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The petition of For Women Scotland Limited for Judicial review of the revised statutory guidance produced by the Scottish Ministers under Section 7 of the Gender Representation on Public Boards (Scotland) Act 2018

Case reference number

P578/22

Date of hearing

Wednesday, 4 October 2023

Division

Second Division: Lord Justice Clerk, Lord Malcolm, Lord Pentland

Agents

  • For the Reclaimer: O’Neill KC, Balfour and Manson 
  • For the Respondent: Crawford KC, Scottish Government Legal Directorate

Reclaiming motion (Appeal)

Opinion of The Second Division in the Reclaiming Motion For Women Scotland Limited against The Scottish Ministers: [2023] CSIH 37

Judgment Reclaimed

Opinion of Lady Haldane in Petition of For Women Scotland Limited: [2022] CSOH 90

Watch previous livestream hearing

Date of hearing: Wednesday, 4 October 2023

Case description

Does the definition of “woman” under the Equality Act 2010 include biological males who have acquired a Gender Recognition Certificate issued under the Gender Recognition Act 2004? The issue arises in the context of the Gender Representation on Public Boards (Scotland) 2018, which seeks to address the under-representation of women on the boards of Scottish public authorities. As originally passed, it defined “woman” as including those with the protected characteristic of “gender reassignment”, whether or not they had acquired a GRC. In an earlier case the Inner House struck down that provision on the basis that it conflated two separate and distinct protected characteristics, which was a reserved matter and thus outwith the Scottish Parliament’s legislative competence (see [2022] CSIH 4).

In light of the Inner House judgment, in 2022, the Scottish Ministers issued revised statutory guidance, in which “woman” was defined as including those who have acquired a GRC. The petitioners sought judicial review of the guidance, contending that it was unlawful because it failed to comply with the Inner House’s earlier judgment. The Lord Ordinary refused the petition. The guidance was lawful. “Sex” could have a variable meaning depending on the context, but under the 2010 Act it included those in possession of a GRC. The Inner House had not authoritatively determined the meaning of “sex” under the 2010 Act in its earlier judgment. Section 9(1) of the 2004 Act was in clear terms: where a person is issued with a full GRC, their sex becomes “for all purposes” that of their acquired gender. “Sex” and “gender reassignment” remained distinct protected characteristics, but there was no reason to treat them as mutually exclusive. The 2004 Act was not impliedly repealed by the 2010 Act. The former being a “weighty” statute, there was a strong presumption against implied repeal of it.

The petitioners challenge the Lord Ordinary’s decision on five grounds. First, the previous Inner House decision established that the definition of “woman” under the 2010 Act excludes biological males. This was part of the court’s reasoning or should have at least been regarded as highly persuasive. Secondly, to treat “sex” as being capable of having different meanings depending upon context is unworkable and impractical. Thirdly, section 9(1) of the 2004 Act was interpreted without reference to the context and history of the statute. The provision has become redundant in light of equal marriage legislation. Fourthly, there is no presumption against implied repeal and it does not require that a particular intention be attributed to Parliament. Fifthly, the purpose of the 2018 Act has been subverted or undermined. The positive action measures therein were for “women” and the only evidence indicating under-representation relates to women overall.

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