Sex Matters in the Supreme Court

On 26 and 27 November 2024, the UK Supreme Court heard oral submission in 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 Ben Cooper KC, on behalf of the human rights charity Sex Matters.

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.

The intervention from Sex Matters is focused heavily on principles of statutory interpretation: they are trying to set out a path for the Court to follow that relies on encouraging it to approach this issue like it would any other piece of legislation. In essence, the argument here is that this case might involve complicated work, due to the drafting of both statutes, but not novel work. This is always an enticing prospect for a court: it is rarely the case that the judiciary relishes doing something radical with the law - that is normally left for Parliament. Even when something radical is done, it is usually presented as if it is not. The common law has historically been described as innovation disguised as tradition.

In my view, what Sex Matter is suggesting to the court is entirely orthodox as a matter of statutory interpretation. What makes this case controversial is the subject matter of the background political conflict. As a matter of law, the Supreme Court is being called on to simply apply ordinary principles of construction to this case.

Here we can see a rhetorical disconnect between the arguments of For Women Scotland and Sex Matters, although a disconnect that I suspect will serve to bolster both submissions. Aidan O’Neill began with an impassioned exegesis of all the ways that the common law has historically failed women. That context is important, but it came with an undertone of warning to the court that it should be wary of becoming an institution of “patriarchy in action” as O’Neill put it. In contrast, Ben Cooper chose to approach this issue by taking that background political context out of the picture to start with and instead to encourage the Court to see this as just business as usual.

One can never know which of these approaches is the better until we see the response of the court on the day. In my view, the Court was more receptive to Cooper’s approach: it gave them something to build a foundation from in this case. He presented them with the questions they should be focusing on and the tests they should be applying front and centre. Judging from the atmosphere in the room on the day, my sense was this was appreciated by the bench. If they can find a way to resolve this issue without collapsing into accusations of being a culture war court, I suspect they will.

I should be clear, however, that I think there was value in the approach taken by Aidan O’Neill KC. In particular, his closing submission, which I will discuss in detail in a future post, was a feat of magnificent rhetoric. I think it will have placed the political background of what is at stake in this case firmly in the mind of the court. I should also say, in case it was not obvious from my previous post discussing his submissions, that Aidan O’Neill’s arguments contained extensive engagement with the legal material and questions of statutory construction. The difference between For Women Scotland and Sex Matters here was one of emphasis, not omission.

The relationship between s9(1) and s9(3) GRA

Ben Cooper: The core question of statutory interpretation in this case can be expressed in this way: do the provisions of the Equality Act displace the presumption under s9(1) of the Gender Recognition Act? That requires consideration of the purposes of both statutes, in particular to what extent the purposes of the Gender Recognition Act are engaged and affected, as well as the impact on the purposes and coherence of the Equality Act. The first part of that analysis has not always been to the fore in the analyses presented in this case. It’s necessary to ask and important to ask what would a s9(1) reading of ‘sex’ and ‘man’ and ‘woman’ in the Equality Act actually achieve for the relevant rights and protections of transgender people to which s9(1) GRA is directed.

…

S9(1) creates a presumption that the sex of a person with a GRC is to be treated as corresponding in law with their acquired gender. The question … is what is the test or threshold for a subsequent statute to disapply that presumption.

Lord Reed: When you say it’s a presumption, are you meaning reading it together with subsection 3?

Ben Cooper: Reading it together with subsection 3, it’s a rebuttable presumption. The differences between the various parties and interveners may be more matters of emphasis than anything else. I would draw your attention in particular to paragraph 80 … of the Scottish Ministers case, where the proposition is put ... in this way: “where giving effect to the purpose of any given legislation requires an alternative interpretation to the s9(1) presumption, given effect by s9(2), that is expressly permitted by the terms of s9(3)”. So, the word ‘requires’ perhaps begs the question, but this may be a matter of emphasis more than anything else, but it may be an important one.

This was a very important interaction, in my view. It may appear to be quite dry, but it sets the terms of the statutory test and indicates where Lord Reed’s mind was at in considering the interaction between s9(1) and s9(3) of the GRA.

In the previous submissions, Aidan O’Neill stressed that there are two tests here, rather than the unified approach that Ben Cooper has suggested. On O’Neill’s submissions, s9(1) is a narrowly construed provision that, even in the absence of s9(3), would be limited in its application to have effect only so far as is necessary to achieve the purposes of the GRA. There is then the additional limitation placed by s9(3) which will disapply s9(1), even where within the purposes of the GRA, if it would be incompatible with the purposes of another piece of legislation or subordinate legislation.

In the interaction between O’Neill and Lord Hodge in the earlier session, Lord Hodge noted that even if O’Neill was incorrect on the limited nature of s9(1) on its own, his argument does not fall because he can also rely on s9(3). In contrast, in oral submissions, although not in the written case, Ben Cooper argued that s9(1) and s9(3) should be read together in any given case, with the court having in mind both the purposes of the GRA and of the Equality Act simultaneously.

While I agree that this is mostly a matter of emphasis, I favour O’Neill’s approach as a matter of statutory interpretation. You need not consider the additional element of s9(3) if s9(1) is not engaged. The Scottish Government and the EHRC have argued that s9(1) is engaged in the interpretation of all statutes unless, by necessary implication, it has been displaced by s9(3). This is a very stringent test that would set the bar for the misapplication of the s9(1) presumption at the same level as the presumption against criminal imprisonment without trial for example.

Sex Matters in oral submissions have argued that s9(1) creates a rebuttable presumption that can be disapplied by virtue of s9(3) on an ordinary construction, having in mind the purposes of both statutes, read together. In one sense, Cooper is correct that this is really a difference in emphasis, but in another, it is an important difference that provides insight into the strength of the presumption created by s9(1). Sex Matters have, correctly in my view, argued that even if the Court adopts the higher standard of necessary implication favoured by the Scottish government, that test will have been met in this case anyway, given the degree of absurd and anomalous results that would frustrate the purpose of the Equality Act.

Why s9(3) is engaged

Cooper presents four points in support of Sex Matter’s argument that the presumption in s9(1) GRA has been disapplied in the Equality Act: