For Women Scotland vs the Scottish Ministers: making the arguments transparent

Introduction

Next week the case of For Women Scotland vs the Scottish Ministers will be heard in the UK Supreme Court. It will decide the definitions of ‘sex’, ‘woman’ and ‘man’ in the Equality Act 2010, and whether or not acquiring a Gender Recognition Certificate (GRC) changes what sex a person is for the purposes of the 2010 Act.

The case is a matter of substantial public interest. It will be followed by a large audience of the public, professionals and the media.

Publishing the legal arguments made by the various parties helps people to follow and understand the case. It is important that legal arguments are published before the start of the hearing, so that oral representations made in court can be understood in context. It also serves the principle of open justice.

As detailed in the post below, For Women Scotland (the appellants), and Sex Matters, Scottish Lesbians, the Lesbian Project and LGB Alliance (interveners) all published their respective written arguments last month, well ahead of the case.

Seeking disclosure of the unpublished legal arguments

On 18 October, we submitted a Freedom of Information (FOI) request to the Scottish Government requesting that they publish their submission. On 21 October, we submitted a FOI request to the Equality and Human Rights Commission (EHRC) requesting that they publish their submission. On 24 October, we wrote to the Chief Executive of Amnesty International UK asking whether the organisation intended to publish its submission, given the high level of public interest in the case.

We received responses to our FOI requests from the Scottish Government and the EHRC stating that they did not intend to publish their submissions, citing an exemption under Freedom of Information legislation.

Last week, we received a response from Amnesty. This stated that Amnesty would make their submission public, but did not indicate when.

Application to the Supreme Court

On Monday this week (18 November), we wrote to all parties involved with the case, stating our intention to lodge an application with the Registrar of the Supreme Court seeking disclosure of all unpublished submissions. For Women Scotland, Sex Matters, Scottish Lesbians, the Lesbian Project and LGB Alliance all responded, consenting to the application.

Lawyers for the Scottish Government responded on 20 November. The response neither consented nor objected to our proposed application, and expressed the hope that the submission would be published on the Scottish Government website later that day. The submission was eventually published the following day (21 November).

Lawyers for the EHRC also responded on 20 November. They also neither consented nor objected to our proposed application. They stated that they intended to publish their submission on 21 November. The published EHRC submission can be accessed here.

We received a response from lawyers acting for Amnesty International UK on 19 November. They also neither consented nor objected to our proposed application. They restated that Amnesty intended to publish its submission in future, but not when. Soon after we submitted papers to the court, Amnesty gave a new undertaking, to publish ahead of the hearing.

Withdrawing the application

Following publication of the Scottish Government and EHRC submissions, and the new undertaking from Amnesty, we have now advised the UK Supreme Court that we no longer intend to proceed with the application. The reason for it has been removed by the reaction of the relevant organisations to our decision to take this step. The application carried a fee of £485; we are pleased to say that events moved quickly enough to mean that we have avoided this cost. We think it reflects particularly badly on the Scottish Government and the EHRC, as publicly-funded bodies, that we had to risk paying the fee to obtain public sight of these documents.

Forcing the argument

That it has taken the threat of court action to force publication of the legal arguments in this case raises serious concerns about transparency, integrity, and open justice.

Even once publication had been conceded, it was not done promptly. The Scottish Government told us on 10 a.m. on Wednesday 20th that they planned to publish, they hoped, that day. The submission was published over 24 hours later, at around 3 p.m the following day. It has been pointed out to us that this means it was issued after ministerial questions in the Scottish Parliament (including First Minister’s Questions on Thursday lunchtime) had finished for the week. The EHRC told us on Wednesday afternoon that they planned to publish the next day. They eventually published on Thursday at 4.30 p.m. These delays ate into the time available to others to digest the submissions, before the case starts on Tuesday next week.

For the Scottish Government, unwillingness to cooperate on this issue is not new. Since 2019 it has refused to engage with concerns about the interaction between the Gender Recognition Act 2004 and the Equality Act 2010, at times to the point of absurdity.

During the passage of the Gender Recognition Reform (Scotland) Bill, the Scottish Government repeatedly ducked the issue. Instead, it threw its weight behind a meaningless red herring amendment, which stated that nothing in the Act would modify the Equality Act. At the same time, in a concurrent court case brought by For Women Scotland, it sought to defend an interpretation of sex in the Gender Representation on Public Boards (Scotland) 2018, based on the argument that a Gender Recognition Certificate does indeed change a person’s sex for the purposes of the Equality Act.

Having set out its position in the previous hearings on this case in the Scottish Court of Session, it is hard to understand the Scottish Government’s reluctance to publish its arguments this time around. One explanation may relate to the starkness of its propositions, when set out in black and white. The submission makes clear, for example, that in its view women are not a distinct class or category. Contrary to its position during the passage of the Gender Recognition Reform (Scotland) Bill, the government argues that men who obtain a GRC are female for the purposes of the Equality Act, and that women who acquire a GRC are excluded from the legal category of ‘woman’.

The presumption in section 9(1) of the 2004 Act accordingly applies to the 2010 Act by virtue of section 9(2), and to the terms “sex”, “man” and “woman” as used in the 2010 Act. For the purposes of the 2010 Act, a person issued with a full GRC in the acquired gender of female is a woman, and a person issued with a full GRC in the acquired gender of male is a man.

It is also made clear that the Scottish Government does not support the right of single-sex associations, as defined in the Equality Act.

The association provisions do not permit an association of more than 25 people and which is governed by rules to restrict membership on the basis of more than one protected characteristic, and would not permit such an association of e.g. lesbian women to exclude a person with a full GRC in the acquired gender of “female” who was attracted to women – but the provisions do not apply to associations otherwise (paragraph 62 above), and the intention of Parliament, objectively construed, was to provide for such a person to be considered a woman. The fact that the members of the association may not be attracted to that woman or wish to associate with her does not diminish the protections which they are entitled to in terms of their own protected characteristic of sexual orientation.

As Michael Foran notes, the same argument can be applied to ‘women-only support groups or associations of women who have been victims of male violence, including rape’. He continues:

For Women Scotland, Sex Matters and the Lesbian Interveners argue that this interpretation is absurd, unworkable, and a violation of the human rights of women and lesbians. They argue that this absurdity, unworkability, and impact upon human rights should support the claim that Parliament never intended to strip these rights from women. The Scottish Government argue that this is what Parliament intended to do when it passed the GRA and the EqA.

The arguments made by the Scottish Government will continue to be usefully dissected ahead of next week’s hearing. But it should not have taken the threat of a court order to force the Scottish Government to make its publicly-funded written arguments public, ahead of what is a critical case for equality law and the rights of women, lesbians and gay men, in the UK’s highest court. Nor indeed, should it have taken court action by a volunteer-led feminist organisation, supported by public crowdfunding, to force the government into having to stop obscuring its position in the first place.

Application for disclosure of submissions to the UK Supreme Court