Introduction

The case of For Women Scotland Ltd v Scottish Ministers ([2023] ScotCS CSIH_37) represents a significant judicial examination of the interplay between gender recognition and equality legislation in Scotland. The petitioner, For Women Scotland Limited, challenges the revised guidance issued by the Scottish Ministers regarding the definition of "woman" under the Gender Representation on Public Boards (Scotland) Act 2018. Central to this case are the interpretations of "sex" and "gender" within the Equality Act 2010 (EA) and the Gender Recognition Act 2004 (GRA).

Summary of the Judgment

The Scottish Court of Session's Second Division upheld the revised guidance issued by the Scottish Ministers, which incorporates individuals holding a full Gender Recognition Certificate (GRC) into the definition of "woman" for the purposes of the 2018 Act. The petitioner argued that this approach conflates distinct protected characteristics under the EA, potentially undermining protections against sex discrimination. The court, however, concluded that "sex" under the EA includes the acquired gender for those with a GRC, aligning with the provisions of the GRA and maintaining consistency without rendering the EA unworkable.

Analysis

Precedents Cited

The judgment extensively references prior cases, notably FWS 1 and Fair Play for Women Ltd v Registrar General for Scotland (2022 SC 199), which addressed the definitions and protections related to gender reassignment and sex within the EA. Additionally, landmark cases such as Goodwin v United Kingdom (2002) and Bellinger v Bellinger (2003) provided foundational context surrounding the GRA's intent and application.

Legal Reasoning

The court's reasoning centered on statutory interpretation, specifically how the EA and GRA coexist without conflict. It emphasized that the GRA's broad definition of "sex" as encompassing acquired gender should be harmonized with the EA's protective measures. The Lord Ordinary determined that the revised guidance does not conflate protected characteristics but rather appropriately applies the GRA's provisions within the EA framework. The court addressed the petitioner's arguments by delineating between general and specific legislative intents, ensuring that exceptions within the EA (e.g., for armed forces, single-sex services) are consistent with the overall interpretation of "sex."

Impact

This judgment reinforces the legal recognition of acquired gender under equality legislation, ensuring that individuals with a GRC receive sex-based protections aligned with their recognized gender. It clarifies the non-conflation of gender reassignment and sex as separate protected characteristics, thereby strengthening the anti-discrimination framework. Future cases involving the intersection of gender recognition and equality protections will likely reference this decision, promoting consistency and clarity in legal interpretations.

Complex Concepts Simplified

Conclusion

The Court of Session's decision in For Women Scotland Ltd v Scottish Ministers upholds the lawful interpretation of "woman" under the EA to include individuals with a GRC, as prescribed by the GRA. This ruling underscores the compatibility of equality and gender recognition laws, ensuring that transgender individuals receive appropriate legal protections without undermining safeguards against sex discrimination. The judgment sets a clear precedent for future legal interpretations, fostering an inclusive and equitable legal landscape in Scotland.