Redefining "Woman": Scottish Court of Session Upholds Inclusion of Gender Recognition Certificate Holders under Equality Act 2010

Introduction

The case of For Women Scotland Ltd v The Lord Advocate ([2022] ScotCS CSOH_90) represents a pivotal moment in Scottish equality law, particularly concerning the definition of "woman" within the framework of public board representation. The petitioner, For Women Scotland Limited, challenged the revised statutory guidance issued by the Scottish Ministers under section 7 of the Gender Representation on Public Boards (Scotland) Act 2018. This legal challenge sought judicial review of the guidance, arguing that it unlawfully expanded the definition of "woman" to include transgender women holding a Gender Recognition Certificate (GRC), thereby infringing upon protected characteristics defined under the Equality Act 2010.

The primary parties involved include For Women Scotland Limited (the petitioner), the Scottish Ministers, the Lord Advocate, and interested parties such as the Equality and Human Rights Commission (EHRC). The crux of the matter hinged on whether the definition of "woman" in the Equality Act should include individuals with an acquired gender recognized through a GRC, thus intersecting with the Gender Recognition Act 2004.

Summary of the Judgment

The Scottish Court of Session, presided over by Lady Haldane, meticulously examined the statutory definitions and legislative interactions between the Equality Act 2010, the Gender Recognition Act 2004, and the revised statutory guidance issued in 2022. The court upheld the Scottish Ministers' revised guidance, affirming that the term "woman" within the Equality Act 2010 encompasses individuals who have acquired a female gender through a GRC. Consequently, the petition by For Women Scotland Limited was dismissed, reinforcing the lawful inclusion of transgender women holding a GRC within the scope of equality protections.

Analysis

Precedents Cited

Several key precedents and legislative frameworks influenced the court's decision:

Fair Play for Women Ltd v Registrar General for Scotland [2022] CSIH 7: Established that individuals with a GRC are to be recognized as having the sex indicated on their certificate for all purposes under the law, reinforcing their inclusion under protected characteristics.
Goodwin v The United Kingdom (2002) 35 EHRR 18: Influenced the creation of the Gender Recognition Act 2004 by mandating legal recognition of acquired gender to comply with the European Convention on Human Rights.
Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 24: Emphasized the importance of consistent and predictable statutory interpretation to ensure coherent legal outcomes.
Forensic Medical Services (Victims of Sexual Offences) (Scotland) Act 2021: Highlighted the necessity for clear definitions of sex in certain legal contexts, supporting the court’s view that definitions are context-dependent.

Legal Reasoning

The court employed traditional principles of statutory interpretation, prioritizing the plain and ordinary meaning of legislative language. Central to the court's reasoning was the interaction between the Gender Recognition Act 2004 and the Equality Act 2010. The court determined that section 9(1) of the 2004 Act explicitly states that a person’s sex becomes that of their acquired gender "for all purposes," which the court interpreted to include protections under the Equality Act 2010.

The petitioner argued that this interpretation conflated the protected characteristics of sex and gender reassignment, potentially undermining protections specifically afforded to biological women. However, the court found that while "sex" and "gender reassignment" are distinct protected characteristics, they are not mutually exclusive and can coexist without causing statutory ambiguity or conflict. Furthermore, the court rejected the petitioner's assertion that the 2010 Act implicitly repealed protections under the 2004 Act, citing the principle that more specific legislation doesn’t necessarily override general provisions when the purposes of both are harmonious.

The court also addressed concerns about potential legal "absurdities" that could arise from including GRC holders in the definition of "woman." By referencing existing legal frameworks and the need for proportionality in applying single-sex services, the court concluded that the revised guidance operates within lawful boundaries and does not render the legislation unworkable.

Impact

This judgment has profound implications for future cases and the broader landscape of equality law in Scotland. By affirming that individuals with a GRC are encompassed within the definition of "woman" under the Equality Act 2010, the court has reinforced protections against discrimination based on both sex and gender reassignment. This decision ensures that positive action measures aimed at increasing women's representation in public boards can lawfully include transgender women who hold a GRC, aligning equality law with contemporary understandings of gender identity.

Additionally, the ruling clarifies the legislative harmony between the 2004 and 2010 Acts, setting a precedent for interpreting overlapping statutes in a manner that upholds individual rights without creating legal inconsistencies. This coherence is essential for maintaining legal certainty and protecting the dignity and rights of transgender individuals in Scotland.

Complex Concepts Simplified

Gender Recognition Certificate (GRC)

A Gender Recognition Certificate (GRC) is a legal document issued under the Gender Recognition Act 2004 that formally recognizes an individual's acquired gender. Once issued, it changes the individual's legal sex to their acquired gender for all purposes, including legal protections against discrimination.

Protected Characteristics

Under the Equality Act 2010, protected characteristics are specific attributes or identities that are safeguarded against discrimination. These include, but are not limited to, sex, gender reassignment, race, disability, and sexual orientation. The Act ensures that individuals are not unfairly treated based on these characteristics in various aspects of public and private life.

Lex Specialis Derogat Legi Generali

This is a legal principle meaning "the law governing a specific subject matter overrides a law applying more generally." In this context, it implies that specific legislation (like the Gender Recognition Act) may take precedence over more general laws (like the Equality Act) when addressing particular issues.

Implied Repeal

Implied repeal occurs when a newer statute contradicts an older one, leading to the older statute being rendered inoperative to the extent of the inconsistency, even if not explicitly stated. However, the court determined that the Equality Act 2010 does not implyly repeal provisions of the Gender Recognition Act 2004.

Conclusion

The Scottish Court of Session's decision in For Women Scotland Ltd v The Lord Advocate solidifies the legal standing of transgender women holding a Gender Recognition Certificate within the protective ambit of the Equality Act 2010. By meticulously interpreting legislative language and harmonizing intersecting statutes, the court has reinforced the commitment to equality and non-discrimination. This judgment not only advances the rights of transgender individuals but also ensures that equality measures aimed at increasing female representation are both inclusive and legally sound. As societal understandings of gender continue to evolve, such judicial oversight ensures that the law remains both protective and adaptive, upholding the dignity and rights of all individuals.