily mutually exclusive in the context of the 2004 and 2010 Acts, read together. The two Acts had different purposes, as was clear, if nothing else, from their titles.

Consequently, in the context of the 2010 Act “sex” was not limited to biological or birth sex, but included those in possession of a gender recognition certificate obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex. Such a conclusion did not offend against, or give rise to any conflict with, legislation where it was clear that “sex” meant biological sex.

Law Agents: Balfour & Manson LLP; Scottish Government Legal Directorate; Drummond Miller LLP.