Definition of woman in the Equality Act 2010 includes Gender Recognition Certificate holders

The Court of Session has heard a second judicial review challenge by a campaign group, For Women Scotland Limited, in relation to statutory guidance produced by the Scottish Ministers with regard to the definition of “woman” for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018.

The first case related to the definition of “woman” in both the 2018 Act and in the associated guidance which included “a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”. The Inner House ruled that this original definition impinged on the interpretation of the Equality Act 2010 (which is reserved to Westminster) therefore both the definition of “woman” in the 2018 Act, and the associated statutory guidance were reduced (For Women Scotland Ltd v The Lord Advocate [2022] CSIH 4).

Revised statutory guidance was then issued in April 2022 which states that: “…‘woman’ in the Act has the meaning under section 11 and section 212(1) of the Equality Act 2010. In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.”

The petitioner contends that the definition of “woman” in the Equality Act 2010 is to be taken as a reference to “biological woman” and that any attempt to conflate that concept with that of a person who has an acquired gender of female in terms of a gender recognition certificate (GRC) issued under the Gender Recognition Act 2004 is impermissible.

The question for the court this time round was whether or not, as a matter of law, the definition of “woman” in the Equality Act includes those persons holding a GRC stating that their acquired gender, and thus their sex, is female. The judge made clear that this is a point of legal interpretation, and not a reflection of the contentious policy issues at play in this area.

Decision

The judge concluded that, in this context, “sex” is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the Gender Recognition Act 2004 stating their acquired gender, and thus their sex.

In reaching this conclusion, the judge rejected For Women Scotland’s interpretation of the Gender Recognition Act as being symbolic, simply to allow those to whom it mattered, or to whom it might bring psychological comfort, to obtain a GRC. The founding principle of that Act is that the acquired gender becomes the person’s sex “for all purposes”. The Equality Act 2010 was drafted in full awareness of the 2004 Act, and its ambit. It was open to drafters to include only “biological” women in the 2010 definition but they did not.

The judge also noted that the petitioner’s argument erroneously conflates holding a GRC with the protected characteristic of gender reassignment in terms of the 2010 Act. The definition of gender reassignment describes a much broader concept, not only obtaining a GRC. Thus whilst a person in possession of a GRC may share the protected characteristic of gender reassignment, their sex for the purposes of the 2010 Act is female, or male, according to the terms of their GRC.

The consequence of this decision is that the revised statutory guidance issued by the Scottish Ministers on 19 April 2022 is lawful.

Access the judgment: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2022csoh90.pdf?sfvrsn=8eee302c_1