The judicial review of the UK Government’s decision to invoke Section 35 of the Scotland Act 1998 in respect of the Gender Recognition Reform (Scotland) Bill will be heard in the Outer House of the Court of Session in Edinburgh from 19-21 September.
This blog provides some background on the four organisations, including their funding base, whether they have previously argued against single sex services and spaces being able to lawfully exclude all people of the opposite sex, regardless of how they identify or whether they have a GRC, and their engagement with the Bill as it proceeded through the Scottish Parliament.
Scottish Trans/Equality Network
Founded in 1997, the Equality Network is a registered charity which ‘works for lesbian, gay, bisexual, transgender and intersex (LGBTI) equality and human rights in Scotland’. Its website states that Scottish Trans has been an Equality Network project since 2007. As shown in its annual accounts, its income in the year ending 31 March 2022 was £620,790. Grants from the Scottish Government accounted for 95% of that income (£592,492). It also received a grant of £4,172 from ILGA Europe and £18,729 in ‘training and research fees’. It is to be assumed that the remaining £5,397 of income is derived from donations.
Note added 12/09/23: The Equality Network has rightly pointed out today that simply deducting grants and training income from their total income underestimates their total income from donations, and that we overlooked the figure included in their accounts for donations and legacies of £29,166. Some clawback of unused funding (mainly £20,301 to ILGA for an intersex project) threw out our maths, but we should have noticed the published figure. We are happy to correct the record. As shown in the relevant part of the accounts, extracted here for ease of reference, SG funding (£588,975, after deducting a clawback of £3,517) therefore equated to 95% of total income in 2021-22, donations and legacies 5%, training etc 3% and ILGA (net deduction) -3%. Further information on donation income as provided in the Network’s accounts is shown below (the Equality Network does not appear to publish an annual report separately from its formal accounts, or any information about its funding on its website, at the time of writing; its annual accounts only appear to be published on the Companies House website). The Network has also commented that its donor income was higher in 2022-23, but its accounts for that year are not yet available.
In its submission to the UK Parliament Women and Equalities Committee’s transgender inequality inquiry in 2015, the Equality Network and Scottish Trans called for the removal of the exceptions in the Equality Act 2010 which allow employers and service providers to reserve some spaces, services and occupations for members of one sex only. The Equality Network and Scottish Trans gave written and oral evidence on the Bill.
(We have written previously about the Equality Network’s campaigning on gender recognition reform.)
Scottish Trans has stated that it is being represented pro bono by the Scottish Just Law Centre, part of the human rights legal charity JustRight Scotland, with Kay Springham KC and David Hay instructed as advocates. JustRight Scotland has a range of funders, including the Scottish Government (the accounts do not provide detail on what proportion of its funding is from that source). The only costs for Scottish Trans/Equality Network therefore should be staff time producing materials and briefing for its legal team. On 11 August, the Equality Network stated that ‘Our intervention in the section 35 court case is funded entirely by donations from individual LGBTI people and supporters’.
Stonewall
Founded in 1989 by activists campaigning against Section 28 of the Local Government Act 1988, Stonewall is a registered charity. Its income in the year ending 31 March 2022 was £7,845,810. Half of that income derived from ‘fee’ and ‘programme’ income, most likely the Stonewall Diversity Champions and other programmes. It also received grants from the Foreign, Commonwealth and Development Office (£88,713), NHS Scotland (£45,895), Scottish Government (£99,917) and Welsh Government (£168,870).
Stonewall expanded its remit to campaigning on trans equality in February 2015 ‘following an extensive consultation with over 700 trans people.’. A Trans Advisory Groupguided an action plan for this work. Its website states that it ‘stands[s] for lesbian, gay, bi, trans, queer, questioning and ace (LGBTQ+) people everywhere’.
In response to the 2015 transgender equality inquiry, Stonewall called for ‘a review of the Equality Act 2010… to remove exemptions, such as access to single-sex spaces’. In its submission to the select committee, it expressed concern that the Equality Act 2010 denied transsexual people access to separate or single sex spaces and roles reserved for members of one sex only. It stated that ‘these exemptions sit in contention with the Gender Recognition Act as they imply that being a ‘transsexual person’ supersedes a person’s legal gender’. Through its subsidiary, Stonewall Scotland, Stonewall gave written and oral evidence on the Bill.
We reviewed a statement about the GRR Bill made by the director of Stonewall Scotland in November 2022.
Note added 12/09/23: The Equality Network has also commented that “Stonewall Scotland has campaigned for trans equality since it was founded in 2000.” Groups active in Scotland, including Stonewall Scotland, do have a distinctive history on this issue (as discussed here). Formally, however, the intervening party will be the legal entity Stonewall Equality Ltd. of which Stonewall Scotland is a subsidiary part. This, and the point above, are the only points on the substance of this blog that have been brought to our attention by any route, at the time of writing.
Gendered Intelligence
Established in 2008, Gendered Intelligence is a charity which seeks ‘to increase understandings of gender diversity and improve trans people’s quality of life’. Its income in the year ending 30 June 2022 was £1,154,769. Almost all of this was in the form of grants from trusts, foundations and some statutory bodies, including three NHS trusts in England.
Gendered Intelligence’s submission to the 2015 inquiry stated that there should be ‘a comprehensive review of the legislation affecting trans people (and intersex people) with the aim of deleting the exceptions laid out in the GRA 2004 and EA 2010’. Gendered Intelligence does not appear to have submitted evidence on the Bill.
Institute of Constitutional and Democratic Research (ISDR)
Established in April 2021, ISDR’s entry on the Charity Commission website states that it ‘provides advocacy, advice, information and/or research to advance the education of the public in the subject of constitutions and democracy’. Its income for the year ending 31 March 2022 was £19,083. The trustees’ annual report for this period states that this income came from ‘philanthropic sources including the Joseph Rowntree Reform Trust, corporate sources and individual donations’ and that its expenditure of £14,674 ‘primarily covered fees for Director Sam Fowles’.
ISDR director Sam Fowles is a practising barrister, who is also instructed in the intervention. Dr Fowles is the author of ‘Overruled: Confronting our vanishing democracy’, the paperback version of which was launched at the Lighthouse bookshop in Edinburgh in April.
Writing earlier this year, Dr Fowles stated that ‘a relatively simple administrative reform… has become a symbol of Whitehall oppression’. Writing on LinkedIn, he said of the Section 35 order that ‘It misunderstands the effect of the Equality Act 2010’, claiming that ‘provisions [in the Equality Act]… would, basically, solve all the issues raised around single sex spaces and likely most of the administrative challenges.’ The ISDR did not appear to submit evidence on the Bill.
A statement issued on 18 August on behalf of Stonewall, Gendered Intelligence and the ISDR confirmed that all counsel instructed for the intervention are acting pro bono:
Stonewall, Gendered Intelligence and the ICDR are represented by DLA Piper Scotland LLP. James Findlay KC and David Blair are instructed in the intervention. Robin Moira White, Adam Wagner, Sam Fowles and Stephanie Davin are also assisting in the proceedings. All are acting pro bono.
The interveners characterised their intervention in the following terms:
Each of these charities represents a different area of relevant expertise, and by working together they will seek to provide evidence to the court demonstrating that:
International comparators demonstrate that measures similar to the Gender Recognition Reform (Scotland) Bill have been implemented in comparable jurisdictions, without many or all of the adverse impacts which have been identified in the UK government Statement of Reasons.
The “adverse impacts” on equalities law identified by the UK Government are, in fact, unlikely to occur or will only occur in very rare factual contexts
Parliament did not intend the section 35 powers be used in the case of a mere policy disagreement or without first exhausting other avenues for dialogue between the UK Government and Scottish Parliament.
The interventions from all four third party organisations will take the form of written submissions. We have written to each organisation asking whether they will publish their submissions given the degree of public interest in this case.
Note added 13/09/23: Gendered Intelligence has confirmed to us this afternoon that “we will not be publishing our written submission at this time.”
Note added 15/09/23: The Equality Network responded to us earlier today that they “have been advised by our lawyers that it is frowned upon by the court to publish intervention submissions before the judgement is issued. We’ll certainly consider publishing it after that.”
Note added 27/09/23: On 19 September, Stonewall advised us that “We’ve been advised by our lawyers not to publish intervention submissions ahead of a judgement and we will follow that advice. Once a judgement is issued, we will consider publishing our submission.” On 20 September, following media requests and discussion with the court, the interveners published their submissions. The Equality Network one is here. The Stonewall one was submitted jointly on behalf of itself and the two other interveners and is available here.
