Trans women can take seats on public boards set aside for women, Scottish judge rules

Guidance that extends definition of ‘woman’ to transgender women with gender recognition certificate is lawful, court rules

Scotland’s highest court has ruled that transgender women should be included in legislation aimed at improving gender balance on public boards.

The court of session found that Scottish government guidance that extends the definition of “woman” to transgender women with a gender recognition certificate (GRC) is lawful.

The ruling dismissed a second judicial review of the Gender Representation on Public Boards (Scotland) Act 2018 brought by the campaign group For Women Scotland.

The legislation has been the subject of a long-running court action by the group, which resulted in a ruling on appeal earlier this year that the legislation should not have included transgender women in its definition of “woman” as this “conflated” two distinct groups that are protected in law.

But Lady Haldane on Tuesday dismissed the latest challenge, accepting the argument brought by Scottish government ministers that it was clear the UK parliament had intended the 2004 Gender Recognition Act to enable a person to legally change their sex “for all purposes” and that person would then be entitled to the protection of sex under the Equality Act 2010, which the guidance refers to.

In her judgment, she stated that the meaning of “sex” for the purposes of the 2010 Act “is not limited to biological or birth sex, but includes those in possession of a GRC”. She added that this need not conflict with other legislation – for example another recent Holyrood law about sexual assault victims’ choice of medical examiner – where it is clear “sex” does mean biological sex.

She also stressed that sex and gender reassignment were “separate and distinct” protected characteristics under the Equality Act, but nor were they necessarily mutually exclusive.

Haldane insisted her ruling on a narrow point of law could not take in the “contentious social policy debate” ongoing in Scotland around transgender rights, with the Scottish government’s gender recognition reform bill due for its final reading at Holyrood next week.

The proposals to simplify how transgender people can change the sex on their birth certificate have encountered heavy criticism from the UK government, the EHRC and the UN.

Expressing their “huge disappointment” at the ruling, For Women Scotland said there were “clear ramifications” for the bill. “At first reading this seems disastrous for women who are seemingly now no longer recognised in law as a sex-class, with distinct requirements of our own … It is now beyond doubt that the bill is not a ‘simple administration change’ but does have a wider impact on society.”

But other equalities groups and the Equality and Human Rights Commission (EHRC) said the ruling confirmed the status quo.

Vic Valentine, the manager of Scottish Trans, said: “This ruling does not affect the exceptions in the Equality Act, which mean that single-sex services can exclude trans people or treat them less favourably where it is a proportionate means to a legitimate aim … They can do that whether or not the trans person has a GRC.”

A spokesperson for the EHRC, which was named as an interested party in the judicial review, said: “The law concerning matters of sex and gender can be complex, and clarity is essential for the public bodies, employers, service providers and people across the country who rely upon it.

“Today’s judgment supports our understanding that the effect of a gender recognition certificate is to change a person’s legal sex, including for the purposes of the Equality Act”.

A Scottish government spokesperson said: “We are pleased to note the outcome of this challenge.”


Libby Brooks Scotland correspondent

The GuardianTramp

Related Content

Article image
EHRC has not taken sides in debate on impact of transgender laws, Scottish court told
Equalities watchdog tells judicial review of law on gender balance it is ‘regrettable but probably inevitable’ it is seen as partisan

Libby Brooks Scotland correspondent

10, Nov, 2022 @7:36 PM

Article image
UK review of gender recognition list risks ‘trans travel ban’
Campaigners condemn government move to review list of countries whose GR certificates are automatically recognised

Libby Brooks Scotland correspondent

10, Jan, 2023 @8:51 PM

Article image
Trans people can be excluded from single-sex services if ‘justifiable’, says EHRC
UK government’s equalities watchdog says justifications could include reasons of privacy or health and safety

Rajeev Syal Home affairs editor

04, Apr, 2022 @2:31 PM

Article image
LGBT+ groups call for EHRC to lose international status over trans stance
Equality watchdog accused of excessive government interference and ‘politically motivated’ appointments

Libby Brooks

11, Feb, 2022 @1:02 PM

Article image
Lawful to imprison trans women sex offenders in female jails, judge rules
High court for England and Wales rejects challenge of former inmate who claims she was sexually assaulted by trans prisoner

Haroon Siddique

02, Jul, 2021 @7:26 PM

Article image
LGB Alliance provides ‘public benefit’, court hears, in case brought by trans group
Claim made in final arguments of action brought by Mermaids seeking removal of charitable status from LGB Alliance

Amelia Gentleman

07, Nov, 2022 @7:43 PM

Article image
UK lobbies for trans rights in UN treaty but allows term ‘pregnant women’
Foreign Office says it has not asked for expression to be swapped for ‘pregnant people’, which some campaigners have called for

Haroon Siddique

23, Oct, 2017 @10:57 AM

Article image
Trans woman guilty of raping two women remanded in female prison in Scotland
Politicians, campaigners and UN special rapporteur concerned by case of Isla Bryson, who offended before she had transitioned

Libby Brooks

25, Jan, 2023 @6:49 PM

Article image
Nicola Sturgeon pledges gender recognition law reform for trans people
SNP leader’s vow includes pledge to ensure Scotland legislates for non-binary gender recognition if party wins Holyrood election

Libby Brooks Scotland correspondent

01, Apr, 2016 @12:54 PM

Article image
Scottish plans to include transgender women in equality law tested in court
Judicial review begins over definition of ‘woman’ in 2018 law to improve gender balance on public boards

Libby Brooks Scotland correspondent

09, Nov, 2022 @6:33 PM