For Women Scotland on 'what is a woman?'

The ball is now in the Supreme Court

Last week the Supreme Court of the United Kingdom heard oral submissions in the case of For Women Scotland v The Scottish Ministers. The central question to be decided was what is a ‘woman’ for the purposes of the Equality Act 2010.

I was fortunate to attend for both days and hope to provide some analysis of how I think things went here. I’ll break these posts down to address each set of submissions from each party or intervenor. In this post, we will discuss the submissions of Aidan O’Neill KC, counsel for For Women Scotland.

I have also replicated the interactions between counsel and the bench, where they have occurred on matters of substance.

At the heart of this case is the interaction between the Gender Recognition Act 2004 (GRA) and the Equality Act 2010 (EqA). The GRA sets out a procedure whereby an individual can change legal sex for some but not all purposes. The EqA has a definition of sex that it relies on to establish a framework of anti-discrimaintion rights, including provision for single-sex services and associations. The central question to be decided here is whether ‘sex’ and by extenuation ‘woman’ in the EqA takes on their ordinary meaning tied to biology or an artificial legal meaning tied to certificates. For Women Scotland are arguing that sex means biological sex; the Scottish Ministers are arguing that it means certificated sex.

When it comes to this question, there were two ways of approaching it. You can either say, this is a really complicated case involving very complicated interactions between two pretty obscurely worded pieces of legislation. Or, this is really simple, let's just cut through all of that and come to a clear answer: we all know what the answer is here.

It seemed to me that at the start of this case, Aidan O'Neill KC started with the second approach. I think there was some pushback to this from the bench:

Aidan O’Neill: One gets so lost in trying to explain the intricacies and complexities of this matter.

Lord Reed: Well, we really would welcome your and other counsel’s assistance in understanding those complexities. For example, the contrast between the lesbian students club in this paragraph [of the EHRC’s submissions] and the single sex services in the paragraphs that come after it.

Aidan O’Neill: Yes and I’m going to deal with all of this.

Lord Reed: We need to get into the detail -

Aidan O’Neill: - We are going to get into the detail, yes.

This was, in my view, the Court attempting to move the submissions onto fine-grained details and away from the background social context that informed the first hour or so of O’Neill’s submissions.

In any analysis of these submissions, I think it’s important to be cognisant of the fact that making submissions before the Supreme Court is no easy task. There are different ways of approaching advocacy that suit different lawyers differently. In a case as complex as this, it is entirely understandable that Aidan O’Neill KC would choose to focus on working through his prepared submissions in the order in which they were written. There was clearly a structure to them by design.

However, I think it’s fair to say that the bench - or at least Lord Reed, the President of the Court - became impatient at a certain point.

Aidan O’Neill: The [Equality and Human Rights] Commission has advised that service providers should not ask to see a certificate when presented with a potential customer who is transgender in its single-sex guidance.

Lord Reed: Can I ask you, you haven’t discussed it so far, I’m wondering what you make in paragraph 39 of the EHRCs submissions, in relation to the point made in sub-paragraph 3 in particular: … if a trans woman with a certificate is refused access to services on the grounds that they are intended only for women, then on the assumption that the trans woman is treated as a woman for the purposes of the Equality Act, they have not suffered sex discrimination any more than would be the case if you refused to provide a service to a woman over 50 for example.

Aidan O’Neill: Yes, I am going to come onto that. Its just yet another one of the conundrums and it is difficult frankly to try and work out what these provisions mean and how they are supposed to operate if you change the plain meaning of the words as [the Scottish Government is] doing and one gets lost in this wormhole …

Lord Reed: Well, I know it’s difficult but -

Aidan O’Neill: - but it needn’t be difficult! That’s my point! It’s really dead easy, frankly -

Lord Reed: - yes. I’m just contemplating the possibility that we might not be with you and in that event, is there anything you can salvage essentially in the light of, for example, the point being made that I’ve just raised with you?

Aidan O’Neill: Yes because it’s to do with - and I am going to come on to it, but I do have a structure to these submissions which, because it’s so complicated, I am trying to stick with, given the limited time.

Lord Reed: That’s fine.

Aidan O’Neill: But it’s to do with whether someone can relay on paragraph 28 and gender reassignment. But it’s not easy.

At this point in the day, Aidan O’Neill was then able to get into the details of the precise interaction between the GRA and the EqA. An analysis of For Women Scotland’s written submissions can be found here. The central thrust of their argument is that if the GRA did change the meaning of sex in the Equality Act, it would produce absurd and unworkable results. There is a strong presumption against absurdity in statutory interpretation and there are strong textual hooks in both the GRA and the EqA that provide a way for the law to disapply the GRA from the EqA.

In what follows, I’ll take a closer look at some of the more fine grained points advanced by Aidan O’Neill KC to support this general proposition, drawn out by the questions that came from the bench.