For Women Scotland at the UK Supreme Court: who are the interveners?

Introduction

Later this month – on 26 and 27 November – justices at the UK Supreme Court will hear the case of For Women Scotland versus the Scottish Ministers. The case is an appeal, following a ruling of the Inner House of the Court of Session (Scotland’s highest court) for Judicial Review of the revised statutory guidance produced by the Scottish Government under Section 7 of the Gender Representation on Public Boards (Scotland) Act 2018. The Supreme Court justices will consider whether acquisition of a Gender Recognition Certificate (GRC) changes a person’s legally recognised sex for the purposes of the Equality Act 2010.

For Women Scotland have published their written case and supplementary documents.

We requested publication of the Scottish Government’s submission via Freedom of Information legislation but this has been refused.

This blog considers the organisations which have been granted leave to intervene in the case, and their position on gender self-identification and the Equality Act. Leave to intervene was refused by the Court to two trans identified individuals, Professor Stephen Whittle, and Victoria McCloud.

Equality and Human Rights Commission (EHRC)

The EHRC has prepared a written submission and been granted leave to make one hour of oral representations during the hearing.

The Commission is the national equality body for England, Scotland and Wales, whose role is to eliminate discrimination and promote equality across the nine protected grounds set out in the Equality Act 2010.

Its position on gender recognition has changed over the past few years. It supported proposals to remove the need for a diagnosis of gender dysphoria contained in the Scottish Government’s 2017 consultation on reform of the Gender Recognition Act (GRA) 2004. The Commission took the same position in response to the UK Government’s 2018 consultation on reform of the GRA. It also supported the principles of the Scottish Government’s 2019 draft Gender Recognition Reform Bill, which proposed removing the need for a diagnosis of gender dysphoria.

Latterly, the Commission has changed its position on gender recognition reform. Giving evidence to the Scottish Parliament on the Gender Recognition Reform (Scotland) Bill in May 2022, the head of policy stated that the Commission had “reached the position that more detailed consideration is needed before legislative change is made”.

In a letter to the Minister for Women and Equalities, sent in April 2023, the Chair of the EHRC said ‘we have come to the view that if ‘sex’ is defined as biological sex for the purposes of EqA, this would bring greater legal clarity’.

We have requested publication of the Commission’s submission to the Supreme Court via Freedom of Information legislation, but it has refused.*

Sex Matters

Sex Matters has prepared a written submission and been granted leave to make one hour of oral representations during the hearing. The submission can be read here.

Sex Matters is a human rights charity which opposes a self-declaration model of gender recognition in UK law. The charity opposed the Scottish Government’s Gender Recognition Reform (Scotland) Bill and campaigns to clarify ‘sex’ in the Equality Act.

Scottish Lesbians, The Lesbian Project and LGB Alliance

These three organisations have prepared a joint written submission, which can be read here.

In a letter to MSPs during the passage of the Gender Recognition Reform (Scotland) Bill, Scottish Lesbians made clear their objections to the bill, as well as their concerns about the For Women Scotland cases and its implications for lesbians.

The outcome of this judicial review is not yet known, but should the Scottish Government prevail, then single sex spaces may not after all be protected. This will leave lesbians unable to meet or organise female-only events.

LGB Alliance also opposed the proposals contained in the Scottish Government’s Gender Recognition Reform (Scotland) Bill and has also supported calls to clarify the Equality Act 2010.

LGB Alliance support a clarification of the Equality Act 2010 because our rights as same-sex attracted people are contingent upon the understanding that ‘sex’ means ‘biological sex’ and not upon an individual’s self-declared gender identity.

The Lesbian Project was formed after the Gender Recognition Reform (Scotland) Bill was passed. However, its website states that:

We don’t think either biological sex, or being attracted to others of the same sex, are choices. By definition, only females can be lesbians, in virtue of their biological sex. Our understanding of both ‘sex’ and ‘sexual orientation’ are in line with those of the 2010 Equality Act.

Amnesty International UK

Amnesty has prepared a written submission.

In a joint submission with Just Right Scotland, Amnesty Scotland made clear its support for the Gender Recognition Reform (Scotland) Bill. In January 2023, Amnesty co-signed a statement with 14 other civil society organisations objecting to the UK Government’s use of powers under the Scotland Act 1998 to prevent the Scottish Government’s Gender Recognition Reform (Scotland) Bill from proceeding to Royal Assent. The then Secretary of State for Scotland concluded that the Bill would have an adverse impact on the operation of the Equality Act. The multi-signatory letter stated:

…the Equality Act has allowed for protection from discrimination of trans people on the basis of self-identification since its passage into law in 2010. This was the case before the Gender Recognition Reform Bill and will be the case after. Contrary to arguments made during the passage of the Scottish Bill, this legislation makes no changes to whether and when trans women can access women’s spaces. If it is legitimate and proportionate, trans women can already be excluded from single sex services irrespective of whether they have a Gender Recognition Certificate (GRC) or not.

We wrote to Amnesty UK Chief Executive Sacha Deshmukh on 24 October 2024 to ask whether the organisation would publish its submission in light of the public interest in the case. We received a response on 13 November stating that “Amnesty International UK’s submission to the Supreme Court will be made public in due course”.

*The Commission’s submission to the previous Outer House hearing was published here.