Defining “sex” in Scotland: how the recent EHRC letter relates to Scottish legal analysis and politics

On 4 April, the Equality and Human Rights Commission (EHRC) responded to a request for advice from the UK Government’s Minister for Women and Equalities, Kemi Badenoch MP, on whether the definition of “sex” contained in the Equality Act 2010 (EA2010) should be amended to state that this means “biological sex”.

Sex is one of nine “protected characteristics” under the Act, as set out in Section 11. It is formally defined in Section 212 as meaning being “male” or “female”. The EHRC advised that the change merited further consideration and would be helpful in clarifying the meaning of the law for users in several specific contexts.

This blog notes that several recent court cases brought in Scotland are relevant to this, looks at the political reaction to the letter in Scotland, and considers the relationship between the EHRC letter and the Scottish Government’s continuing plans to bring legal action against the UK Government in relation to the Gender Recognition Reform (Scotland) Bill.

Defining sex in Scotland

The potential impact of the change depends on who can plausibly be argued to be covered by the definition of “sex” at present. Although the Equality Act is reserved and can only be changed at Westminster, a number of actions taken by the Scottish Government have led to litigation in the Scottish courts with relevant judgments here.

This short paper published by the Law Society of Scotland in January 2020 by Julius Komorowski (then a leading advocate with a specialism in human rights and civil liberties, now a judge) remains a useful overview of the arguments. Komorowski set out four meanings of “sex” that might be argued in the EA2010: biological sex; biological sex, unless a person has a gender recognition certificate (GRC); biological sex, except where a person is “for all practical purposes” “indistinguishable from” or has “done everything possible to align with” “the identified sex” (based on case law predating both the creation of GRCs and the Equality Act); biological sex, except for those covered by the separate protected characteristic of gender reassignment (under section 7 of the EA2010), whose self-defined sex would instead apply. Komorowski set out why he believed that there were arguable positions in current law for the first two of these, biological sex and biological sex/GRC, but not the others.

Subsequent court cases in Scotland have borne out this view.

In For Women Scotland vs the LA and Scottish Ministers, February 2022 (FWS 1), in a judgment in the Inner House of the Court of Session striking down the use of a self-declared definition of sex under the EA2010, Lady Dorrian said:

an exception which allows the Scottish Parliament to take steps relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.

[FWS vs the LA and Scottish Ministers p.20]

Fair Play for Women vs The Registrar General Scotland and the Scottish Ministers, also February 2022, was about the definition of sex in a different piece of legislation. In finding in favour of a self-declared interpretation of sex for the purposes of the census, speaking in the Inner House Lady Dorrian nevertheless observed:

circumstances in which matters affecting status, or important rights, in particular the rights of others, may demand a rigid definition to be applied to the term “sex” of the kind proposed by the reclaimers [FPFW]…. The point which these examples all have in common is that they concern status or important rights.

FPFW vs The RGS and he Scottish Ministers pp.11-12

In contrasting the census with such situations, the EA2010 was not discussed. However, it is not difficult to argue that a person’s sex under it affects status, important rights and the rights of others.

For Women Scotland’s petition against Scottish Ministers (December 2022) challenged the Scottish Government treating a GRC as changing a person’s sex under the EA2010. In a judgment in an initial hearing in the Outer House, Lady Haldane concluded,

in this context, which is the meaning of sex for the purposes of the 2010 Act, “sex” is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex.

FWS petition judgment p.31

This set of judgments is consistent with Komorowski’s argument that “where ‘sex’ is used in the 2010 Act, there are two real possibilities. First, that sex is meant in the immutable, common law sense. Alternatively, it is meant in the common law sense except for those who hold a GRC”,  but they do not support it meaning anything more subjective, such as what a person self-declares it to be.

Also relevant here is this exchange at an online seminar in November 2020 and the response of the then Head of Legal at EHRC Scotland.

Audience question: “Does being covered by gender reassignment change a person’s sex for the purposes of the Equality Act 2010?”

Head of Legal, EHRC Scotland: “No. Is the short answer. You would have other characteristics, gender reassignment would be a characteristic that you held along with sex, and disability, or religion or age, so no.”

Engender ‘Lunchtime webinar: Understanding the Equality Act’, 6 November 2020 (notes taken of Q&A)

Political reaction in Scotland

At the time of writing, there has not been any comment on the EHRC letter from the Scottish Government that we have been able to find. However, the Scottish Greens have issued a strong statement in the name of Maggie Chapman MSP, opposing any change, although this does not make it clear what specific legal effects they expect this change to have. As a government coalition partner, it seems likely the Scottish Greens will be keen for the Scottish Government to adopt the same view.

The Labour Party at UK level has welcomed the EHRC’s comments, but the opposition parties in Scotland have not yet commented, to the best of our knowledge. However, the leader of the Scottish Liberal Democrats, Alex Cole-Hamilton MSP, appears to have endorsed (via a Twitter “like”) a strongly-worded criticism published by the main relevant advocacy group in Scotland, Scottish Trans, a project of the almost wholly Scottish Government funded Equality Network.

Scottish Trans argues that the proposed change to the EA2010’s definition of “sex” will be seriously harmful not only to GRC holders but to a wider population, making points which imply that:

• it still holds to one of the more subjective definitions of sex deemed implausible by Komorowski and ruled out in FWS 1, a starting point taken as read in FWS 2, and
• it believes that this more subjective definition of “sex” is the entire legal basis for treating a person as if they have the opposite sex than the one observed for them at birth (or before), in terms of access to single-sex spaces or services, or to targeted equality measures.

As well as overlooking the outcome of FWS 1, Scottish Trans’ position that this specific change to the law will have effects beyond GRC holders is surprising, given its position as set out elsewhere. For example, it has advised employers that the separate prohibition in EA2010 of discrimination based on gender reassignment of itself gives staff the right to access single sex spaces at work in line with “the gender in which they are working”. Even if its objections were only to effects on GRC holders, there would still be a tension with its position on the Gender Recognition Reform (Scotland) Bill, where it has persistently dismissed any suggestion that GRCs are relevant to accessing services and spaces.

There are therefore anomalies in the Scottish Trans response that politicians might be expected to explore before endorsing it. Against that, Scottish Trans has in the past had considerable success in persuading MSPs and government to repeat its arguments as presented to them. Stonewall, also politically influential in Scotland, has reacted in similar terms.

Section 35 Challenge

The First Minister’s most recent comments suggest the Scottish Government intends to challenge in court the UK Government’s block on the Gender Recognition Reform (Scotland) Bill receiving Royal Assent. We noted here that the potential effect of a GRC on a person’s sex as defined under the Equality Act was a significant element of the UK Government’s objection to the Bill, but not the only reason it gave for making a Section 35 Order under the Scotland Act 1998. Action against the Order will need to be started by the Scottish Government no later than 17 April.

From his comments to date, the First Minister appears more interested in asserting the Parliament’s general right to pass this legislation, regardless of whether or not it has an adverse impact on the operation of the Equality Act for women, than in challenging the UK Government argument’s specific argument that this will be the effect. That sits uneasily with the new First Minister’s commitment during his leadership campaign that he would “advance women’s rights”.

Meanwhile, any change to the EA2010 is likely to take some time. The EHRC letter argues the proposal needs further consideration of its full effects, and consultation. It would then require legislation. The law will not be changed in practice until legislation has been drafted, introduced, agreed at Westminster and, importantly, brought into force. Even if this is done through the simpler model of secondary legislation, as suggested in this petition raised by Sex Matters, rather than by an amending Bill, the reaction so far suggests the process will still be challenging. None of this suggests an early change to the Equality Act.

Therefore, although the proposal in the EHRC letter might be seen as something which if carried forward would in theory at least improve the chances of the Scottish Government winning a case against the s35 Order, it will play out on a timetable too slow to be relevant to any legal action that has to be brought imminently by the Scottish Government. Further, if the Scottish Government takes any position on the EHRC letter, it seems most likely to oppose any change, in line with its coalition partners and its position in FWS 2. That would leave it arguing in one context against something that would support its arguments in another: in that case, in Scotland the maze of contradictions into which the push for self-declaration of sex has led many politicians would be further demonstrated.

Additional note: length of court proceedings

We are grateful to Professor Aileen McHarg for pointing out that the experience of other cases suggests that a court case taken over Section 35 could take as long or longer than the process of achieving any change to the Equality Act, even if that stretched well into next year.

We note that past cases suggest that in embarking on court action the Scottish Government is opening the way to this issue continuing to be live in the Scottish courts for the next year or more, assuming initial permission is granted by the court to the Scottish Government to bring a case, and that an appeal is likely, whatever the outcome of the first hearing. That would take it most or possibly all of the way to the next UK general election. If the case goes all the way to the Supreme Court, it could last nearer two years, running past the next UK general election and beyond. A change to the Equality Act, if it happens, seems extremely unlikely to occur before the conclusion of a case in the Outer House. After that, the position becomes harder to predict.

Prof. McHarg has drawn our attention to two further points. First, that it would be for the court to decide whether developments since the Order was made are relevant to determining whether the Secretary of State was acting reasonably in making the Order. Second, that it remains open to the Scottish Government at any point to send the Bill back for reconsideration and amendment at Holyrood, whether before or after any change to the Equality Act. At that point, the UK government would need to decide whether to issue a fresh Section 35 Order in relation to the amended Bill.

Examples of judicial review timetables are shown below, where these have been taken at least through a first level of appeal, including two which went as far as the UK Supreme Court. The FPFW case mentioned above is excluded, as it was handled on an exceptionally accelerated timetable, due to its relevance to the then forthcoming census.

More on the process of judicial review is available here.

Issue	Tobacco advertising	Named person	FWS 1
Petition lodged	April/May 2010	July 2014	August 2020
Hearing in Outer House	June 2010	November 2014	January 2021
Decision	September 2010	January 2015	March 2021
Application to Inner House		April 2015	April 2021
Hearing in Inner House	May 2011	June 2015	November 2021
Decision of Inner House	February 2012	September 2015	February 2022
Time to complete hearings in Scotland	1 year 10 months	1 year 2 months	1 year 6 months
Hearing UK Supreme Court	November 2012	March 2016	n/a
Decision	December 2012	July 2016
Total time	2 years 7 months	2 years

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