Lady Haldane will issue her judgment on the Scottish government’s challenge to Westminster’s S.35 Order on the GRR Bill at ca. midday Friday. It will be the first on how far, if at all, Westminster can limit the Scottish government’s devolved legislative powers. It will also have implications for the Equality Act and how trans rights affect women’s rights. That there is a clash between them has not been in doubt since the High Court’s July 2021 decision on women’s prisons, where the court expressly stated this. Whatever the Haldane decision, it will likely not be the last word on this issue. If the losing party appeals, no final decision is likely before the next election.

There have been 2 other recent relevant Scottish decisions, which matter when assessing what this judgment will mean in practice.

The Dorrian judgment

On 1 November Scotland’s Court of Session rejected the appeal by For Women Scotland against the Scottish government’s definition of “woman” for the purposes of the Gender Representation on Public Boards (Scotland) Act 2018. The Court ruled that a GRC did change, for legal purposes, a person’s sex under the Equality Act, as argued by the Scottish government. “Sex” is therefore not limited to birth or biological sex. It includes legal sex as changed by a GRC granted under the GRA 2004.

This means the following:-

1. The granting of a GRC is not a simple administrative measure affecting only the applicant (as some claim). It affects others in the same sex category since there are rights which flow from being in that category.
2. The court stated that a person without a GRC, no matter how they identified or presented, remained a member of the sex they were born and had no prima facie right to use or access single sex spaces or services intended for the opposite sex. This is contrary to what many believe and lobby groups advise. A man may fall within the “gender reassignment” category but, without a GRC, has no legal right to go into a woman’s changing room or access a female only service.
3. If a person does have a GRC there is a presumption that they can access the spaces and services meant for the opposite sex. But they can still be kept out if this is for a legitimate reason and the means are proportionate. This is difficult for service providers to understand let alone implement without the risk of legal action. There is a very real risk of them not bothering to insist on the exceptions and women losing single sex spaces and services.
4. The position for associations is even worse. The proportionate means for a legitimate purpose exception is not available to them at all. Any association of 25 women or more must allow men with a GRC to join. It is now unlawful in Scotland for there to be a female only association – e.g a woman’s support network for victims of male violence, women only choir, walking group or professional network.
5. The most curious consequence is how the Court has effectively rewritten the definition of sexual orientation in the EA. Any association based on sexual orientation linked to same sex attraction is also now unlawful in Scotland if it numbers more than 24. Bluntly, rights which lesbians and gay men had a year ago – to associate with each other only on the basis of their sexual orientation – have been lost.

If Lady Haldane rules in favour of the Scottish government’s challenge, the impact of anyone over 16  being able to obtain a GRC on their word alone will have a significant impact on the continued existence of single sex spaces, services and associations. There is a very real risk they will effectively vanish. But even if Westminster does not to appeal the decision, there will likely be more court cases using the ECHR, particularly Articles 8, 9 and 11.

Scottish Prisons

The Scottish Prison Service this week issued an updated policy for how convicted men claiming to be women should be treated. They “will not be eligible” for a women’s prison if convicted of crimes including murder, assault, robbery, abduction, rape and sexual harassment. But. (There is always a but.) They can go to a woman’s prison if the Risk Management Team and another panel consider there to be “compelling evidence that they do not present an unacceptable risk of harm to those in the women’s prison.” In short a male rapist could be sent to a women’s prison. Quite what evidence would be more compelling than an actual conviction is not made clear. Note also the reference to an unacceptable risk. An acceptable risk to women in prison is fine. Women prisoners – a group with a strong claim to be one of the most vulnerable and marginalised groups of all – no longer have in this country the right to be protected by the state from the fear or risk of violence or sexual assault by males because this might upset the feelings of men who think they are – or would like to be – women. 

So much for the legal and practical consequences (some of them anyway). What of the political ones?

If the Scottish Government wins it will provide a significant boost to the SNP which has lately been rather battered by events. And to the Greens, whose flagship policy this is. What effect this will have on Scottish Labour is less clear. It may also put renewed pressure on Labour in England to support gender self-ID, which has – until recently – been its policy. It may also mean that it does not pursue any further legal appeals.

 A loss would also be a blow to the Sunak government. But given its current confused state, this may make little difference, merely adding to the impression that it is not in control of events. Would a win change matters? Unlikely. Voters’ general perception of the Tories has been baked in for some time. A loss would certainly be a blow for the SNP but might provide an elegant exit for Labour from some of its self-inflicted agonies on this issue.

Much will depend on precisely the basis for the decision. It will be an important constitutional and judicial review judgment, as much as an equality law one. It will require careful reading and even more careful understanding. In the immediate aftermath expect more heat than light therefore.

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