Supreme Court judgment: a round-up of recent events

On Tuesday 22 April Shirley-Anne Somerville MSP, the Cabinet Secretary for Social Justice, told MSPs:

Along with the Cabinet Secretary for Health and Social Care, I will be meeting with the EHRC on Thursday and will seek an update on its plans for renewed guidance by the summer. This Government calls for that process to be inclusive and to ensure that there will be engagement with all those on whom it will impact. The guidance is important for Governments across Scotland, England and Wales, as well as public authorities and private and voluntary sector organisations, following the Supreme Court judgment. All organisations must comply with all relevant legislation, and guidance from the EHRC will be key in that process.

Shirley-Anne Somerville MSP, 22 April 2025

She referred to this meeting again repeatedly in responding to questions. As shown below,¹ the anticipated meeting was used to avoid giving substantial answers to questions from several MSPs, in a similar way that the existence of a “live case” was used previously.

It appeared from these comments that the Scottish Government had contacted the EHRC to ask for a meeting about the judgment, and that the EHRC had agreed to this. However a statement issued by the EHRC at the end of Thursday, after the meeting was cancelled, shows that the Scottish Government’s account of events to the Parliament was partial.

In fact, the sequence of events was:

• On 21 February, the EHRC wrote to the Scottish Government, in response to the case of Peggie v NHS Fife, seeking a meeting with Neil Gray MSP, the Cabinet Secretary for Health and Social Care ‘to discuss the Scottish Government’s role in ensuring that NHS Scotland and other bodies meet their legal obligations under the Equality Act.’
• A meeting for this purpose, on Thursday 24 April, was arranged at some point after this, but before the UKSC judgment.
• The judgment was issued on Wednesday 16 April.
• On Tuesday 22 April, Ms Somerville told MSPs she would be meeting the EHRC to discuss the judgment.
• On Wednesday 23 April, the Scottish Government informed the EHRC that it wanted to add a discussion of the Supreme Court judgment to the agenda for the meeting.
• At some point on either 23 or 24 April, the EHRC first told the Scottish Government it was not prepared to change the agenda for the meeting in this way.
• At First Minister’s Questions at lunchtime on Thursday 24 April, in response to a question from Pam Gosal MSP, First Minister John Swinney said:

The Cabinet Secretary for Health and Social Care and the Cabinet Secretary for Social Justice will meet the Equality and Human Rights Commission later today and seek an update on the timing of its revised guidance, which is essential to fulfilling the statutory underpinnings of the approach that we take…  there is a meeting today with the Equality and Human Rights Commission, whose advice we relied on for the previous guidance that we had in place and whose advice and guidance we will have to rely on in the future. The Government will report to Parliament about the progress that has been made in that respect.

First Minister John Swinney, 24 April 2025

• At some point before it was due to take place, the meeting was cancelled by the EHRC. It remains unclear what the background to that decision was; specifically, whether this happened only in response to the Scottish Government’s initial request to add a discussion of the judgment to the agenda, or because of anything more the Scottish Government said in any further discussions about how it intended to use the meeting, if it went ahead.
• At the end of Thursday 24, the EHRC issued a statement that noted the original purpose of the meeting (i.e. issues relating to NHS Scotland). It stated these ‘pre-dated and are unaffected by the recent Supreme Court judgment’, and that it had ‘intended to seek clarification on the steps the Scottish Government is taking to encourage health boards comply with the Equality Act’. It added: 

On 23 April we received additional proposed agenda items from the Scottish Government, including an item on the Supreme Court’s judgment, its implications and guidance.  

As Britain’s equality regulator, we are of course taking this judgment into account in our work to uphold and enforce the Equality Act 2010. Considerable work is being done at speed.  But we have not met or discussed this judgment with the UK Government – to understand their views, its implications and what further UK guidance may be required. 

In these circumstances, we did not consider it appropriate to enter into a discussion with Scottish Government ministers at this stage.  

As we have made clear since the Supreme Court’s judgment, we are revising our statutory Code of Practice. Subject to UK Government ministerial approval, this is expected to be approved by the UK Parliament before its summer recess. The updated Code will support service providers, public bodies and associations to understand their duties under the Equality Act and put them into practice.  

We are also working at pace to incorporate the implications of the judgment into our other advice for duty-bearers, such as our single-sex services guidance. This guidance is being reviewed as a matter of urgency and will be issued as soon as is practically possible. 

In the meantime however, the law is as set out in the Supreme Court’s very readable judgment and is effective immediately.  

Those with duties under the Equality Act must comply with the law and should be urgently reviewing what changes need to be made to their existing policies and practices.

EHRC, Statement on meeting arranged for 24 April 2025 with the Cabinet Secretary for Health and Social Care, 24 April 2025

It is surprising that MSPs were told that a meeting to discuss the judgment was taking place, before any approach had been made to the EHRC asking it to agree to add that to the agenda, and that original purpose of the meeting was not spelt out. When the Minister gave her statement to the Parliament, the Scottish Government had had nearly a week to do this.  The Scottish Government has not disputed the EHRC’s account of the timings.

The Scottish Government’s explanation of events to the Committee has been similarly partial. In a letter dated 25 April it has said:

The Scottish Government’s planned meeting with the EHRC on 24 April has been postponed.

In their statement on this postponed meeting, the EHRC say: “we have not met or discussed this judgment with the UK Government – to understand their views, its implications and what further UK guidance may be required” and “In these circumstances, we did not consider it appropriate to enter into a discussion with Scottish Government ministers at this stage.”

Ministers have written to the EHRC to say that we remain ready to meet with them at their earliest availability to discuss the impact of the judgment further. In particular, we indicated in this letter that the Scottish Government is keen to better understand the process the EHRC is undertaking to update their Code of Practice and the stakeholders they are planning to engage with.

Shirley-Anne Somerville MSP, 25 April 2025

The Scottish Government’s letter to the EHRC was not provided to the Committee, and does not appear to have been published yet by the Scottish Government. It is not clear what has become of the original planned discussion about Scottish Government guidance to the NHS.

On Friday 25 April, the EHRC issued an Interim update on the practical implications of the UK Supreme Court judgment. This notes:

We know that many people have questions about the judgment and what it means for them. Our updated guidance will provide further clarity. While this work is ongoing, this update is intended to highlight the main consequences of the judgment. Employers and other duty-bearers must follow the law and should take appropriate specialist legal advice where necessary.

EHRC, 25 April 2025

It sets out what it regards the judgment as having made clear about what the law says about the provision of single- and separate sex provision in workplaces, schools and services open to the public, and in relation to associations, and provides its timetable for updating its Code of Practice. This appears to address the points on which the Scottish Government told MSPs it needed more clarity, before it could respond to their questions further.

In its reaction to this, in a statement it issued to the media on Saturday, the Scottish Government again focused on the behaviour of the regulator, and said nothing more about its own immediate plans for action, as a public body subject to the law and regulation by the EHRC.

We note the interim update from the EHRC, and that they intend to hold a consultation with stakeholders on their forthcoming guidance.

We are keen to work with EHRC to ensure consistent, inclusive and comprehensive guidance is in place following the Supreme Court judgement and, following the postponement of last week’s meeting at their request, have asked to meet with them as soon as possible to discuss further.

Scottish Government media statement, 26 April 2025

The Scottish Green MSP, Ross Greer, has called the update “cruel, unworkable, beyond the SC judgement”. An MP for the Green Party in England and Wales, has called it “harsh and ill-considered.”

Scottish Liberal Democrat MP, Christine Jardine, has said she “can find nothing reassuring except the fact that it’s ‘interim'” and that the government “needs to take the lead and provide clarity.”

Although these are framed as criticisms of the EHRC, its update is no more than a plain account of the judgment, plus the most basic implications of the logic of that. These responses give an idea of how the EHRC is likely to act as lightning rod over the months ahead for discontent with the Supreme Court’s determination of what the law is.

In response to the Convener’s brief letter to a selection of organisations on the evening of Thursday 17 April, the Committee received a number of responses, some of which are available on its website.

For Women Scotland

For Women Scotland has urged the Committee to read the judgment, and added that it cannot appear before the Committee while the current Deputy Convener remains in her role (see below). It noted that the letter sent to it had omitted a courtesy included in others.

EHRC

The EHRC directed the Committee to its public statement on 17 April, welcomed the judgment as dealing with problems it had identified with in the functioning of the Equality Act, if a different interpretation of ‘sex’ was used, and explained that it was now taking forward work on their Code of Practice.

Equality Network

The Equality Network/Scottish Trans submitted a lengthy paper arguing that the judgment is not the final word on interpreting the law. It suggests reasons it believes the judgment could be regarded as wrong or having a different import from the one the judges set out, and reflected in the EHRC comments so far.

It therefore, in effect, encourages the Committee to re-visit the legal arguments, rather than simply focus on the content of the judgment. It also asks the Committee to make various representations to the EHRC, including about how it should consult on its revised guidance.

The EN/ST asks the Committee to urge the Scottish Government ‘not to make premature statements about the implications of the judgment, but to wait until the EHRC’s drafting and consultation have taken place’. It adds that the Committee should ‘continue to hold public bodies and others accountable for their treatment of trans people in a way that maximises their wellbeing and human rights, consistent with the UK reserved legislation’.

The EN/ST summarised its submission in an online post. This states, ‘Our reply is very long – which reflects how serious we think the implications of the judgment might be. But one thing we are clear about in our response is that it is still too early to know for sure exactly what the ruling will mean’. It adds, ‘There are very different interpretations of the judgment being shared, and it is too soon to know exactly what the effects and impacts of the judgment are.’

The EN submission does not mention that it intervened in support of the Scottish Government at the first stage of the case, in the Outer House.

As all the submissions to the Supreme Court have been published, we are writing to the Equality Network asking if they will now publish their earlier intervention in the case.

Scottish Government

The Scottish Government response highlights key parts of the judgment, and explains the impact on the Gender Representation on Public Boards (Scotland) Act 2018. It notes that it intends to raise with the UK government the wider implication of Court’s ruling that the Gender Recognition Act 2004 does not have effect on other legislation, beyond the Equality Act, where there is ‘clear incompatibility or because its provisions are rendered incoherent or unworkable’. They say they require to do this as ‘Section 9, as for the rest of the GRA extends across the UK’ and ‘Some enactments which might be affected could be reserved in relation to Scotland’.  

This rationale for a discussion with UK Ministers is not easy to understand (unless Ministers think they may wish to legislate, to make it clear that a gender recognition certificate does apply, even in some circumstances where there is ‘incompatibility’ or it would make another statute ‘incoherent or unworkable’).

The response notes the government’s intention to discuss the Court’s comments on equal pay comparators with the UK government, and comments on the cancelled meeting with the EHRC, as discussed above. The response also welcomes the EHRC’s plans to update its Code of Practice, and its restatement of its commitment to its general duties as a regulator.²

Sex Matters

Sex Matters, which intervened in the Supreme Court case, was not invited to write to the Committee.

It has now written to the Convener in response to the submission from the Equality Network, sharing its ‘significant concerns about the presentation of material relating to the law’ and ‘strongly advis[ing] the committee to base no statements or comments on legal analysis provided by the Equality Network.’

It notes further that ‘there has been an outpouring of relief and gratitude from many women, who overwhelmingly want clear rules that exclude everyone male, however they identify, from all spaces and services designated female-only’ and refers to the Committee’s ‘duty to consider the judgment’s implications for women, who have had their right to single-sex services confirmed and now require clarity from the Scottish Government on a timeline for implementation.’

Our response

As discussed here, we wrote to the Committee on 22 April, suggesting that the judgment brought home the need for the Committee to examine shortcomings in own its examination of the Gender Recognition Reform (Scotland) Bill. We have received an acknowledgment, but at the time of writing, the letter has yet to be published on the Committee’s site.

We have also submitted our letter to the Standards, Procedures and Public Appointments Committee’s call for evidence in its current inquiry into the effectiveness of Scottish Parliament committees.

The Deputy Convener of the Committee, Maggie Chapman MSP, was recorded at a rally in Aberdeen over the weekend of 19/20 April, referring in a speech to “the bigotry, prejudice and hatred that we see coming from the Supreme Court”.

The Faculty of Advocates wrote the Convener of the Committee and to Ms Chapman on 22 April, in the light of this, saying:

These are appalling comments to come from any elected politician. They are all the worse when they come from someone who holds the post of Deputy Convenor of the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee… we suggest that her comments are not compatible with her role as Deputy Convenor, or, arguably, her continued membership of the Committee… The Faculty very much regrets having to write this letter. However, Ms Chapman’s words have left it with no choice. Her behaviour in this instance is utterly beyond the pale.

The President of the Law Society of Scotland commented, “It is entirely unacceptable for any politician to discredit the work of our judges when they seek to undertake this task fairly and independently.”

In correspondence with his constituency MSP, legal academic Dr Scott Wortley highlighted that:

All Members of the Scottish Parliament are under a statutory obligation to uphold the independence of the judiciary. Section 1 (1)(d) and (e) of the Judiciary and Courts (Scotland) Act 2008… provides that

“The following persons must uphold the continued independence of the judiciary —

…

(d) members of the Scottish parliament, and

(e) all other persons with responsibility for matters relating to —

(i) the judiciary, or

(ii) the administration of justice,

where that responsibility is to be discharged only in or as regards Scotland.”

The Supreme Court, in its role as a Scottish court, is covered by section 1 (3)(a) of the 2008 Act.

Ms Chapman has a dual role here. First, as a Member of the Scottish Parliament she seems to fall within section 1 (1)(d) but also in her role on the committee on civil justice, not just as a member but as the deputy convener, she seems to fall within section 1 (1)(e).

I have checked the code of conduct for members and am surprised to see that this statutory duty on Members of the Scottish Parliament is not protected within the code of conduct. I wonder then what, if any action, can be taken against a member within the Scottish Parliament when section 1 of the 2008 Act appears so flagrantly to be breached.

The Scottish Green Party holds the deputy convenership of this committee, under rules for carving out positions put in place by the Parliament after the 2021 election. Ms Chapman remains in post unless the Scottish Green Party replaces her with another of its MSPs, or she is voted off.  As far as we are aware, the only response to this provided by the leadership of the Scottish Greens was given by Patrick Harvie MSP on this morning’s edition of Good Morning Scotland, where he said:

“I did notice actually the comment from Lord Hope, the former deputy president of the Supreme Court itself, who said that she shouldn’t lose her position, but she might choose her language a bit more carefully. And very clearly, there are some people who’ve looked at what she said and have quite falsely accused her of questioning or undermining the independence of the judiciary.”

Patrick Harvie MSP, 28 April 2025

Conservative MSP, Tess White, put down a motion on Friday 26 April that:

the Equalities, Human Rights and Civil Justice Committee recommends that the Parliament remove Maggie Chapman from office as a member of the committee.

This paper by the Committee clerks explains that there is two-stage process. First, the Committee would have to agree to recommend (to the Parliament) her removal; and then the Parliament would have to agree to the Committee’s recommendation.

The Committee will consider the motion at its meeting on Tuesday 29 April, as its first item. From the agenda, it appears that this item will be taken in public.

The Committee has seven members: three SNP (including the Convener, Karen Adam MSP); two Conservative; one Labour; and one Green (Ms Chapman). The decision is made on a simple majority; if there is a tie, then the Convener will have the casting vote.

Single-sex toilets in schools

On 23 April, legal action was settled in a separate case concerning the provision of single-sex toilets in schools. The Court of Session has issued a declarator confirming that schools must provide separate toilets for girls and boys. The agreement to settle this action is distinct from the Supreme Court case, but complaints about the unlawful behaviour of this sort by local authorities should now be easier to settle quickly, with the combination of the declarator and the judgment.

Scottish Prison Service

On 26 April, we wrote to the Cabinet Secretary for Justice asking the Scottish Government to use its powers to direct the Scottish Prison Service to operate lawfully, meet its statutory obligations under the Equality Act 2010, and put single-sex arrangements in place throughout Scotland’s prison estate. 

Resources for employers

In our 24 April blog, we included some useful resources. To these, we would now add this by specialist discrimination and employment lawyer Peter Daly: For Women Scotland -v- The Scottish Ministers: The Seven Red Flags for Employers | LinkedIn. Listing “seven red flags” for employers, he comments:

If your organisation retains a policy that doesn’t recognise that single-sex spaces are, in fact, spaces that are available only to people of a single sex, your organisation is authorising unlawful discrimination against your female staff.

How do you know whether your policy is unlawful? Read it. Look for these seven red flags – the more of them you spot in your policies, the higher the likelihood that you have a problem (and bear in mind that even one of them might be a very serious problem indeed).

On 25 April, the legal newsletter ‘Roll On Friday’ identified several examples of legal firms who have reinforced misunderstandings of the judgment in their early reactions to it.

Further comment from bodies in receipt of substantial funding from the Scottish Government that we have noted is provided below.

Equality Network

In a letter published in The Herald on 25 April, the Equality Network Director stated:

Women being, once again, reduced to biological sex and reproductive capability is a grim leap back in time, undoing decades of the work of those who came before us. Sadly, these feminists are not the ones being given the media spotlight this week, despite their scale and strength. Nobody won anything at the Supreme Court …. The judgment said that for the purposes of the Equality Act ‘sex’ in the Act refers to ‘biological sex’. It did not in fact generally define women by this, however this is the narrative that is being spun, and celebrated in some corners of the media and amongst small and loud groups of gender critical activists…. Feminism is not exclusionary, it does not require proof of womanhood, it does not require women to look any certain way. Living as a woman means experiencing sexism, misogyny, violence and derision regardless of what body parts, chromosomes or gametes you have, regardless of your body, how you dress, how you carry yourself, where you’re from or how much money you have.,… Biological determinism being hailed as a win for feminism is a massive knock back to the feminist movement. If our entire being can be determined by our anatomy as observed at birth, and as such in a binary way, then we have all lost, painfully. Being boxed in to a binary progresses us nowhere, it shoves us violently backwards. It can only serve to limit women. This is a patriarchal dream; this is not women’s liberation. 

Rebecca Don Kennedy, CEO Equality Network, 25 April 2025

Engender

Engender is largely funded by the Scottish Government as ‘Scotland’s feminist membership organisation’, and receives well in excess of £0.5m a year. Immediately following the ruling it commented:

….From our initial reading, we are disappointed that this ruling appears to take a regressive view of the protections provided by the Equality Act. For us, the Equality Act represents the floor and not the ceiling of what we need to achieve on equality as a society….

Generations of feminists have fought against women being defined by our reproductive function and bodies. We will therefore be playing close attention to what this decision will mean in practice for women. As intersectional feminists, we remain concerned about what this means for trans people’s rights.

We note that in addressing MSPs last week, Ms Somerville mentioned that she had spoken with the Women’s Rights Network (which campaigns for women’s rights based on sex) in an early round of telephone calls after the judgment, but did not mention speaking to Engender. Similarly, the Committee appears to have written to the Equality Network in its capacity as the lead ‘intermediary; organisation for those covered by gender reassignment, but not to Engender, which is funded to perform the same role for women.

STUC

This BBC piece (27 April) reports a response from STUC, which also receives a large amount of Scottish Government funding that the ruling is “extremely problematic.”