The SC’s controversial decision in For Women Scotland (FWS) is the focus of this month’s Briefings, for which articles have been commissioned from three different perspectives to ensure a diversity of views on its far-reaching consequences.

The SC’s task was to find a coherent interpretation of the word ‘sex’ between the Equality Act 2010 (EA) and the Gender Recognition Act 2004 (GRA). It had to decide whether the EA treats a trans woman with a gender recognition certificate as a woman for all purposes within its scope, or whether, when parliament drafted the EA, it intended the words ‘woman’ and ‘sex’ to refer to a biological woman and biological sex. The decision that the correct interpretation is ‘biological sex’ has called into question whether the court has struck a fair balance between the rights of one group, i.e. women, lesbians and gay men, and the rights of transgender persons.

The SC recognised that rights protected by the EA can conflict with or contradict one another in some circumstances and this conflict is debated in Briefings.

For Karon Monaghan KC, the SC’s decision was inevitable; she refers to legislation preceding the EA, including the Equal Pay Act 1970 and the Sex Discrimination Act 1975, in which it was clear that sex meant biological sex. This definition was not altered by legislation¹ which aimed to protect the rights of trans people in relation to gender reassignment; the definition of sex as a binary concept was not modified by the EA. She argues that had the court interpreted sex as including ‘certificated sex’ in line with the GRA, it would have seriously impaired the rights of women wishing to protect their privacy in single-sex spaces and, by rendering the characteristic of sexual orientation meaningless, would have undermined the rights of lesbians and gay men.

Robin Allen KC also addresses this conflict and the judgment’s creation of a hierarchy of rights within the EA. As he states, ‘The SC has decided that the EA should be interpreted to promote women’s dignity and autonomy when that comes into conflict with the dignity and autonomy of male-to-female transgender persons’. He expresses concern at the lack of any advice from the SC on the practical implementation of this hierarchy. He questions whether the acceptance of sex and gender as binary concepts is becoming outdated in the way, for example, these do not accommodate people who are born with non-typical sex characteristics, or whose sex development is different to most other people’s.

Jess O’Thomson and Oscar Davies consider that the SC failed to take into account the human rights implications of its decision. They refer to case law under the European Convention on Human Rights (ECHR), which has established gender identity as an important aspect of private life under Article 8 and ‘places states under a positive obligation to ensure proper legal gender recognition which must be practical and effective rather than theoretical and illusory’. If the SC had properly engaged with the ECHR framework, it would have realised a conclusion that sex means biological sex would be non-compliant with the ECHR. As the court failed to do so, they argue that the Article 8 rights of trans people have been violated and they will be pushed into living as, per Lady Hale in R(C)², ‘a member of a “third sex”’.

Robin Allen expresses concern about the lack of nuance in the binary approach to sex and the exclusion of trans people from full entitlement to the rights of their new gender, and questions whether this is sustainable in light of ECHR case law. He poses a question about enlarging the ‘concept of sex to something like that of race and ethnicity, not binary but as having a range of different aspects’.

FWS concerns principles at the heart of equality - dignity, fairness and respect. The DLA is concerned about a perceived shift away from these principles in public life and a move away from equality, diversity and inclusivity (EDI) in the workplace. It calls for clear guidance for businesses and employers on implementing EDI policies and culture.

The DLA calls for the reigniting of the debate about promoting a culture where people can live and work without feeling threatened or scared for being different.

Geraldine Scullion Editor, Briefings