November 1, 2023 - 5:50pm

Today, the Inner House of the Court of Session delivered judgment in the appeal of For Women Scotland v the Scottish Ministers on the meaning of “sex” in the Equality Act, with the feminist group losing their challenge. The decision comes against the backdrop of an increasingly heated public debate on the relationship between trans rights, women’s rights, and gay rights. 

It is unlikely that any of these groups will be fully satisfied by the decision. Ordinarily, that might signal a good compromise, but the correct interpretation of the law is rarely determined by splitting the baby. 

The key development that comes from this case is the unequivocal conclusion that sex in the Equality Act means biological (or birth) sex unless modified by a Gender Recognition Certificate (GRC). This means that, for example, trans women without GRCs are men for the purposes of the Equality Act, because they are male. The court was clear that they therefore have no right to use or access services intended for the opposite sex. This includes toilets, changing rooms, rape crisis centres and other sex-separated or sex-specific services. 

In contrast, if one does have a GRC, the legal position changes. Trans women who have GRCs will be classed as women and trans men who have GRCs will be classed as men. They will have a presumptive right to use the services intended for the opposite sex because they are now legally classed as members of that group. 

This does not mean that service providers can never exclude a biological male from a women’s service, however. There is an exception in the Equality Act which allows for this exclusion if it is proportionate, meaning it is more likely to be lawful to exclude a male with a GRC stating they are a woman from a rape crisis centre or a changing room than it will be to exclude them from women-only hair salon or leadership training course. 

These exceptions do not apply to associations or educational institutions, however. Associations under the Act are groups of people organised for some purpose where admission is regulated and involves a process of selection and where there are at least 25 members. 

The result of this case means that women-only associations, including groups organised for grassroots political advocacy or women’s support networks for victims of male violence will not be allowed to exclude males who have GRCs stating that they are women if that is why they are excluded. Similarly, associations of lesbians or gay men cannot exclude GRC holders on the basis of their biological sex. Any association set up on the basis of biological sex or on an understanding of sexual orientation which is tied to same-sex attraction is, following this judgment, unlawful. 

The Court of Session has therefore interpreted the law to mean that there is no protection afforded to biological males and females as distinct groups. Because rights under the Equality Act now depend on possession of a GRC, this strengthens the position of the UK Government in the ongoing judicial review of the use of Section 35 of the Scotland Act to veto the Scottish Gender Recognition Reform Bill.

This case clarifies that a GRC is unequivocally not a mere administrative document. Possession of a certificate has wide ranging consequences under the Act. It is therefore increasingly likely that a court will conclude that a Scottish bill seeking to dramatically modify who can obtain one of these certificates does modify the operation of the Equality Act and therefore may engage Section 35. While not exactly a victory for Westminster, the removal of the right to association for women will inevitably inspire a strong political response.

Dr Michael Foran is a lecturer in law at the University of Glasgow and Senior Fellow at Policy Exchange.

Michael Foran is Senior Fellow, Policy Exchange and Lecturer in Public Law, University of Glasgow