Will the Supreme Court (“SC”) deprive women of their sex-based rights?

This week we have a hearing which will be the UK’s equivalent of the US’s Dobbs case, which limited rights which women had taken for granted for a long time. (Contrary to what some may rush to assume, this case is not about trans rights but about the rights of women – 51% of the population and not, therefore, a trivial matter. Nor is it about culture. Legal rights matter. Only those who have never had to fight for these could think otherwise.)

For the next two days the SC will hear arguments about what “sex”, “male”, “female” and “sexual orientation” mean in the Equality Act 2010 (“EA”) and whether their EA definitions have been changed by the Gender Recognition Act 2004 and its introduction of a Gender Recognition Certificate (“GRC”) which purports to change a person’s sex for various legal purposes. It is a complex, dry argument about legal interpretation, statutory construction, what Parliament intends, what the test is and so on. But it will have real world effects.

What the Supreme Court cannot do is change the material biological reality of the male or female sex. But what it may do is introduce the concept of legal sex based on possession of a certificate in addition to that biological reality and in a manner which affects the rights currently attached to sex. If it does, this will have real world consequences for the legal rights which men and women currently have based on their biological sex. In practice, any such change will affect women far more than men because the rights dependant on sex in the EA are exceptions to the principle of non-discrimination. Women are the main beneficiaries because those exceptions exist to eliminate or mitigate the harms and disadvantages that women face because of their sex. And, it needs saying, from the opposite – male – sex. They are in many fields – intimate spaces, intimate services, pay, promotion, sport, recovery from violence and assault and so on. Worth noting that gay people would also lose existing rights because sexual orientation is based on sex so any change to the latter necessarily affects the former.

The appellant is For Women Scotland (“FWS”). They lost the argument in the two lower Scottish courts. Their position is that a GRC does not change the definitions contained in the EA and that these are – or should be – based on biology not possession of a legal certificate. In essence, their case is that a GRC changes the position of a person vis-à-vis the state but does not change matters for the purpose of anti-discrimination law based on sex. (A trans person has anti-discrimination protections under the gender reassignment protected characteristic which is unaffected by this case – protections first introduced in 1999 and incorporated into the EA.)

Several parties have been allowed to intervene: Amnesty International, which supports the Scottish government, the EHRC which has an odd position (discussed further below), Sex Matters, Scottish Lesbians/Lesbian Project/LGB Alliance, all supporting FWS’s position.

The submissions and views of lawyers specialising in this field on both sides of the argument can be read here, here and here.

A few points arise from ScotGov’s submissions:

1.    This case shows, contrary to what is often stated, that rights can often be pie. This is explicit in the submissions of ScotGov, Amnesty and the EHRC. If FWS lose, women in the U.K. will lose existing rights. Scottish lesbians have already done so because of the decision of the lower Scottish court.

2.    Scot Gov’s position is that a GRC does impact the EA and change its definitions, contrary to what it argued in Holyrood during the passage of its self-ID Bill. Ironically, if it loses in the SC, there would be no basis for the S.35 Order and its self-ID Bill could go ahead.

3.    It states openly in its submissions that women should not be treated as a class or category based on their sex and therefore should not enjoy any rights linked to that sex – see para. 76. “Woman” can only mean some women (ie not women who have a GRC) and men who have a GRC. It is the existence of a legal certificate which defines whether someone belongs to a category and enjoys that category’s rights.

4.    There is no requirement for any bodily modification (surgical or hormonal) for a GRC. That GRC cannot be made public by any organisation obtaining that information in an official capacity. Contrary to what is often stated, however, a GRC can be asked for. The practical implications of having a category based on the existence of a certificate which may be secret in some circumstances have not really been addressed. If a man says he has a GRC, how is this to be disproved? And if it can’t be, how can any man be kept out of a category he does not belong to?

5.    A man attracted to women (ie a heterosexual) who gets a GRC but continues to be attracted to women becomes a lesbian. A woman attracted to men who gets a GRC and continues being sexually attracted to men becomes a gay man.

6.    Lesbians should not have the right to associate with other lesbians (more than 24 anyway) in any sort of association but must allow in a man with a GRC regardless of their own wishes. No does not mean No. (See para. 75.)

Amnesty’s position is that as a matter of policy there should be no single sex spaces, services, or associations for women, regardless of women’s own wishes or the risks to them if these are not permitted. Contrast this with its stated position on female Syrian and Iranian refugees – that they should be given at a minimum single sex, well-lit toilet facilities because of the risk of abuse. What is good enough for them should be denied to women in Britain, presumably because the risk of abuse has been eliminated. Who knew?

The EHRC agrees with the Scottish government but says that this interpretation leads to such absurd results which cannot have been intended by Parliament that it should clarify the EA to make clear that “sex” only means biological sex. If the outcome of the case is that sex means a combination of biology and certificates, this will pose a political problem for the government. Its stated position – for the moment, anyway – has been that single sex spaces should be maintained based on biological sex. But if FWS lose, that position is no longer lawful and it will face pressure in different directions from various parts of of its voting coalition.

What these 2 Acts show however are the perils of poor drafting, loose language (sex and gender used interchangeably in an inconsistent way), different and inconsistent definitions in different Acts, a failure to think through the practical, social and legal consequences of legislation and the consequences of rushed legislation either at the start or end of Parliaments. There are lessons for MPs now as they face voting on another Bill with potentially momentous consequences for all. Rushed legislation, assumptions that all will be well rather than carefully thinking through all the consequences, the unintended ones as well as the intended ones, a lack of transparency, proper consultation and making misleading statements about what laws mean lead to poor law-making. The resulting court cases are good for lawyers and commentators on the law but no-one else.

What will the result be? Will it end up in the European Court of Human Rights? Who knows? The arguments, if maybe not the outcome, will be fascinating – for lawyers, at least.

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