Courting confusion: current cases involving the Scottish Government, sex and gender recognition

Next Wednesday, 4 October, the Inner House of the Court of Session will hear legal arguments about whether or not a Gender Recognition Certificate (GRC) changes a person’s sex for the purposes of the Equality Act.

In this blog we explain how this case relates to last week’s court hearing on the Section 35 Order (see further here):

The judicial review process

A legal challenge to whether a public body has acted within the law is called a judicial review. In Scotland, judicial reviews begin in the Court of Session.

The first stage is normally a hearing in the Outer House. Each party puts in written material ahead of a hearing in court, where their lawyers then argue the case in person, in front of a single judge. The judge then issues a judgment on the case. This is usually done in writing at some point over the following three months.

The losing party can ask the Inner House to ‘review’ the initial judgment.  The same process repeats, except that the hearing in the Inner House is usually before a group of three judges.

Whoever loses at that stage may be allowed to take their case to the UK Supreme Court, as the final stage. That usually depends on how clear-cut the ruling is.

At each stage, other groups may be allowed to ‘intervene’. This usually means that they are given permission to put in written material, seeking to influence the outcome of the case.

For Women Scotland vs Scottish Ministers

Last year, For Women Scotland (FWS) challenged Scottish Government guidance under the Gender Representation on Public Boards (Scotland) Act 2018 (GRRB), which stated that, for a person with a GRC, what was on their GRC should determine whether or not they should be treated as a woman.

This followed an earlier case, decided in February 2022, where the courts ruled that (a) for this purpose, the Scottish Government had to follow the definition of woman in the Equality Act and (b) counting male people with the protected characteristic of gender reassignment as women was against the terms of the Equality Act, because ‘provisions in favour of women, in this context, by definition exclude those who are biologically male’. The court therefore ruled the Scottish Government’s guidance, and the GRPB Act, was unlawful.

The Scottish Government then put out new guidance which said that for a person with a GRC, what was on their GRC determined whether or not they counted as a woman for the purposes of the GRPB Act.

FWS challenged this guidance in court as unlawful, given the previous ruling. In December last year, Lady Haldane, sitting in the Outer House, issued a judgment in favour of the Scottish Government, accepting their argument that a GRC changes a person’s sex for the purposes of the Equality Act.

FWS have appealed this ruling, and the appeal will be heard in the Inner House on 4 October. It is scheduled for a single day. The court’s summary of the case is here.  The hearing starts at 10.30am and can be followed online here.

FWS have stated that they will be publishing their Note of Argument (a summary of the arguments they are putting to the court) next week. We are writing to the Lord Advocate to ask if the Scottish Government will do the same. 

The Equality Network and the EHRC both intervened in the first stage of this case, in support of the Scottish Government. The LGB Alliance intervened on the opposite side. None are doing so now. 

The judges will have up to three months to issue a written judgment, but could do so sooner.

The losing party could then ask to appeal to the Supreme Court.

Section 35 Order

Last week, Lady Haldane (as it happens, once again) heard arguments in the Scottish Government challenge to the UK Government’s use of a Section 35 Order under the Scotland Act, in relation to the Gender Recognition Reform (Scotland) Bill (GRR). She will now proceed to write up her judgment, which could be issued any time in the next three months.

The UK Government’s argument relies in part on the GRR Bill having adverse effects under reserved legislation. This includes the Equality Act 2010.

There was some discussion in court last week about what it would mean for Section 35 Order judgment, if the Inner House overturned Lady Haldane’s previous judgment, and ruled that a GRC does not change a person’s sex under the Equality Act. 

The Scottish Government argued for Lady Haldane to issue two judgments, in effect, anticipating different outcomes in the FWS case. This meant the Scottish Government was asking Lady Haldane – who had ruled in its favour in a case it is about to defend (“vigorously”, the Lord Advocate and the judge agreed) – to seriously entertain the idea that both they and she were wrong.

Lady Haldane turned down this argument. She also noted that the FWS judgment had an unpredictable range of outcomes, in which a GRC always, sometimes, or never has an effect under the Equality Act.

Instead, the court and both governments agreed that Lady Haldane should proceed to write up her judgment on the basis of her previous decision being right. If, in practice, her earlier judgment on FWS is overturned before she has finished writing up her judgment on the use of Section 35, they agreed that there would be further discussion about what to do. For example, both governments might be given the chance to make further arguments.

How far it would affect the UK Government’s case if GRCs had no effect under the Equality Act is impossible to say. The UK Government argued strongly that its use of the Order did not rely on these effects, and others were equally relevant.

Whatever the outcome in this case, it seems likely that the losing government will appeal to the Inner House. On 18 September, the Daily Telegraph reported that ‘senior SNP sources told the Telegraph that [the First Minister] may not appeal the case to the UK Supreme Court if the Court of Session delivers a clear-cut rejection of his case.’ That reads, however, mostly as a carefully worded response to complaints about the cost of the case.

To the Supreme Court?

Either or both of these cases could go all the way to the Supreme Court.

The Scottish Government’s argument last week strongly implies, however, that if it loses in the FWS case, it does not intend to appeal that case further. Otherwise, it makes little sense for it to ask for a judgment on the Section 35 Order based on FWS winning their case.

A confusing situation

If the relationship between these two cases is confusing (and it is), that reflects the Scottish Government’s muddled position about the effect of a GRC under the Equality Act, from the very start of the GRR process, as outlined in this blog:

Throughout the process, before and after the Bill was introduced, the Scottish Government has avoided answering questions about this, even up to the absurd point last autumn of refusing to describe to the Scottish Parliament, as a matter of fact, the position it was arguing at exactly the same time in court.

Various combinations of judgment are possible here. All that observers can do, for now, is observe. How quickly a settled position will be reached in the courts on the effect of a GRC, and on the lawfulness of the Section 35 Order, is anyone’s guess.

Note added 3 October: On Monday 2 October For Women Scotland published their submissions to the Court and Sex Matters announced that they had been granted leave to intervene in the case and would be publishing their submission on the day of the case. We wrote to the Scottish Government on 29 September asking what plans it has to publish its written input to the case (at the time of writing, we have not yet had a response).

Further note added 3 October: Shortly after adding the note above, we received a response from the Scottish Government advising that (in contrast to the approach it took in the Section 35 Order case) it would not be publishing its written arguments to the court.