A Question of Sex…or Gender?

Protected characteristics of sex, gender reassignment and philosophical belief have not been far from recent headlines.

In January 2023, the Secretary of State for Scotland made an order under section 35 of the Scotland Act preventing the Scottish Parliament’s Gender Recognition Reform (Scotland) Bill (“the Bill) from receiving Royal Assent. This is the first time the power has been used since it was introduced in the Scotland Act 1998. The power can be used if a Bill contains provisions which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law applying to matters reserved to the UK Government. The Secretary of State believes the Bill would have an adverse effect on the operation of equalities legislation, the Equality Act 2010 (the “Equality Act”). It has been widely reported that the SNP majority Scottish Government which passed the Bill views this as not respecting its democratic process.

The Bill currently sits in limbo. It would, had received assent, have had the effect of changing the process for changing a person’s legal sex by Gender Recognition Certificate (“GRC”) in Scotland. The process is currently the same in Scotland as in the rest of UK under the Gender Recognition Act 2004 (the “GRA”). It involves a medical diagnosis of gender dysphoria and the need to provide evidence to a gender recognition panel to show them the applicant has lived in the acquired gender for two years and intends to do so permanently.

If a full GRC is issued to a person under the GRA, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).  They have the legal rights afforded to their acquired sex.

The Bill provides that a person with a Scottish birth certificate, or who usually lives in Scotland, could self-certify their acquired gender after living as that gender for three months. There would be no need for a psychiatric diagnosis of gender dysphoria. It extends the right make an application for a GRC to 16 and 17 year olds (allowing a three month “reflection period”).

The Secretary of State for Scotland says that the Bill will adversely affect the operation of the Equality Act on equality matters reserved to the UK.  

The changes in the Bill would potentially have been relevant to definitions in the Equality Act underlying the protected characteristics of sex, gender reassignment and/or sexual orientation; particularly the definitions of “man” and “woman” for discrimination claims.

A GRC is not a requirement of the protected characteristic of gender reassignment in the Equality Act. A person will have that protected characteristic if they are proposing to undergo, are undergoing or have undergone a process of reassigning their sex.  A person may have the protected characteristic of gender reassignment, but if they do not have a GRC, their sex for the purpose of relying on sex based protections in the Equality Act is their “biological” legal sex, because it has not been changed for legal purposes by a GRC.

The Gender Representation on Public Boards (Scotland) Act 2018 (“GRPB(S)A”) has the object of ensuring a gender balance on public boards in Scotland. Two cases have considered the definition of “woman” in the Equality Act, relevant to the GRPB(S)A,

Firstly, judicial review proceedings were brought in For Women Scotland Ltd v Lord Advocate(FWS1), about the definition of “woman” in the GRPB(S)A and related statutory guidance which included trans women. The challenge was on the basis it was not competent for the Scottish Parliament to expand the definition of “woman” in the Equality Act, (the definition being “a female of any age”). On appeal, it was held that the definition impinged on a reserved matter and the definition was declared to be ineffective.

After this, Scottish Ministers produced updated guidance which included that the definition of “woman“ in the GRPB(S)A was as in the Equality Act, and that for the purpose of the GRPB(S)A, it included trans women with a GRC.  FWS subsequently unsuccessfully sought judicial review of the updated guidance on the GRPB(S)A (FWS2). They said that in the Equality Act, “woman” was a biological woman. The court held the definition of “woman” is not limited to biological or birth sex, but “includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex” for the purpose of the GRPB(S)A guidance. It is reported that FWS is considering further appeal. This is potentially controversial for other Equality Act claims. This is a binding decision in Scotland and is persuasive in England and Wales.

A person’s legal sex (and so, whether a person who has the protected characteristic of characteristic of gender reassignment has a GRC) is important for comparators for direct discrimination, equal pay claims and for the question of single sex service provision which needs to be justified in the circumstances.

On the face of it, the Bill would have had the effect of widening the category of people in the relevant circumstances who wished to apply for GRC. Their hopes have been “stymied”. Others say that in practical terms, the impact of the introduction of the Bill would have been minimal.

The question of what happens next with the Bill in Scotland is live in the campaigns for the SNP and First Minister leadership contest. It has been reported that the Scottish Government’s plan to seek judicial review of the Secretary of State’s section 35 order is on hold pending the current SNP and First Minister leadership election. Whether to go ahead is likely to be a decision for the new First Minister rather than outgoing Nicola Sturgeon.

There is a lot to look out for in discrimination law this year in “gender critical” philosophical belief in which recent cases highlighted the tension between the rights of those with different protected characteristics. Maya Forstater, whose appeal to the EAT overturned an Employment Tribunal’s decision in her claim against CDG Europe that her gender critical beliefs were not a protected characteristic, returns to the Tribunal in March for it to decide on her compensation. She is also campaigning for the UK Government to clarify the definition of “sex” in the Equality Act is biological, not legal sex.

Allison Bailley, the lesbian barrister who successfully sued Garden Court Chambers for philosophical belief discrimination and victimisation relating to her gender critical beliefs has appealed the decision of the Employment Tribunal which did not uphold her claims against Stonewall for instructing, inducing, or causing Garden Court Chambers’ discrimination. There are very few cases in this area so it is one to watch for.

We will be keeping a look out for developments.

Katy Webberburn is a Scottish Employment & Discrimination Partner who advises clients on all areas of employment law and has been ranked for employment law in Scotland since 2019. To get in contact with Katy, click here.