For Women Scotland and "Legal Lesbians"
This post is a part of a series that I am doing in the legal aspects and implications of the appeal in For Women Scotland v The Scottish Ministers that will be heard by the UK Supreme Court at the end of November 2024.
The central question to be decided in this case is whether guidance issued by the Scottish Government about the meaning of the word “woman” in the Equality Act 2010 is lawful. That guidance states that a person with a full Gender Recognition Certificate (GRC) which confers upon them the acquired gender of female is a woman for the purposes of the Equality Act 2010. For Women Scotland have challenged the accuracy and therefore lawfulness of this guidance, claiming that the definition of woman in the Equality Act is tied to natal biological sex.
This post concerns the implication of this case for the protected characteristic of sexual orientation.
The protected characteristic of sexual orientation is defined in s.12 of the Equality Act 2010 as
a person’s sexual orientation towards –
(a) persons of the same sex,
(b) persons of the opposite sex, or
(c) persons of either sex
If sex in this context is taken to be modified by GRC possession then there will be two important implications.
Who is sexually oriented towards persons who share the same government certificate?
The first implication of this interpretation is that biological males or females who are oriented towards members of the same natal biological sex will not be covered under this provision. To be oriented towards members of the same sex one would instead need to be a member of one legal sex who is sexually oriented towards members of the same legal sex, as determined by possession state documentation.
To have a sexual orientation towards persons of the same sex, on this interpretation, one would need to be, for example, legally female, either because one is biologically female without a GRC or because one is biologically male with a GRC, and attracted only to other legal females. To be covered under this category, one’s sexual orientation would need to depend upon whether someone possessed the right documentation.
Orientation does not imply that one is attracted to every member of a group but it does imply that one is only attracted to members of a particular group. It is hard to imagine anyone who is only attracted to those of one biological sex who don’t have a formal document, coupled with those of the opposite biological sex who do have this document but who is attracted to nobody in the reverse group.
This is not a natural category. It does not track biology, physical appearance, or even gender identity. If this is the correct interpretation of sexual orientation, the categories of same-sex oriented and opposite-sex oriented under s.12(a) and (b) of the Equality Act will cover a null set. There is nobody whose sexual orientation depends upon possession or lack of a particular government certificate. People have all sorts of sexual interests but sexual orientation isn’t about attraction in itself, its about the group of persons one is exclusively sexually attracted to: if you are same sex oriented, you are only attracted to memebers of the same sex.
Nobody is exclusively attracted to members of the same legal sex. Even those who adopt a more fluid understanding of their sexuality do not place any significance, in terms of exclusive attraction, on what government document an individual possess. Nowhere will a GRC make a difference for whether a given individual is sexually oriented towards another person. If same-sex sexual orientation is taken to track legal categories rather than natural categories, those whose sexual orientation tracks natural categories (natal females who are sexually oriented towards natal females, for example) will not be covered under s.12(a).
The direct implication of this approach to interpreting the word ‘woman’ in the Equality Act will be that the category of “same-sex” for the purposes of s.12(a) will not include anyone whose sexual orientation is based on natal biological sex. If this is upheld in the Supreme Court, everyone whose sexual orientation differentiates on the basis of biological sex will lose protection. Nobody whose sexual orientation is tied to biological sex will be able to bring a claim for sexual orientation discrimination under the Equality Act because they will not have an orientation covered under s.12, nor could they reasonably be said to be perceived to have a sexual orientation that depends on legal documents, nor would they be associated with such an orientation. If “same-sex” in s.12 is taken to track government documentation, every sexual-orientation discrimination case that has been brought under the Equality Act on the basis of orientation towards biological sex categories has been incorrectly decided.
Will getting a GRC change your sexual orientation?
The second implication of this approach to interpretation is that trans people who obtain a GRC will, as a consequence, usually change sexual orientation. They will have changed sex for the purposes of the Equality Act and therefore who counts as a person of the same sex will also have changed. If one’s sexual orientation remains stable - assuming that it is even covered under this new certificate based understanding - the object of one’s orientation will have remained the same, but one’s position in relation to them (same-sex or opposite-sex) will have changed.
Take the case of a previously heterosexual male, defined in the Act as a man under s.11 and sexually oriented to persons of the opposite sex (women) under s.12(b) (assuming that the introduction of legal certificated doesn’t break the operation of this section). If this person obtains a full GRC and sexual orientation is modified by s.9(1) of the GRA, that person will then be classed as a woman under s.11 and consequently move to being sexually oriented to persons of the same sex under s.12(a).
In a letter from 03 April of this year, following a request from the Minister for Women and Equalities, the Equality and Human Rights Commission set out some of the benefits of clarifying the definition of sex in the Equality Act. As a part of that letter, the Commission addressed this precise issue, noting that:
If sex means legal sex, then sexual orientation changes on acquiring a GRC: some trans women with a GRC become legally lesbian, and some trans men with a GRC become gay men. As things stand, a lesbian support group (for instance) may have to admit a trans woman with a GRC attracted to women without a GRC or to trans women who had obtained a GRC. On the biological definition it could restrict membership to biological women.
The Court of Session’s View
In the Inner House of the Court of Session, Lady Dorrian addressed the problem identified by the EHRC as follows:
We confess that we have not found it easy to follow this particular submission. It is not a necessary inference from Section 9 of the GRA that a person's sexual orientation changes on acquiring a GRC. There is no such thing as being "legally lesbian" and we have not identified a problem which would require that sex be referable to biology alone.
This is all the court said on the matter. There are several things to unpack here. First, while it is understandable that it would not be easy to follow the full implications of changing an individuals sex in the Equality Act, it does appear as though part of the difficult here stems from an unwillingness to devote sufficient attention to the problem.
Secondly, the Court of Session can only explain why changing one’s legal sex will not change one’s sexual orientation under the Equality Act if a change in legal sex does not correlate to the sex category that is relevant for determining if someone is oriented to person’s of the same or opposite sex for the purposes of s.12. The only way that obtaining a GRC would not change an individaul’s sexual orientation for the purposes of s.12 of the Equality Act is if the Gender Recognition Act does not apply to s.12.
That may be true. There are two ways to explain how the Gender Recognition Act might not apply to s.12:
The GRA does not apply to the Equality Act at all.
The GRA does apply to the Equality Act but not consistently.
Ultimately the Court of Session opted for the second option. At first instance, Lady Haldane, approached the interpretation of the meaning of sex in the Equality Act following the judgment of Lord Hope in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61, at [14]:
The best way of ensuring that a coherent, stable and workable outcome is achieved is to adopt an approach to the meaning of a statute that is constant and predictable. That will be achieved if the legislation is construed according to the ordinary meaning of the words used.
This would imply an approach to interpretation that involves examination of the statute as a whole. The Inner House on appeal, however, adopted the counter-intuitive position that the definitions of woman and man, provided in s.212 of the Equality Act mean different things at different points in the Act. After establishing the guiding principle that the interpretation of statute should be consistent and predictable to ensure that its provisions are coherent, stable, and workable, the Inner House then concludes that that individual references to the terms “sex” and “woman” need not be interpreted consistently across the Act.
Ordinarily, the point and purpose of interpretation sections in legislation is to fix the meaning of contested or unclear terms throughout a piece of legislation. Indeed, even without definition sections, this is the default presumption when interpreting statute. As the UK Supreme Court notes in R v Secretary of State for Health, ex p Quintavalle [2003] UKHL 13 at [8]; “the controversial provisions should be read in the context of the statute as a whole.”
Furthermore, s.212 begins with “In this Act” and then proceeds to state that “’woman’ means a female of any age”. This is an exhaustive definition. It would be counter-intuitive to say the least to conclude from this provision that there are multiple definitions of “woman” throughout the Act rather than one consistent meaning. Where the interpretation of an interpretation section is contested, the ordinary presumption is one of internal consistency: words and provisions are taken to have the same meaning throughout the Act such that courts will strive to find an interpretation that is applicable to the Act as a whole without any individual provision being rendered absurd. Here however, the Court of Session rejected that rationale, arguing that
it is neither practical nor necessary for the court to attempt to examine every section and every schedule of an Act of Parliament, which stretches to some 336 pages, in order to determine whether in some different and hypothetical set of circumstances it may be necessary to adopt a contextual interpretation of terms such as ‘sex’ or ‘gender’ based on biology.
There is a presumption of consistency of language throughout the Act. As the Supreme Court noted in Assange v Swedish Prosecution Authorities [2012 UKSC 22 at [75]:
When considering the meaning of a word or phrase that is used more than once in the same instrument one starts with a presumption that it bears the same meaning wherever it appears. That is not, however, an irrebuttable presumption. It depends upon the nature of the word or phrase in question and the contexts in which it appears in the instrument.
While this presumption can be rebutted, it must be argued for as a matter of proper construction, not stipulated because the task of reading the statue as a whole is impractical.
The Inner House concluded ultimately that sex in the Equality Act is modified by a GRC unless there are strong reasons to conclude that it has not been. It could have also concluded that sexual orientation is an area where it is clear that the only workable meaning for same-sex orientation is one based on biological sex rather than certificates. It did not do this. Instead it simply noted that it does not necessarily follow from the fact that someone has obtained a GRC that their sexual orientation has changed, concluding that there is no such thing as a “legal lesbian”.
It may be right that there is no area of law where the term lesbian takes on a special technical meaning that departs from the ordinary usage of the term. But the direct implication of the conclusion that an individuals sex has changed for the purposes of the Equality Act, assuming that the object of their sexual attraction has not changed, is that a person previously covered under s.12(b) by virtue of being oriented towards members of the opposite sex has, by virtue of their own change of sex, now been moved into the category covered by s.12(a) by virtue of being oriented towards members of the same sex.
This takes a bit of time to explain but it is not that difficult to grasp at either a conceptual or a legal level. It might be absurd, but it is not something an experienced judge should be incapable of getting their head around.
“Sex” vs “The Protected Characteristic of Sex”
One potential way to square this circle is to focus on the conceptual distinction between a provision in the Equality Act using the word “sex” and a provision making references to “the protected characteristic of sex”. For this point, I am extremely grateful to Scott Wortley, lecturer in law at the University of Edinburgh, former senior legal assistant to the Scottish Law Commission and expert in statutory interpretation.
While the default presumption is that words take on the same meaning throughout a statute, this presumption can be rebutted where the statute consolidates previous pieces of legislation or where the word is used in certain provisions as part of a broader category or concept that relies on a specialised or artificial meaning of the word. Both of these apply to the Equality Act 2010.
What this means is that any reference to “the protected characteristic of sex” must be taken to carry the same meaning throughout the Act. This is so because there is a statutory definition of the protected characteristic in s.11:
In relation to the protected characteristic of sex—
(a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman;
(b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.
Before going any further to flesh out what this means in general, it is worth noting that s.11(b) makes explicit reference to to the term “same sex”, potentially tying references to “same sex” to the protected characteristic of sex. For now, however, let’s just run the thought experiment to see whether it might be possible to uncouple references to “sex” from references to “the protected characteristic of sex”.
We have a statutory definition of the protected characteristic of sex: it means whether one is a man or a woman. This is notably different from the protected characteristic of race which operates expressly as an open category:
Race includes—
(a) colour;
(b) nationality;
(c) ethnic or national origins.
While race is expressly defined as including colour, nationality, and ethnic or national origins, sex and sexual orientation are both defined exhaustively. Sex is defined by reference to whether an individual is a man or a woman. Sexual orientation is defined as meaning a persons orientation towards persons of the same sex, persons of the opposite sex or persons of either the same or the opposite sex. So the definitions we are working with here are limited, exhaustive and, it is strongly presumed, consistent in their meaning across the act.
The protected characteristic of sex refers to whether someone is a man or a woman. In s.212 of the Act, a man is defined as meaning a male of any age, and woman is defined as meaning a female of any age. This is a modification of the statutory text of the previous Sex Discrimination Act 1975, which defined man as including a male of any age and woman as including a female of any age. That change is also presumed to have been intentional and to have effected some legal change (subject to any inferences drawn from the fact that the Equality Act is a consolidation statute).
The application of the Gender Recognition Act to the Equality Act hinges on what the words ‘female’ and ‘male’ are taken to mean in s.212. If they are subject to s.9(1) of the GRA, then a trans woman with a GRC is a female and consequently female s.212 is a reference to those biological females who don’t have GRCs and those biological males who do, and vice-versa for male. Section 9(1) of the GRA states:
Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquitted gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).
If the references to “man” and “woman” in s.212 are taken to be subject to this deeming provision, then any reference to a woman or a female is a reference either to biology or GRC status, where GRC status will override biology.
However, s.9 of the GRA is not exhausted by the above provision. s.9(3) significantly limits the application of s.9(1) which is already limited by general rules of interpretation of deeming provisions. It states that:
Subsection (1) is subject to provision made by this Act or any other enactment tor any subordinate legislation.
If these definitions of man and woman in s.212 are taken to have independent meaning that constitutes ‘provision made’ for the purposes of s.9(3) of the GRA, they will dissaply the deeming provision in s.9(1) and their interpretation will revert back to the ordinary rules of statutory construction, meaning that male and female will take on a biological meaning, as per the common law.
In my view, whatever one might say about references to the word “sex” in the Equality Act, there is no defensible argument that the protected characteristic of sex can have different meanings for the purposes of different provisions in the Act. Indeed, give that there are statutory definitions for “man” and “woman” in addition to the protected characteristic of sex, it seems pretty clear to me that Parliament can only have intended to fix the meaning of each of these throughout the Act.
Strictly speaking, there is no definition provided for the word “sex” in the Act. One might presume that, following Imperial Tobacco, the best way to provide a coherent, stable, and workable outcome is to presume that references to sex in the Act are references to the protected characteristic of sex and to fix an identical meaning to both. But this is not an easy piece of legislation to interpret. It may be open to the Supreme Court to disambiguate the word sex from the protected characteristic of sex and allow the word sex to be more flexibly interpreted where it arises. I do not think it is possible to do the same for the protected characteristic of sex.
What does this all mean for ‘legal lesbians’? Potentially, it provides an escape valve to preserve the stable, coherent, and workable category of same-sex oriented females as tied to biology, even if the Supreme Court decides that the protected characteristic of sex must be modified by the Gender Recognition Act. That does not resolve issues relating to associations for lesbians and gay men, discussed in my previous post, nor will is resolve many of the other issues that arise on that interpretation, but it might ensure that, at the very least, lesbians and gay men will retain their protection under the Equality Act and that over a decade of caselaw on sexual orientation discrimination need not be thrown out.
Small victories, right?
[If you’re interested in reading a more detailed piece that addressed some of these issues for an audience of lawyers, please check out my forthcoming paper “On Defining Sex in Law, Law Quarterly Review (2025), available here.]