Was Scottish guidance stating that trans women with a gender recognition certificate (GRC) could claim protection as women under Equality Act 2010 lawful?
Yes, confirmed the Inner House of the Court of Session in For Women Scotland Ltd v Scottish Ministers.
The Gender Recognition Act 2004 introduced, in Scotland only, gender recognition certificates as a means by which a trans person can obtain legal recognition of their acquired gender. Under section 9(1) Gender Recognition Act 2004, once a GRC is issued, a person's gender is "for all purposes" their acquired gender.
Scottish ministers produced revised statutory guidance on the Gender Recognition Act in April 2022 which stated:
"‘woman’ in the Act has the meaning under section 11 and section 212(1) of the Equality Act 2010. In addition, in terms of section 9(1) of the Gender Recognition Act 2004, where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person's sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person's sex becomes that of a man". (Paragraph 2.12.)
For Women Scotland Ltd argued that, amongst other things, sex in Equality Act 2010 means biological sex and that the guidance was incorrect. The Inner House of the Court of Session disagreed and found that nothing in the Equality Act 2010 confined ‘sex’ to biological sex. The guidance was lawful.
This decision is undoubtedly correct in light of the Equality Act 2010 in its current form but change may be afoot soon given the recommendation made earlier this year by the Equality and Human Rights Commission that the UK government should consider redefining "sex" in the Equality Act 2010 to mean biological sex. If the Act is amended to explicitly exclude trans women with a GRC from the definition of "woman", the guidance reviewed in this case would become incompatible with the Equality Act 2010 as amended.
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