For Women Scotland legal challenge to Gender Representation on Public Boards Act: putting the case in context

ForWomenScotland (FWS) announced earlier this week that they are seeking leave to appeal against the judgement in their case against the Scottish Government. Just as the Scottish Parliament went into recess for the election, Lady Wise found that the Scottish Government had acted within its powers in defining “woman” in the Gender Representation on Public Boards Act 2018 as a category of people based on self-declaration, rather than being based on sex, as defined in the Equality Act 2010. 

The approach taken in the 2018 Act means that some people who would count as women under the Equality Act are excluded from benefitting from the Act’s provisions, while some who would not be defined as women under the Equality Act do benefit.

In the course of the case, Scottish Government counsel stated that “Scottish Government policy was that transgender women are to be treated as non-transgender women unless to do so would be prohibited by law” (p.22 of the judgement) and that “the Scottish Government’s position was that ‘transwomen are women’” (p.32). That position does not appear to have been set out so plainly before, and its implications in multiple settings remain to be fully explored and explained.

This blog considers how this case relates to the wider debate about defining what a woman is in politics, policy and law, including the recent court decision on the census in England and Wales.

Background to the case

In 2019 the Scottish government consulted on its draft guidance on how the Gender Representation on Public Boards Act should be implemented. It published its analysis of the consultation responses in April 2020. We wrote about the issues raised by the 2018 Act in Scottish Legal News. The draft guidance included advice on how public bodies should put into practice the definition of “woman” and set out several examples of ‘evidence that the person was continuously living as a woman’:

“always using female pronouns; using a female name on official documents such as a driving licence or passport, or on utility bills or bank accounts; describing themselves and being described by others in written or other communication using female language.”

This approach was subsequently confirmed in its final guidance, issued in June 2020. This also stated that public bodies should not require applicants to produce any evidence of ‘continuously living as a woman’.

FWS’s explanation of their case is here. We also wrote about the case in The Times earlier this year. The central challenge raised by FWS was that the powers used by the Scottish Parliament to bring in the 2018 Act only allow it to take steps to improve the representation of women for this group as it is defined in the Equality Act (“a female of any age”), subject possibly to the provisions of the Gender Recognition Act 2004, under which a person may change their sex for general legal purposes, if they meet certain criteria.  FWS therefore argued that using self-declaration for defining the group benefitting from the 2018 Act was outside legislative competence (not the Act as a whole, as some commentary mistakenly suggested).

Wider context: the census judicial review

This case follows Fair Play for Women’s success in a judicial review last month against the Office of National Statistics. The ONS had planned to guide individuals completing the census in England and Wales to answer the sex question based on a form of self-declaration. FPFW argued that the ONS did not have powers to do this under the Census Act 1920. Having been ordered to remove this guidance in an interim hearing, where the judge noted that FPFW had  “a strongly arguable case”, ONS conceded the case on 16 March. The guidance to sex question was amended to ask respondents to answer using what is on their birth certificate or, where, applicable, a Gender Recognition Certificate. In the light of this outcome, the Northern Irish census authority decided to change their guidance, to bring it into line with the revised guidance for England and Wales. In Scotland, now an outlier, the National Records for Scotland are currently considering the implications of the case for Scotland’s 2022 census. 

The central issue in the FWS case is the same as the one raised by FPFW: did a public authority have the power under the law to introduce a definition of sex based on a form of self-declaration?  In the FWS case, the issue was whether the Scottish Parliament and Scottish Government were tied to the definition in the Equality Act.  The FPFW census case was instead about what definition of sex could plausibly be read into the Census Act.

In the census case, the ONS conceded that the usable definition of sex was bounded by “legal sex” (the case did not examine whether the Census Act would further allow a narrower definition to apply, of sex registered at birth only). In the FWS case, starting from a different legal point, the outcome was different: Lady Wise took the view that the framing of the Scotland Act in effect left scope for the Scottish Government to put in place positive discrimination measures for women as a self-declared group, by including people with the protected characteristic of gender reassignment who were “living as women”, but excluding those with the characteristic of gender reassignment who were not.  The case hung on the meaning of the “exception” in the Scotland Act which allows the Parliament limited ability to legislate in an area which is generally reserved. Lady Wise noted that “Had the exception been restricted to ‘the inclusion of woman as defined in the Equality Act 2010’ on Scottish public boards the conclusion on this point might be different.” (p.42)

The wider context again: policy capture

The wider context for both decisions is the process by which public bodies have moved to replace sex with self-declared gender identity in multiple contexts, generally with little or no scrutiny. We wrote about this process of policy capture in Scottish Affairs in 2019, in relation to decision-making on the census and on prisons in Scotland.    

In an open letter to trustees and chief Executives, FPFW have now written in more detail about their own experiences of trying to be heard in discussions on the census and other topics, and the one-sided processes they have observed. They comment:

… it’s the role of staff in public bodies not to be unduly influenced. It’s up to you to insist on and facilitate the open and transparent process of consultation during policy making. Policy should not be made in back rooms.

Reflecting on these events in The Times, journalist Janice Turner observed how the census case ‘expose[d] the depth of civil service policy capture’:

“Self-ID on the census was supported by the ONS, the Cabinet Office, NHS England and even the Equality and Human Rights Commission, whose whole purpose is to uphold “protected characteristics” under the 2010 Equalities Act, including sex. These are public bodies which all pay to participate in Stonewall’s diversity champions programme. Thus taxpayers are funding a lobby group to pressure the government to undermine a law it opposes but has failed to change by open democratic means; a law which protects women. Policy of this magnitude should not be made in back rooms, where transparency is impossible.”

The process behind the Public Boards Act 2018 was somewhat different, involving more public-facing discussion as the legislation developed. The initial government consultation suggested that the definition of ‘woman’ in the Bill should incorporate those “who identify as female”. The consultation received 101 responses, mainly from organisations (35 from individuals). The reference to those who “identify as female” was dropped before the Bill was introduced, apparently due to perceived technical issues. No-one responding to the Parliament’s call for evidence therefore had reason to raise the scope of the planned definition of “woman”, except to seek to alter this. A definition based on self-identification was reintroduced as a Stage 2 amendment, after the Committee was asked to re-include it by the Scottish Trans Alliance, and the Scottish Government worked with an opposition MSP to develop the amendment. There was no formal opportunity at that point for anyone else to raise concerns with MSPs.

The change was picked up soon after it was made by independent researcher Susan Sinclair, who was the first to draw wider attention to the move to self-declaration in the Bill, and who detailed the process through which it had been amended. By the time the Scottish Government consulted on the detailed implementation of the Act in April 2019 awareness of the issue was wider (this consultation received 310 responses, 272 from individuals), and many of those responding expressed concerned about the move to self-declaration, but by then the Act had been passed.

A further parallel can be drawn here, between the process for the 2018 Act, and the freedom of expression provision in the Hate Crime and Public Order (Scotland) Bill, introduced only at Stage 3. In both cases, the later stages of the parliamentary process provided an element of visibility to decision making, but in essence the parliament was endorsing the product of plans worked up in discussion between government and those advocates of prioritising gender identity over sex with which it has a particularly close relationship.

Courts, parliament and the policy process

Both the FWS and FPFW court cases highlight how public authorities have shifted in recent years to replace sex with self-declared gender identity, and raise questions about how they have come to do so. The ONS conceded that it failed to understand its legal obligations. For the Public Boards Act, the court by contrast found that the Scottish Government and by extension the Scottish Parliament acted within their legal powers, but with FWS’s lawyers arguing that they believe the decision is open to challenge, this argument is not yet over.

The scale on which public authorities have moved to replace sex with self-declared gender identity mean that more such questions beckon. The most immediate of these relates to Scotland’s 2022 census. In February 2020, in correspondence with the Culture, Tourism, Europe and External Affairs Committee Convenor Joan McAlpine, the Cabinet Secretary for Economy, Fair Work and Culture Fiona Hyslop stated

“the Registrar General will conduct a census that has a binary sex question with guidance that provides for a self-identification basis of response if required and I support this approach for Scotland’s Census 2021.”

If the Scottish Government wishes to persist with this approach, it would appear now to have to plan for the choice of legislating quickly after the election in May to amend the Census Act 1920, or the risk a similar legal challenge to that faced by the ONS. As noted above, this is now under review by the National Records for Scotland.

Also on the horizon is the final version of draft guidance issued for comment last December by Scotland’s Chief Statistician, which suggested that public authorities in Scotland should cease gathering data on sex, except in rare circumstances, and instead collect only information on self-declared gender identity. We and others – including 91 social scientists with expertise in survey and administrative data – have raised substantial concerns about the potentially damaging effects of this.  

The cases against ONS and the Scottish Government both also illustrate the ability of campaigners to raise substantial sums, in multiple small donations, to bring legal challenges against public authorities in this area. Each has raised over £100,000, mainly through a large number of individual donations. In the census case, costs were awarded against ONS, leaving FPFW with funds that can be put towards further challenges. The award of costs in the FWS case will depend on the outcome of the appeal process.

The Scottish Parliament elections and beyond

Many public authorities have sought to re-arrange their services to accommodate the increasing number people who declare a gender identity different from their sex by introducing policies that simply over-write sex with gender identity, at the behest of advocacy groups representing one side of the debate. While the outcome of both these recent legal challenges might be read as a score draw,  the outright success of one and the decision to appeal in the second bring home how much senior managers and politicians need to pay attention to due diligence processes in this area.

One of the stimuli to the census, the Public Boards Act and other changes appears to have been anticipation of wider legal change, through reform of the Gender Recognition Act.  This is no longer planned in England and Wales: we will be looking further at what the manifestos say about plans in Scotland on this and related areas, once all the major manifestos are available.