This article is an academic analysis of the law from the perspective of the author. It should not be taken as legal advice.
For Women Scotland have lost an appeal in which they argued that women with a GRC should not be considered of the female sex for the purposes of the Equality Act 2010. The judgment of the Inner House of the Court of Session – Scotland’s highest court – held that a trans woman with a GRC falls within the definition of ‘woman’ for the purposes of section 11 of the Equality Act 2010, which protects against discrimination on the basis of sex.
The For Women Scotland case was brought in response to guidance issued under the Gender Representation on Public Boards (Scotland) Act 2018, which defined ‘woman’ for the purposes of the Act as including trans women in possession of a Gender Recognition Certificate. For Women Scotland, an anti-trans rights campaign group, challenged this guidance. Sex Matters were also granted leave to intervene, by way of written submissions only.
The Court held that, despite the appellants’ claim that the Gender Recognition Act 2004 was ‘redundant’ and ‘merely symbolic’ following the legalisation of same-sex marriage, but rather a ‘far-reaching enactment’ which, in ‘unequivocal terms’, provides that the acquisition of GRC changes a person’s sex and gender for all legal purposes.
Importantly, the Court emphasised that many of the older cases on legal sex – on which anti-trans campaigners continually seek to rely – ‘are now of limited application’ in light of the Gender Recognition Act. The Court highlighted that the decision of the UK Parliament to enact the GRA, in the wide terms which it did, points away from a ‘strict biological’ definition of sex and gender. The Equality Act 2010 was drafted in full knowledge of the Gender Recognition Act and its effects, and thus must be understood to include trans women with a GRC within the definition of ‘woman’ for the purposes of section 11. The 2018 guidance was therefore lawful.
The For Women Scotland case’s judgement also included criticism of Baroness Falkner’s letter on behalf of the Equalities and Human Rights Commission, in which she recommended that, for the purposes of the Equality Act 2010, sex should be defined as ‘biological sex’. As I have previously outlined elsewhere, this proposal would amount to a significant rollback of trans rights, likely in violation of the European Convention on Human Rights. Moreover, the EHRC has admitted it has no definition of ‘biological sex’, despite this forming this concept forming the core of its recommendation. Following this proposal, numerous LGBT+ organisations signed a letter to the Global Alliance of National Human Rights Institutions to highlight the EHRC’s lack of political independence and right-wing institutional capture.
The judgment referred to a particular passage of the letter, on which the appellants relied, concerning sexual orientation, which argued that defining sex under the Equality Act 2010 inline with legal sex was problematic, because it meant trans women with a GRC could become ‘legally lesbian’. The judgment stated this argument was ‘not… easy to follow’, that there was ‘no such things as being “legally lesbian”’ and that they could not identify a problem in relation to sexual orientation ‘which would require that sex be referable to biology alone’. This criticism should be considered highly embarrassing to the EHRC.
The decision of the Court that the definition of ‘women’ in the Equality Act 2010 includes trans women with a GRC is binding upon all courts in Scotland, and is likely to be significantly influential in Courts in England and Wales. To challenge the decision, For Women Scotland would need to appeal to the UK Supreme Court. The case amounted to a serious loss for anti-trans activists, who have insisted that sex discrimination under the Equality Act 2010 should be based solely on ‘biological sex’.
In response to The For Women Scotland case loss, Sex Matters, alongside many other ‘gender critical’ organisations – including Genspect, from whom concerning far right and anti-trans discord discussions were recently revealed – have written a letter to the Prime Minister, Rishi Sunak, as well as the Minister for Women and Equalities, Kemi Badenoch. The letter raises concerns about the judgment and its implications, emphasising that it would not bar ‘rapists’ from becoming women. This casual elision of trans women with rapists is a now familiar transphobic trope, exhibited recently by JK Rowling when she described one Twitter* user – who had argued that trans women should not be automatically assumed to be predators when they are statistically more likely to the be the victims of sexual violence – as a ‘rapists’ rights activist’.
The letter states that they do not believe the outcome of the judgment is what Parliament intended, and that the decision could still be challenged. However, they argued that ‘it is not right that thousands of individual women and men may again have to fundraise to take this battle on to the Supreme Court’. The letter also criticises the EHRC for failing to bring such litigation themselves. The letter therefore demands that a proposal for secondary legislation is published, which would ‘clarify’ the relationship between the Equality Act 2010 and the Gender Recognition Act 2004. It further demands that a scrutiny committee is formed to consider whether the GRA is ‘consistent with women’s rights’ and whether it needs to be ‘reformed’, as well as a public inquiry ‘erosion of protection for single-sex services, spaces and data, and the impact of this on safeguarding’. The clear consensus amongst ‘gender critical’ groups thus seems to be towards the (functional) repeal of the Gender Recognition Act, and its impact on determining legal sex.
However, in usual form, gender critical activists have attempted to play up the Court’s decision as a victory. This follows a similar approach taken following Allison Bailey’s failed claim against Stonewall, which many attempted to turn into a rhetorical victory. Efforts have focused on one particular element of the judgment, which stated:
“those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex”
Sex Matters, in their statement on the judgment, for example, state they ‘welcome’ this comment. Some ‘gender critical’ activists have gone so far as to claim that the judgment therefore bans all trans women without a GRC from accessing all single-sex spaces, including public women’s bathrooms.
It is true this is a disappointing comment, considering many in the trans community are unable to or are afraid to obtain a Gender Recognition Certificate. However, it is important to understand the comment in context.
Firstly, it is vital to note that this comment is an ‘obiter’ one. What does that mean? Well, within the legal systems of England and Wales, and Scotland, only certain elements of legal decisions are binding. These are the parts required to reach the ultimate judgment, and are known as the `ratio decidendi’. Everything else is ‘obiter dicta’, which can be influential or persuasive to other courts, but is not binding.
In this case, the question to be answered was ‘is the definition of ‘woman’ adopted in the 2018 guidance lawful’. To decide this, the Court had to determine whether the guidance was infringing on a reserved matter – something that only Westminster, not Scotland, is allowed to determine. The answer to this question hinged on whether the definition in the 2018 guidance was compatible with the Equality Act 2010 definition, namely, whether a trans woman with a GRC was of the female sex for the purposes of the 2010 Act. Deciding this question did not require the Court to conclude whether other trans women could be considered of the female sex for the purposes of the Act – only whether those with a GRC could. In my assessment, this is the ‘ratio’ of the decision. Any comment on the status of trans people without a GRC is therefore ‘obiter’ and not binding.
However, even if we were to accept that the comment made in the judgment was accurate, this would not have the implications that some ‘gender critical’ activists are suggesting in prohibiting all access to single sex spaces without a GRC. This is made clear in the judgment itself, just after the quote from the judgment given above:
”Clearly, paragraph 28 might still have some utility in the case of those who do not hold a GRC, for example, where a service provider does not require proof of sex by presentation of a birth certificate or GRC, yet still refuses access to a person, which can only
be on the basis of their gender reassignment.”
Paragraph 28 concerns the exception to discrimination on the basis of gender reassignment in relation to single sex spaces, which allows such discrimination where it can be shown to be a proportionate means of achieving a legitimate aim.
This section of judgment clearly outlines that any attempt to exclude trans people, even without a GRC, from single sex spaces will amount to unlawful discrimination, unless i) all users of the service are asked to prove their sex via a birth certificate or GRC, or ii) the paragraph 28 exception applies. It is therefore plainly wrong to argue that the For Women Scotland case judgment allows for automatic exclusion of eg trans women without a GRC from public women’s bathrooms.
In my view, the uniform exclusion of trans women without Gender Recognition Certificates from single sex spaces is also incompatible with the UK’s obligations under the European Convention on Human Rights. In 2002, a British trans woman, Christine Goodwin, brought a case against the United Kingdom at the European Court of Human Rights, concerning the UK’s treatment of her as a trans woman. The Court ruled that, in particular through its failure to provide legal recognition to Goodwin’s gender reassignment, the UK has violated her Article 8 right to private life. Following this decision, Parliament enacted the Gender Recognition Act 2004, allowing trans people to have their acquired sex recognised “for all purposes”, upon the granting of a Gender Recognition Certificate.
However, the acquisition of a Gender Recognition Certificate is not a simple process. It requires, amongst other things, the provision of two years worth of documentation evidencing the use of a name, gender marker, or title which ‘matches up’ with their affirmed gender. The applicant must also make a statutory declaration asserting that they have “lived as” their acquired gender for a period of at least 2 years preceding application. A statutory declaration is a very serious matter. Knowingly making a false claim within a statutory declaration is a criminal offence under the Perjury Act 1911, for which an offender can be sentenced up to 2 years in prison.
By asserting that trans people without a GRC have no right to access single-sex spaces, they are thus necessarily forced into a Catch 22. Trans people must swear that they have lived in their acquired gender for two years preceding their application, but are prohibited from meaningfully doing so. A trans woman without a Gender Recognition Certificate would be forced to use male bathrooms every day at work, the male changing room at the gym she uses each evening. How can she honestly say she has lived wholly in her acquired gender for two years when she is forced to present herself as male so frequently? Terrifyingly, this may even be used against her when trying to obtain a GRC, and by those she encounters to insist she is really a man.
This seems clearly incompatible with recent European Court of Human Rights jurisprudence. In a recent 2022 case, AD and others v Georgia, the Court emphasised that in order to avoid violating Article 8, States must provide “quick, transparent, and accessible procedures for changing legal sex”. A system which requires applicants to live as their acquired sex for two years, whilst denying them access to spaces congruent with that acquired sex, would seem clearly in breach of this requirement.
The implication of banning trans people without a GRC from single sex spaces is for trans people to exist for two years in a state of limbo. For example they must have documentation stating that they are female, they must attempt to “live” as female, they must provide evidence that they use a ‘female’ name and title. At the same time, they must use male spaces, when doing so, they are likely to be forced to disguise their transness (if they are able) for their own safety. In spaces, such as the workplace, where they are known only as women, even this becomes impossible. These women face humiliation, shame, and potential risk of assault.
This state of affairs is clearly incompatible with trans human rights, as is evident from a proper reading of the judgment in Goodwin v UK. Although “gender critical” campaigners have wrongly tried to downplay the significance of this judgment, it is evident that the mere existence of a process of legal recognition of gender is not sufficient to respect the Article 8 rights of trans people. Rather, the necessity of such a system of legal recognition itself derives from the violations of Article 8 caused by failing to treat trans people as their acquired gender.
In Goodwin, the Court specifically condemns as “no longer sustainable” and “unsatisfactory” the situation in which trans people are forced to live in an “intermediate zone as not quite one gender or the other”. The judgment notes the “stress and alienation arising from a discordance” between trans people’s position in society and status in law. This places trans people in an “anomalous position” in which they “may experience feelings of vulnerability, humiliation and anxiety”. It was on this basis that the Court concluded a violation of Article 8. It is difficult to see how a requirement that trans people “live” as their acquired gender, whilst continuing to treat them as their gender assigned at birth for serious aspects of their daily life, would not place trans people in a similar and unacceptable “intermediate zone”. This is incompatible with the requirements of Article 8 which formed the basis of the reasoning in Goodwin.
From the above analysis, we can conclude that a banning trans people without a GRC from all single sex spaces would be in violation of their human rights. There are two possible solutions to this problem.
The first is to change the gender recognition process, such that trans people do not have to endure two years of unacceptable limbo. Instead, a GRC could be granted immediately, coinciding with their social transition. However, this solution has its own problems. Firstly, many trans people are unwilling to obtain a GRC certificate, fearing that the existence of their name on a centrally held list of trans people could be weaponised against them. This itself has privacy implications. Furthermore, attempts to simplify the gender recognition process have faced serious backlash from anti-trans campaigners. Legislation reforming the gender recognition process in Scotland was prevented by the UK government. This does not seem like an adequate or likely answer.
The second solution is simply to maintain the status quo, as outlined in the Statutory Codes of Practice relating to the Equality Act 2010. This guidance provides an “authoritative, comprehensive and technical guide to the detail of law”. This guidance states that providers of single or separate sex services should treat trans people “according to the gender role in which they present”. Provisions within the Equality Act 2010 already exist to exclude people with the protected characteristic of gender reassignment from such spaces, but only where the provider can demonstrate that to do so is a proportional means of achieving a legitimate aim. This seems the most obvious solution.
In conclusion, trans people should ignore claims that the For Women Scotland judgment allows for the banning of trans people without a GRC from all single-sex spaces. This claim is clearly incompatible with the actual language of the judgment, as well as the UK’s obligations under the European Convention on Human Rights. We should instead celebrate the judgment’s clear statement that trans people with a GRC become their acquired sex for the purposes of the Equality Act 2010.
*The website commonly known as Twitter, now called X
