For Women Scotland: Is Legal Recognition of Biological Sex a Violation of Human Rights?

In For Women Scotland v The Scottish Ministers the UK Supreme Court rejected the contention that possession of a Gender Recognition Certificate changes an individual’s sex for the purposes of the Equality Act 2010, maintaining equality of status for all those protected under the characteristic of gender reassignment and ensuring that biological women are protected as a distinct group. In the aftermath of this judgment, there has been a heated public debate, in particular on the impact that this has on the operation of single-sex facilities, with some arguing that failure to operate facilities on the basis of GRC status amounts to a human rights violation. For the reasons discussed below, this claim is not sustainable.

This post is a response to Crash Wigley’s post, which argues (among other things) that the Supreme Court has failed to consider the human rights implications of this judgment for transgender people and that the decision is likely to lead to violations of the Article 8 ECHR rights of transgender people in the UK. Wigley, while criticising the Court for omitting analysis of the human rights implications of this judgment for transgender people, has equally omitted any analysis of the human rights grounded in sex and sexual orientation.

Moreover, the Supreme Court did address the human rights aspects of this case (in paras 63-68, 73, 157) as will be discussed below. Ultimately, however, this was not a case about human rights law. Neither party sought a s.3 HRA interpretation of the Equality Act and neither party sought a s.4 declaration of incompatibility. This being the case, one can hardly blame the Supreme Court for not ruling on a claim which was not advanced before it and which was not one of the issues to be determined. Having rejected the contention that a biological sex interpretation of the Equality Act would be a breach of Goodwin, there was no need to consider the s.3 interpretation Wigley proposes. Indeed, given the fact that the question before the Court concerned the point and purpose of the Equality Act 2010, a s.3 interpretation which departed from this would fail the test in Ghaidan v Godin-Mendoza by adopting “a meaning inconsistent with a fundamental feature of the legislation” (para 33).

The Decision

In summary, the Supreme Court concluded that the Gender Recognition Act 2004 will not apply to other legislation where the “terms, context and purpose” of the enactment show that a biological meaning of sex is intended, “because of a clear incompatibility” between the other enactment and a “certificated sex” reading of sex, or because the provisions of the other enactment “are rendered incoherent or unworkable” by a “certificated sex” reading of sex. It then concluded that this test was met in relation to the Equality Act. I have written a more detailed summary elsewhere.

The Supreme Court, in recognising the importance of both biological sex and gender reassignment, concluded that each is protected separately under the Equality Act. This has some important implications. Firstly, this means that biological men and women are recognised as distinct groups. Biological sex is a distinct vector for discrimination, and women in particular face barriers to inclusion grounded in their biological sex, including discrimination arising from pregnancy, the potential for pregnancy and other forms of sex-based discrimination and harassment.

Any argument that this judgment is incompatible with Convention rights must contend with the implication that has for the law’s ability to recognise biological sex as a distinct category at all. As the Supreme Court noted (at para 172) a certificated sex interpretation of the Equality Act would “cut across the protected characteristic of sex in an incoherent way” because, such an interpretation would entail the following:

“References to a “woman” and “women” as a group sharing the protected characteristic of sex would include all females of any age (irrespective of any other protected characteristic) and those trans women (biological men) who have the protected characteristic of gender reassignment and a GRC (and who are therefore female as a matter of law). The same references would necessarily exclude men of any age, but they would also exclude some (biological) women living in the male gender with a GRC (trans men who are legally male)”

The Supreme Court therefore concluded:

“We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group”

This is an important point: if sex took on a certificated meaning, then biological women (and men) would not be recognised as distinct groups for the purposes of Equality Act, including purposes relating to positive action and exact correspondence/indissociable direct discrimination which arise where a facially neutral rule or policy disadvantages only those who share a protected characteristic.

If it would be a violation of Article 8 to recognise biological sex when the law regulates sexual harassment, sex discrimination or the provision of single-sex services, including changing facilities and rape crisis centres, then it is difficult to imagine any area where the law could recognise biological sex and be compatible with the ECHR. That is a bold claim.

Secondly, the Court was clear that recognition of biological sex as a distinct protected characteristic does not undermine the protections for transgender people, who are fully protected from discrimination and harassment on the basis of the characteristic of gender reassignment. The Court also reaffirmed that transgender people could claim for sex discrimination where they are discriminated against because of their biological sex, their perceived sex or because of the sex that they are associated with. So, a GRC is simply not necessary to achieve any relevant equality purpose as far as the Equality Act is concerned (para 253):

“It follows that a certificated sex reading of sex in the EA 2010 is not necessary to achieve the purposes of either the GRA 2004 or the EA 2010 as regards protection from direct discrimination. A man who identifies as a woman who is treated less favourably because of the protected characteristic of gender reassignment, will be able to claim on that basis. A man who identifies as a woman who is treated less favourably not because of being trans (the protected characteristic of gender reassignment), but because of being perceived as being a woman, will be able to claim for direct sex discrimination on that basis. This does not entail any practical disadvantage”

Article 8 ECHR

Wigley criticises the Supreme Court for not appearing to address the arguments of Amnesty International UK “in form or in substance anywhere in the judgment”. The arguments which Wigley criticises the Supreme Court for not considering were:

1. The positive obligation under Article 8, recognised in Goodwin v United Kingdom, to gender recognition.

2. The ECtHR has held that “gender identification” falls within the sphere protected by Article 8 and is tied to respect for dignity, human freedom, and protection of transgender people’s rights to personal development and physical and moral security.

3. The ECtHR has subsequently removed the requirement to undergo medical intervention prior to legal gender recognition.

4. The ECtHR has continued to emphasise the importance of the coherence of administrative and legal practices in the domestic system as an important factor in the Article 8 assessment.

From this Wigley argues that the Supreme Court “was presented with strong argument grounded in the case law of the ECtHR that a trans-exclusionary interpretation of sex would breach the Article 8 rights of trans people. In those circumstances, it should have considered whether a section 3(1) reading was necessary to avoid breaching the human rights of trans people. It did not do so.”

The central problem with this critique is that the Supreme Court does address these arguments and it does so in detail.

At para 65 the Court notes that in Goodwin, the ECtHR concluded (at para 90) that “the unsatisfactory situation in which post-operative transsexuals live in an intermediate zone as not quite one gender or the other is no longer sustainable”. At para 63 the Court notes that the GRA was enacted as a response to Goodwin and the declaration of incompatibility made by the House of Lords in Bellinger v Bellinger, a case involving the validity of a marriage between a man and a trans woman at a time when same-sex marriage was not lawful. At para 66 the Supreme Court noted that the House of Lords in Bellinger held that it was not possible under our constitutional settlement to interpret “male” and “female” in s.11(c) Matrimonial Causes Act 1973 to refer to anything other than biological sex. Lord Nicholls noted at (para 37) that such an interpretation “would represent a major change in the law, having far reaching ramifications. It raises issues whose solution calls for extensive enquiry and the widest public consultation and discussion … the issues are altogether ill-suited for determination by courts and court procedures. They are pre-eminently a matter for Parliament”. It was therefore not possible to rely on s.3 of the Human Rights Act to “read down” the 1973 Act and so the House of Lords issued a declaration of incompatibility.

To remedy this breach, the Gender Recognition Act 2004 (GRA) was enacted. At para 68 the Supreme Court notes that in Grant v United Kingdom, the ECtHR concluded (at paras 41-43) that the violation of Article 8 identified in Goodwin was remedied when the GRA came into force. The GRA contains clear provisions limiting the effect of a GRC, both expressly in areas such as parenthood, succession, sport, and sex-specific criminal offences, and as part of the general exception in s.9(3) which limits the scope of a GRC where a contrary provision exists in any enactment or any subordinate legislation. It is therefore clear that the scope of the change in legal status provided in the GRA, and determined to be ECHR compliant in Grant, is not absolute.

At para 73 the Supreme Court expressly notes that “the GRA 2004 went further than the decision in Goodwin may strictly have required at that point to ensure compliance with article 8”. Indeed, they noted that the GRA anticipated the decision in Garçon and Nicot v France by declining to impose any requirements of medical treatment as conditions for gender recognition.

Taking all of the above together, it is simply inaccurate to claim, as Wigley does, that the Supreme Court did not consider Amnesty’s submissions “in form or in substance anywhere in the judgment”.

The central point of tension is not that the Supreme Court declined to consider Amnesty’s submissions; it’s that the judgment does not presume, as I suspect Wigley does, that the right to legal gender recognition can only be fully respected if a GRC changes one’s sex for all legal purposes with no (or very limited) exceptions. At the very least, Wigley is of the view that the Article 8 right to legal gender recognition demands a change in legal status for the purposes of discrimination law. The central difficulty, of course, is that none of the Article 8 case law on gender recognition supports this view and, in fact, the case law clearly delineates a wide margin of appreciation for member states in how gender recognition is domestically regulated.

The Article 8 right to respect for ‘private and family life’ is a qualified right: it can be lawfully interfered with where proportionate and in pursuit of any of the legitimate aims identified within Article 8(2), including the protection of the rights of others. Women (and men) have recognised sex-based rights in our law and anti-discrimination legislation is one of the primary means by which Parliament has chosen to protect those rights.

In any assessment of whether the right to legal gender recognition has been violated, a balancing exercise must be undertaken. In Van Kuck v Germany, the ECtHR concluded (at para 84) that a fair balance had not been struck between the interests of a private health insurance company in not paying for medical transition and the interests of the transgender applicant. As a result, the German authorities had “overstepped the margin of appreciation afforded to them under paragraph 2 of Article 8” resulting in a violation of the applicant’s Article 8 rights (para 85). Determination of the means by which gender recognition is achieved and any limitations on the scope and effect of legal gender recognition fall within the margin of appreciation, subject to the standard proportionality tests.

Should it be established that the legal effect of gender recognition in a particular area of law would amount to substantial hardship or detriment to the public interest, a balancing exercise would need to be undertaken. In Goodwin the ECtHR was focused on changes to birth certificates and marriage certificates, concluding (at para 93) that, in those areas, “the respondent Government can no longer claim that the matter falls within their margin of appreciation, save as regards the appropriate means of achieving recognition of the right protected under the Convention.”

In enacting the GRA, Parliament was operating squarely within the margin of appreciation, by determining the means of achieving recognition. Nowhere has it been suggested that Article 8 requires a member state to make provision for a complete change in legal sex for all legal purposes with no exceptions. The ECtHR only concluded as it did in relation to marriage, pensions, and birth certificates because there was no concrete evidence that substantial hardship or detriment to the public interest was likely to flow and because there was scope within areas such as family law for member states to carve out their own approach within the margin of appreciation. It heard no argument about the effect of a change of legal sex in the context of single-sex spaces or women’s Article 8 rights, because Goodwin did not claim an entitlement under Article 8 to use such spaces.

Indeed, the ECtHR noted in Parry v The United Kingdom that the margin of appreciation may be wider in the context of gender recognition than in other areas:

“In this context [legal recognition to gender re-assignment] the notion of ‘respect’ as understood in Article 8 is not clear cut, especially as far as the positive obligations inherent in that concept are concerned: having regard to the diversity of practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case and the margin of appreciation to be accorded to the authorities may be wider than that applied in other areas under the Convention”

In Parry, the margin of appreciation was so wide that the application seeking to challenge the requirement under the GRA that marriages be annulled prior to granting of a GRC was manifestly ill-founded. Similarly, the ECtHR found no violation of Article 8 arising from a requirement that a wife consent to converting a marriage into a civil partnership prior to achieving gender recognition (Hämäläinen v Finland). This fell squarely within the margin of appreciation. Given this, the contention that the interaction between the GRA and the Equality Act is outwith the UK’s margin of appreciation is not plausible.

Other cases before the ECtHR relating to gender recognition have dealt with civil status on state documentation (B v France; L v Lithuania; Y.T. v Bulgaria; Rana v Hungary; Y v Poland), pension entitlements (Grant v UK), family rights (A.M. and Others v Russia,) unduly rigid eligibility requirements for gender reassignment surgery (Schlumpf v Switzerland; Y.Y. v Turkey), and requirements of medical intervention as a condition of gender recognition (Garçon and Nicot v France; S.V. v Italy; X and Y v Romania; A.D. and Others v Georgia).

Nowhere has it been suggested that maintaining biological sex as a distinct category within anti-discrimination law constitutes a violation of Article 8.

Protection of the Rights of Others

The unifying feature of areas where the ECtHR has found a violation of Article 8 for failure to recognise a change in legal sex is that they do not directly affect the rights of others. Where the rights of others are engaged, as for example, when there is a marriage involved, the margin of appreciation is wide. Two areas where the human rights of others will most obviously be engaged are in the provision of single-sex services and in the freedom of women and sexual minorities to associate based on their protected characteristics.

The Supreme Court was cognisant of the fact that a certificated sex interpretation of the Equality Act would undermine the “sex-based rights and protections under the EA 2010” (para 172). It does not in express terms tie these rights to Article 8 ECHR, but it would be futile to suggest that the “considerations of privacy and decency” recognised by the Court (at paras 52 and 224) as requiring separate facilities for males and females in the context of changing, showering, sanitary use and communal accommodation do not engage Article 8 when balancing gender recognition against the rights of others.

Nowhere has the ECtHR concluded or even suggested that Article 8 entails a right to use single-sex facilities intended for members of the opposite sex. It falls to those arguing before the Court to establish that such an entitlement is firstly within the scope of Article 8 and secondly that it outweighs the competing rights of others to single-sex facilities. No such argument was advanced in this case. Wigley could legitimately criticise Amnesty International UK and the Scottish Ministers for failing to advance these more specific proportionality arguments, as opposed to the abstract arguments about dignity and human freedom mentioned above, but I do not think it fair to criticise the Supreme Court for failing to consider issues which have never been addressed by the ECtHR and which were not argued before it.

The Supreme Court did, however, consider the implication of a certificated sex interpretation of the Equality Act on the established rights of sexual minorities, particularly lesbians, who relied on Articles 8, 11 and 14 (para 34). The submissions by the lesbian interveners were heavily grounded in the Convention rights of lesbians, gay men, and bisexual people to be recognised in law as distinct groups, to be protected from unlawful discrimination, and to associate together on the basis of their sexual orientation.

If a certificated sex interpretation were adopted, it would render the protection for sexual orientation in the Equality Act “meaningless” (para 206) because it would define a person with same-sex sexual orientation as someone of one legal sex who is sexually oriented only towards those of the same legal sex. The Court noted (at para 204) that:

“The protected characteristic of sexual orientation … is framed by reference to orientation towards persons of the same sex, the opposite sex, or either sex. Read fairly, references to sex in this provision can only mean biological sex. People are not sexually oriented towards those in possession of a certificate”

A meaning of sexual orientation in the Equality Act which was tied to GRC status would erase lesbians from our equality law protection and would interfere with the human rights of lesbians to associate together free from the presence of biological males. That would be an irrational result. The Supreme Court was clear (at paras 206-208) that lesbians have a right under our law to associate with each other free from the presence of biological males, and gay men have a right to associate with each other free from the presence of biological females. A meaning of sex which can vary depending on GRC status would create a chilling effect on the ability of lesbians and gay men to exercise this right. That was one reason why the Supreme Court concluded that the only fair reading of sex in the EA was one based on biology.

In this case, the Supreme Court concluded that a biological sex interpretation of the Equality Act would not violate the rights of transgender people and a certificated sex interpretation of the Equality Act would violate the rights of others. Far from omitting human rights analysis from its judgment, the Supreme Court has engaged in a detailed consideration of the various competing rights and interests to inform the core determination in this case, which was one of statutory interpretation.

This post was originally published on the UK Constitutional Law Association Blog.