For Women Scotland and Lesbian Associations

This is the first post in what will be a series looking at the different aspects of For Women Scotland v The Scottish Ministers due to be heard by the UK Supreme Court next month. I will be discussing various aspects of the case, including what is at stake practically and what the legal issues are that have to be decided.

Today the topic is single-sex associations. In November of last year, 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. The appeal from that decision is what will be heard by the Supreme Court next month.

The key development that came from the judgment of the Inner House was 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. At [56] the Court concluded that

Those without a GRC remain of the sex assigned to them at birth and therefore would have no prima facie right to access services provided for members of the opposite sex.

This conclusion is not contested and is not likely to be overturned on appeal. The issue before the UK Supreme Court is what the law has to say about those who have GRCs. The Inner House concluded that if one has a GRC the legal position changes. If that judgment is correct, 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. 

Crucially, however, these exceptions do not apply to associations, defined in s.107(2) of the Act as associations of persons where there are more than 25 members and where admission is regulated and involves a process of selection. Ordinarily associations are subject to obligations set out in s.101 not to discriminate on the basis of protected characteristic. There is however an exception that permits single-characteristic associations such as a Christian reading group or an informal support network for those undergoing medical transition or for detransitioners. Schedule 16, para 1 of the Equality Act states:

(1) An association does not contravene section 101(1) by restricting membership to persons who share a protected characteristic.

(2) An association that restricts membership to persons who share a protected characteristic does not breach section 101(3) by restricting the access by associates to a benefit, facility or service to such persons as share the characteristic.

There are, however, no exceptions to gender reassignment discrimination in the establishment and maintenance of single-sex associations. Schedule 16 only permits discrimination on the basis of the characteristics that the association is set up to cater to, this means that a trans-only cycling group could exclude those who are not covered by the gender reassignment characteristic, but a female only walking group could not exclude someone on the basis of the fact that they are covered by gender reassignment.

If the Inner House is incorrect and the protected characteristic of sex in the Equality Act means biological sex, this would mean that a female-only group could not exclude any biological female from their association on the basis of the fact that they were black or lesbian or a detransitioner or were taking testosterone or who believed in gender identity theory. They could exclude biological males.

But if the Inner House decision is upheld on appeal, this would mean that any female-only group would not be able to lawfully run as female-only. For example, if there were a lesbian walking group, it couldn’t operate on a definition of lesbian which is understood to mean biological females who are sexually oriented to biological females. By law, only lesbian associations that excluded trans women without GRCs but included trans women with GRCs would be able to avail of the single-characteristic exception, because that exception is tied to how the Equality Act defines sex.

We know that female in the Act cannot operate on the basis of Self-ID. So the only options are female-only associations either where female means biologically female or where it means biologically female except where a GRC is involved. That is not practical or workable in most contexts, but could feasibly work in the context of membership associations where the association will need to requisition information about GRC status as part of the application process. That would then engage s.22 of the Gender Recognition Act and make it a crime to disclose that information in certain contexts.

If this decision is upheld on appeal, it will mean that trans women can be lawfully excluded from these associations if they do not possess a GRC. This is because they are legally classed as men and their exclusion would be sex discrimination, which is permitted when the single characteristic association is one defined based on sex. So regardless of how this case is decided in the Supreme Court, the Equality Act treats those trans women without GRCs as men and therefore permits their exclusion from female-only associations. The question we don’t have answers to at the moment is what the legal position of those who do have GRCs is.

If the Inner House decision is upheld on appeal and sex in the Equality act is taken to mean biological sex unless modified by a GRC, it will mean that those trans women who do possess a GRC could not be lawfully excluded because exclusion for them would not count as sex discrimination. They would be classed as women for the purposes of the Act and so exclusion could not be sex discrimination. Rather it would be gender reassignment discrimination.

Gender reassignment is a characteristic with asymmetric protection in the Act. Unlike sexual orientation which protects gay people, bisexual people and straight people, gender reassignment only protects those classed as transsexuals in the Act; those who are proposing to undergo, are undergoing, or who have undergone a process or part of a process the purpose of which is to reassign sex, by changing physiological or other attributes of sex. This will cover most people who identify as trans as well as practically all detransitioners. This means that a single-characteristic association relating to gender reassignment can only operate on a ‘transsexual’-only basis, as defined in the act.

Because gender reassignment does not offer symmetric protection, it is not possible to establish a single-characteristic association defined around not being a transsexual. There is no scope to have a ‘non-transsexual’-only association because that is not a characteristic for the purpose of the single-characteristic exception. The result is that, if the Inner House decision is upheld on appeal, there will be no scope within Schedule 16 to permit gender reassignment discrimination in order to maintain single-sex associations, the way there is in Schedule 3 in relation to single-sex services.

This 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 on the basis of their having been born male. 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.