What is a woman? The Scottish Government's case

This post is a part of a series that I am doing on 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 (EqA) 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.

The Scottish Government have today made their submissions publicly available. In this post, I will summarise their arguments and offer some of my own thoughts. The central thrust of the Scottish Government’s submissions is that s9(1) of the Gender Recognition Act (GRA) places a general interpretative obligation to presumptively read references to sex in law as meaning certificated sex, not biological sex. This interpretative presumption applies to the EqA unless provision has been made to the contrary as per s9(3) GRA. It is the Scottish Government’s argument that the definition of “man” and “woman” in s212 EqA does not constitute provision made for the purposes of s9(3) GRA, but is rather subject to the general interpretative presumption in s9(1) GRA.

The Gender Recognition Act 2004

1. The Scottish Government, in agreement with all other parties, argue that the GRA was enacted to give effect to the UK’s obligations arising from Goodwin v United Kingdom (2002) 35 EHRR 18. When a draft Bill was published, the Joint Committee on Human Rights responded, noting that the draft Bill used “the language of gender rather than sex”; that “the Sex Discrimination Act 1975 generally makes it unlawful to discriminate on the ground of sex, not gender”; and recommended that: “To make absolutely sure that the legislation would achieve its intended effect […] it should expressly state that ‘sex’ in the 1975 Act is to be interpreted as including the acquired gender of a person who has obtained a full gender recognition certificate”. While this recommendation was not taken forward and this was not put into the GRA, the Scottish Government note that the wording of s9(1) was changed to include a reference to both sex and gender, arguing that the Court can and should infer from this that, despite declining to state in the Act that a GRC would change someone’s sex for the purposes of the SDA, that was nevertheless the intention of Parliament.

2. One issue with this argument is that it goes beyond what all parties accept to be the primary intention of passing the GRA: to meet the obligations arising from Goodwin. I noted in a previous post that, while Goodwin claimed that suffering gender reassignment discrimination contributed to an Article 8 violation, the ECtHR expressly noted that such discrimination was already unlawful under UK law and made no further comment to indicate that the Convention required a particular approach to sex discrimination. Goodwin was not about sex discrimination, and imputing a purpose onto the GRA which includes this requires more by way of supporting evidence than a decision not to take that exact recommendation forward but a more ambiguous inclusion of the term “sex” in s9(1) GRA.

3. The entire issue to be determined here is the extent to which the term “sex” in s9(1) GRA, read in conjunction with s9(3) GRA, applies to discrimination law. It is simply begging the question to presume from the mere fact that Parliament used the term “sex” that it therefore intended “sex” to apply to discrimination law. There may be strong reasons to infer that s9(1) was intended to apply to discrimination law, but the fact that the provision uses the term “sex” is not one of them. This question only gets off the ground because s9(1) makes reference to sex. The question is precisely whether that reference extended to the Sex Discrimination Act 1975 and then, even if it did, did that reference carry over unmodified into the Equality Act 2010; you cannot answer that by saying “well, Parliament did choose to use the term “sex” as well as “gender” so surely that was intended to apply to the Sex Discrimination Act?”.

4. The far more obvious explanation here is that, at this time, the terms “sex” and “gender” were used interchangeably in UK law. Contemporaneous case law such as A v Chief Constable of West Yorkshire Police [2004] UKHL 21 affirms this view. As the Supreme Court noted in R (Elan-Cane) v Secretary of State for the Home Department [2021] UKSC 56:

   there is no legislation in the United Kingdom which recognises a non-gendered category of individuals. On the contrary, legislation across the statute book assumes that all individuals can be categorised as belonging to one of two sexes or genders (terms which have been used interchangeably).

5. In my view, nothing can be inferred from the use of the term “sex” in s9(1) GRA beyond the generally accepted point that sex and gender are used interchangeably in UK law. Any attempt to do more, either to support the claim that Parliament intended s9(1) GRA to apply to discrimination law, or to support the claim made by For Women Scotland at [89] of their submissions that what Parliament was focusing on here was an “acquired gender” which is somehow distinct from sex must fail. This contention fails on the face of s9(1) GRA which states that where a full gender recognition certificate is issued:

   the person’s gender becomes for all purposes the acquired 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)

6. The fact that a person’s acquired gender has the effect that their sex becomes legally that of a man or a woman in those areas affected by s9(1) GRA cannot be ignored. In addition, too much case law presupposes the interchangeability of the terms “sex” and “gender” to presume that anything stands or falls on the fact that the GRA contains either a reference to “acquired gender” or “sex”. The fact that a GRC changes a person’s legally recognised sex for some but not all purposes is our starting point. All else that follows must explain how and why s9(1) GRA does or does not apply to a particular area of law. That cannot be done by begging the question and smuggling a conclusion into a starting premise.

7. Finally, the Scottish Government rely on several provisions in the GRA to indicate that the effect of obtaining a GRC is to change one’s legal sex. Of most relevance to this case is the argument that s14 GRA made reference to discrimination law by giving effect to Schedule 6 GRA as originally enacted by amending the Sex Discrimination Act 1975. There is a complex chain of provisions here but in effect s2A SDA prohibited discrimination based on gender reassignment (not sex), making it unlawful for a duty bearer (A) to treat a person (B) less favourably than they would treat others on the basis that (B) intends to under go, is undergoing or has undergone gender reassignment. Additionally, s6 SDA makes it unlawful to discriminate in employment on the basis of either sex or gender reassignment. There is then an exception to these general rules of non-discrimination in s7A SDA to permit gender reassignment discrimination: s7A SDA states that in determining whether there has been unlawful gender reassignment discrimination, the prohibitions on discrimination in employment do not apply where being a man or a woman is a genuine occupational qualification.

8. It is important to be clear that s7A SDA is referring to the determination of gender reassignment discrimination falling within s2A read in conjunction with s6 SDA. It made no reference to sex discrimination against women or men falling within sections 1 or 2 SDA. The exception in s7A SDA disapplies rules relating to gender reassignment discrimination where being a man or a woman is a genuine occupational qualification. The GRA then inserts an exception to this exception stating that it does not apply where a person’s gender has become an acquired gender under the GRA. Effectively this provision operates to tell duty bearers that genuine occupational qualifications to be a man or a woman do not apply to those who have acquired the status of man or woman under the GRA.

9. This does not necessarily mean that they have acquired the status of man or woman under the SDA. If that is what the GRA intended to do, it could have amended the definitions of “man” and “woman” in the SDA to make that clear, as was recommended by the Joint Committee on Human Rights. Parliament chose not to do that and instead chose only to disapply an exception to the prohibition on gender reassignment discrimination where being a man or a woman is a genuine occupational qualification.

10. For example, if an employer A treats a person B less favourably than other females because B is a female-to-male transsexual, that will be gender reassignment discrimination contrary to s2A SDA read in conjunction with s6 SDA. For example, if A treats B less favourably than other females because B takes exogenous testosterone, has grown a beard and has a masculinised voice, that would have been unlawful under the SDA. Now, if A treats B less favourably than other females but where being a woman is a genuine occupational qualification for the job in question; say because A operates a rape crisis centre, this would be gender reassignment discrimination but it would be covered under the s7A exceptions. What the GRA did was remove this exception if B has obtained a GRC stating that they are a man.

11. The Scottish Government argue that the GRA therefore brought within the terms “man” and “woman” in the context of genuine occupational qualifications, persons who had respectively been issued with full GRCs in the acquired gender of “male” and “female”. It is not obvious to me that this is what the GRA did. On the face of the provisions, it merely disapplied exceptions to gender reassignment discrimination based on sex-based occupational requirements to those who have obtained GRCs. I have to admit that I am struggling to make sense of this amendment because it doesn't appear to do much work, regardless of whether a GRC changed one’s sex for the purposes of the SDA.

12. Take the example above of the female-to-male transgender person working in a rape crisis centre. If obtaining a GRC made this person a man for the purposes of the SDA, there would be no need to rely on the s7A exception to gender reassignment discrimination because the exclusion of that person would be covered under the s7 exception to sex discrimination, not the s7A exception to gender reassignment discrimination. If B became a man for the purposes of the SDA upon obtaining a GRC, then excluding B from employment in a rape crisis centre would be simple and uncomplicated direct sex discrimination permitted under the exception to sex discrimination in s7 SDA. The s7A exception to gender reassignment discrimination would not be relevant or applicable. Removing this exception for gender reassignment discrimination would be superfluous if the intention was for a GRC to change one’s sex under the SDA because then the relevant discrimination in relation to genuine occupation qualifications would be sex discrimination, covered in a different provision.

13. Whatever the Supreme Court makes of this argument, it should be noted that neither the definition of sex in the SDA nor the rules relating to genuine occupational qualifications carried over into the Equality Act 2010. Any assessment of the effect of the GRA on the EqA, if any, must therefore be done with due regard to the changes that the EqA introduced when consolidating anti-discrimination law.

    The Explanatory Notes

14. In explaining the consequence of being issued a GRC, the Scottish Government rely on the Explanatory Notes to the GRA which stated that a male-to-female transsexual who obtained a GRC “would, for example, be entitled to protection as a woman under the Sex Discrimination Act 1975”. We know that courts can rely on Explanatory Notes as an aid to interpretation. As Lord Steyn noted in Westminster City Council v National Asylum Support Service [2002] UKHL 38, at [5]:

    Insofar as the Explanatory Notes cast light on the objective setting or contextual scene of the statute, and the mischief at which it is aimed, such materials are therefore always admissible aids to construction. They may be admitted for what logical value they have. Used for this purpose Explanatory Notes will sometimes be more informative and valuable than reports of the Law Commission or advisory committees, Government green or white papers, and the like.

15. This much is clear. What is also clear, however, is that the intention of Parliament cannot and should not be equated with the intention of the Government or of a subset of Government that set out what it hoped the legal effect of what Parliament actually enacted. As Lord Nichols noted in R v Secretary of State for the Environment ex p Spath Holme, (2001) 1 All ER 195:

    “Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful, so long as it is remembered that the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such-and-such a meaning 'cannot be what Parliament intended', they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.”

    …

    “As Lord Reid said in Black-Clawson International Ltd v PapierwerkeWaldhof-Aschaffenburg A G [1975] AC 591, 613:

    'We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used.'

    In identifying the meaning of the words used, the courts employ accepted principles of interpretation as useful guides. For instance, an appropriate starting point is that language is to be taken to bear its ordinary meaning in the general context of the statute.

16. Applying this to the specific issue of Explanatory Notes, Lord Steyn in Westminster City Council, while noting that Explanatory Notes could be used as interpretative aids, cautioned at [6] that

    What is impermissible is to treat the wishes and desires of the Government about the scope of the statutory language as reflecting the will of Parliament. The aims of the Government in respect of the meaning of clauses as revealed in Explanatory Notes cannot be attributed to Parliament. The object is to see what is the intention expressed by the words enacted.

17. So, Explanatory Notes cannot be taken as reflecting the will of Parliament. Rather, they can be used to shed light on the context of the Statute or the mischief at which it is aimed. But we know that the mischief at which the GRA was aimed was the obligations arising from Goodwin v United Kingdom, none of which pertain to discrimination law. We know that the ECtHR expressly noted that the discrimination issue complained of in Goodwin was already adequately covered under existing UK law.

18. As a guide to the purpose of the GRA and the scope of s9(1), the Explanatory Notes do not appear to be particularly insightful or useful. They reflect what the Government at the time wished would be the effect of s9(1) GRA, but the question before the Supreme Court is not what the Government in 2004 hoped for, it is what the legal meaning and effect of the words enacted by Parliament in 2004 are, having due regard to settled principles of statutory interpretation relating to both deeming provisions and the underlying purpose of the Act, read as a whole.

    Is s9(1) GRA a deeming provision or “a general provision of statutory interpretation”?

19. The Scottish Government make a bold argument in their submissions: that s9(1) GRA operates in a manner equivalent to s3 of the Human Rights Act 1998. The submissions do not explicitly argue that s9(1) GRA is not a deeming provision, but that is the necessary implication. This argument is an impressive feat of advocacy. While it is incorrect as a matter of statutory interpretation, it is nevertheless sufficiently elegant that it seems correct at first glance. Effectively the argument is that s9(1), read in conjunction with s9(2) GRA is “a dual-facing, general provision of statutory interpretation”. Rather than s9(1) GRA creating a legal fiction, the scope of which is limited to achieve the purposes of the GRA, the Scottish Government is arguing that it creates a general presumption for the interpretation of all legislation.

20. The textual hook for this is s9(2) GRA, which states that s9(1) “does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards)”. The Scottish Government is inferring from the fact that s9(2) GRA references the interpretation of enactments that it therefore creates a free-standing interpretative presumption. In my view, s9(2) GRA operates to delineate the temporal reach of s9(1) GRA; it does not convert s9(1) GRA from a deeming provision into a free standing interpretative obligation similar to s3 HRA. Rather, it clarifies that, whatever effect s9(1) GRA would have on the interpretation of legislation, that effect operates both prospectively and retroactively. This does not tell us anything else about the effect of s9(1) GRA.

21. The significance of this argument is this: if s9(1) GRA is not a deeming provision, the established principle that deeming provisions are given no wider scope than is necessary to achieve the purposes of the Act does not apply. If s9(1) GRA is akin to s3 HRA, it places a sweeping interpretative obligation on courts to presume that all references to sex must be references to certificated sex, not biological sex. This presumption can be rebutted by relying on s9(3) GRA, but setting the default like this means that determining whether a reference to sex in another statute means biological sex or certificated sex involves only an examination of whether s9(3) GRA applies. This is because s9(1) GRA is simply presumed to apply. There is then a further question of whether s9(3) GRA must be expressly invoked or whether it can be determined to apply based on the context and purpose of the other statute.

22. Compare this to the approach of Sex Matters. They argue that there are effectively two tests that must be met before s9(1) GRA can modify the meaning of sex in a particular statute:

    1. It must be established that s9(1) GRA intended to apply to this other statute. Because s9(1) GRA is a deeming provision, it is given effect only so far as is necessary to achieve the purposes of the GRA. If the GRA cannot be said to have the purpose of changing the meaning of sex for this other statute, s9(1) does not apply. No further analysis need be done.

    2. Additionally, even if, on an ordinary construction, s9(1) GRA would apply to this other statute based on analysis of the purpose of the GRA, s9(3) GRA requires courts to examine the provisions and purposes of the other statute to determine if there has been provision made to engage s9(3) GRA, disapplying s9(1) GRA.

23. It is probably highly artificial to present this as a two-stage test where the purpose of the GRA is considered first and the purpose of the other statute is considered second. In many cases both can be considered together, given that it can be presumed that s9(3), because it forms part of the GRA, can be said to inform its purposes too. Nevertheless, there is some benefit in asking as a starting point whether the GRA can properly be said to have intended to change the law in relation to, for example, intimate medical examination or freedom of association for lesbians. The textual hook for s9(3) GRA is “provision made”. There may simply be no express or implied provisions which could serve to hook s9(3) and yet a court could reasonably conclude that it was never the intention of the GRA to modify the law in X area. So, while these two tests can in theory be considered together simultaneously, it should be recognised that failing either of them will disapply s9(1) GRA.

24. The Scottish Government implicitly reject this approach, favouring a single test relating to s9(3) GRA because s9(1) GRA is simply presumed to apply, creating a default interpretative presumption for all legislation. In support of this argument, the Scottish Government use the example of s4 of the Rehabilitation of Offenders Act 1975 which provides that “a person who has become a rehabilitated protected person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who has not committed or been charged with or prosecuted for to convicted of or sentenced for the offence or offences which were the subject of that conviction”.

25. This is a good example, but it does not support the claim that s9(1) GRA creates a sweeping interpretative presumption. Rather it aligns with the general principle that the interpretation of “for all purposes” provisions requires consideration of the purpose of the parent Act, read as a whole. For example, in Truter v Ministry of Justice [2024] EWHC 1688 (KB), the High Court concluded at [75] that the “for all purposes” clause in the Rehabilitation of Offenders Act must be read in light of the Act as a whole: “the starting point in the present case is to interpret the words of the statute in question, in this case the 1974 Act , so as to understand its purpose… Based on my interpretation of the 1974 Act, the purposes of that Act are limited”. The use of the term “for all purposes” does not imply an expansive interpretative obligation which takes no account of the purpose of the underlying Act read as a whole. Therefore, the Rehabilitation of Offenders Act, while stating that a rehabilitated protected person shall be treated for all purposes in law as a person who had not committed an offence, does not prevent courts or private individuals from referring to spent convictions the questions in an actuarial sexual reoffending predictor tool. It was not the intention of the 1974 Act to prohibit this, notwithstanding the “for all purposes” provision.

26. Similarly, in Hussain v Waltham Forest LBC [2020] EWCA Civ 1539, the Court of Appeal looked beyond the phrase “for all purposes” to examine the underlying purpose of the 1974 Act in concluding that it did not proscribe the admission of evidence of conduct constituting spent convictions. Notwithstanding the “for all purposes” clause, it could not have been intended that, if a criminal conviction based on conduct was treated as being spent, that would prohibit that same conduct from being used to found a civil claim.

27. The purpose of the Rehabilitation of Offenders Act 1974, read as a whole, was essential to determining the scope of s4. That purpose was not to require a relevant person to be treated for all purposes in law as though they had never committed an offence. The purpose was to balance the desire to alleviate the practical and legal burden of past convictions against the need to protect the public from the risk of repeat criminal conduct. This purpose was tied directly to rehabilitation not institutional amnesia.

28. Taking this caselaw together, we can see that s4 of the 1974 Act operates nothing like s3 of the Human Rights Act. The interpretative obligation arising from s3 HRA does not require prior consideration of the purposes of the HRA before it is engaged; it does not relate to the creation of a legal fiction or a counter-factual declaration. The obligation in s3 HRA is expressly directed at courts: it places a clear duty to interpret other legislation as far as possible to be compatible with Convention rights. This is simply not the case for either s4 of the Rehabilitation of Offenders Act 1974 or s9 of the GRA, which contain no express obligation on courts to interpret other legislation in a particular way. Rather, they make provision for how a conviction shall be treated in law or for what a person’s sex shall become in law, having regard to each statute as a whole and the purposes to which each Act is directed.

29. In my view, s9(1) GRA is a simple deeming provision akin to all other deeming provisions and subject to the ordinary principles of interpretation which relate to deeming provisions. There are far more similarities between s9(1) GRA and the legal fiction presuming survivorship in regard to claims of property than there are between s9(1) GRA and s3 of the Human Rights Act. Compare s9(1) GRA to s184 of the Law of Property Act 1925:

    In all cases where, after the commencement of this Act, two or more persons have died in circumstances rendering it uncertain which of them survived the other or others, such deaths shall (subject to any order of the court), for all purposes affecting the title to property, be presumed to have occurred in order of seniority, and accordingly the younger shall be deemed to have survived the elder.

30. The work that s9(2) GRA does is to make it clear that, unlike s184 of the Law of Property Act, the fiction created in s9(1) GRA applies retrospectively and prospectively to the interpretation of legislation that the GRA applies to. All that s9(2) GRA does is stipulate the temporal scope of the deeming provision in s9(1) GRA. It does not convert s9(1) GRA into something remotely resembling s3 HRA.

31. The caselaw interpreting s4 of the Rehabilitation of Offenders Act 1974 is instructive for the interpretation of s9 GRA, given the similar wording. That caselaw makes it clear that these are deeming provisions which require analysis of the purposes of the parent Act, read as a whole, to delineate the scope of their operation. This is necessarily the case and must occur before one considers the effect of additional limitation provisions akin to s9(3) GRA.

    The Equality Act 2010

32. The thrust of the Scottish Governments argument in relation to the Equality Act is that it can be interpreted with reference to the Sex Discrimination Act 1975. Specifically in relation to the protected characteristic of sex, the Scottish Government argue that the EqA definitions are similar but not identical to those in the SDA. This is a point which is glossed over by the Scottish Government but heavily emphasised by For Women Scotland. As I noted in my previous post:

    FWS argue that the change in statutory language from the SDA to the EqA matters for determining whether Parliament intended a variable or consistent meaning of ‘sex’. The SDA stated that woman ‘includes a female of any age’, whereas the EqA states that woman “means a female of any age”. FWS argue that this change is significant because it “clarifies and removes any possible ambiguity” [55]. Parliament chose not to use the more ambiguous statutory formulation of “includes” which could imply an open list of examples and instead chose “means” which is not ambiguous and fixes a statutory definition, confined to what it states woman means, for the whole act.

    Lady Dorrian concluded that the definition of sex can include both biological sex and certificated sex depending on the context. In particular, she stressed that the terms of the EqA “do not, on their face, or in the context in which they occur, mandate the adoption of a biological interpretation” (FWS2, IHCS, [47]). FWS argue that this approach is more consistent with a definition reliant on the term '“includes” and is not consistent with a definition reliant on the term “means” where the definition refers to “male” and “female”.

33. In contrast, the Scottish Government note that there was a change in wording from the SDA to the EqA: s82 SDA states that “unless the context otherwise requires … woman includes a female of any age”. In contrast, s212 of the EqA states that “In this Act … woman means a female of any age”. For Women Scotland argue that these changes matter and have meaning, the Scottish Government argue that they don’t. Instead, the Scottish Government argues that rather than these changes indicating an attempt to narrow a previously capacious definition, we can read in a general presumption in favour of context altering the meaning of defined terms, where necessary.

34. In support of this claim, the Scottish Government surprisingly relies on Secretary of State for Work and Pensions v M [2004] EWCA Civ 1343. In my previous post, I relied on this exact paragraph in support of the direct opposite proposition:

    This presumption in favour of a consistent meaning is reinforced in this case because there are statutory definitions provided. The purpose of statutory definitions is precisely to fix meaning throughout legislation, especially when dealing with an Act such as the EqA which is based heavily upon referencing back to the list of protected characteristics set out in Part 1. While a term could have a statutory meaning but as a rare exception, that might be taken to be displaced as a result of genuine drafting error, this principle cannot be used to adopt an innovative approach to interpretation entirely. As the Court of Appeal Noted in Secretary of State for Work and Pensions v M [2004] EWCA Civ 1343, at [84] in the context of statutory presumptions created by the Human Rights Act:

    “The saving for context in a definition section is a standard device to spare the drafter the embarrassment of having overlooked a differential usage somewhere in his text (and it will be a comfort that the only examples in Bennion Statutory Interpretation (4^th ed), §373, of such differential usage come from statutes of 1833, 1855 and 1861). To use it as a vehicle for the innovative approach to interpretation created by s.3 of the Human Rights Act is, in my judgment, to overload it to the point of breakdown.”

    In order for this to be consistent with a variable approach to the meaning of sex, references to sex which clearly and unambiguously can only mean biological sex, such as in the context of a pregnant woman, same-sex sexual orientation, or the establishment conditions for single-sex services, would need to be determined to have been embarrassing drafting errors. An appeal to terms varying depending on context, where there is a statutory definition, cannot be used as a vehicle for an innovative approach to interpretation. It cannot be used in the context of s3 of the Human Rights Act and it cannot be used in the context of s9(1) GRA.

    The interpretative obligation in the Human Rights Act is, on any argument, considerably stronger than any obligation arising from s9 GRA. Section 3 HRA requires court to '“so far as it is possible to do so” read and give effect to legislation in a way which is compatible with Convention rights. Section 6 HRA places an additional duty on courts not to act in a way which is incompatible with a Convention right. That is a strong combination of obligations which act as “a filter through which the meaning of the words in their original context must now pass” but the Court of Appeal in M concluded that “If it cannot, and if the words appear in or are demanded by primary legislation, the task of solution passes to ministers and to Parliament. If the offending words are in secondary legislation, the task is primarily for the courts” [84].

    Deeming provisions cannot on any view be taken to introduce stronger interpretative presumptions than the Human Rights Act. If context cannot be used to read in human rights compliance, it can’t be used to read in a variable approach to a statutory definition. Sections 17 and 18 of the EqA refer to discrimination against “a woman” on the basis of “a pregnancy of hers”. If a s9(1) GRA reading of “woman” is adopted, this must exclude from protection any trans men with GRCs who become pregnant. If one wishes to argue that “context” can be relied on to interpret around this, one would need to infer, following the Court of Appeal in M, that references to “woman” here were embarrassing drafting errors: woman was intended to include males with GRCs and exclude females with GRCs so either ss 17 and 18 should have referred to a “pregnant person” or in this provision, woman can take on its biological meaning without affecting how the term is used elsewhere in the Act.

    That approach gets the entire enterprise backwards: the established principles of statutory interpretation point towards the task for the court being to look to the statute as a whole to see how one or another interpretation would fit within the legislative scheme, on the presumption that the same meaning should be fixed throughout. The fact that one approach would create absurdities and unworkability in the Act will ordinarily mean that it should be abandoned, not that meaning should be bifurcated such that a defined term means different things at different parts of the Act.

35. Thus, while the Scottish Government Argue that the absence of “unless context otherwise requires” from s212 EqA is no barrier to a variable meaning being given to a defined term, the very case that the Scottish Government rely on to support this claim tells us that such variability can only be read in to the application of statutory definitions if a court is satisfied that there has been an embarrassing drafting error. Even on the Scottish Government’s argument that s9 GRA gives rise to a general interpretative obligation akin to s3 HRA, the court in M rejected the idea that one could read the kinds of interpretative obligations arising from s3 HRA into the phrase “unless context otherwise requires” when used as part of a statutory definition. If that cannot be done with regard to the Human Rights Act where the phrase “unless context otherwise requires” is expressly on the face of the Act to be interpreted, it cannot be done in the context of the GRA where that phrase has been expressly removed from the Act to be interpreted.

    Gender Reassignment Discrimination

36. The Scottish Government argue that it is inherent within the definition of the protected characteristic of gender reassignment that the completion of a process of reassignment implies a change in the protected characteristic of sex. Section 7 EqA states that:

    A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex.

37. On the face of this provision there is nothing to suggest that the EqA takes it to be the case that undergoing a process or part of a process for the purpose of reassigning sex actually does as a matter of fact or law change sex. We know that sex and gender are used interchangeably in UK law. Gender reassignment discrimination protections apply and have applied since the 1990’s to those proposing to reassign their sex, whether or not it is possible to achieve this in fact or law.

38. S7 EqA delineates the scope of who is protected under the characteristic of gender reassignment. It does so by tying protection to a process for the purpose of reassigning sex by changing physiological or other attributes of sex. An individual can undergo full medical transition and do nothing with regard to the GRA. Post the enactment of the GRA, there is no authority for the claim that changing physiological attributes of sex changes sex in law. The intention of the GRA was to create an exhaustive process and to determine the scope of where a change in legal sex will and won’t have legal effect. S7 of the EqA is significantly broader than the process set out in the GRA; it will evidently include that process as an example of a process or part of a process for the purposes of reassigning sex, but the protection does not imply that reassignment of sex necessarily changes sex in the EqA any more than a process of changing physiological attributes changes one’s sex in the EqA.

39. We know that medical intervention does not change legal sex for any purpose, let alone for the EqA, and yet s7 EqA nevertheless includes that as an example of a process for the purpose of reassigning sex. It is simply not tenable to infer from the fact that s7 EqA mentions a process for the purpose of reassigning sex that any of these processes, physiological or other, result in a change in legal status under the EqA. More by way of argument would be needed to establish this change in status than the mere fact that s7 EqA mentions a process for the purpose of reassigning sex; otherwise physiological change would be sufficient to effect this status change. It definitively isn’t.

    Pregnant Men

40. The Scottish Government note that sections 17 and 18 of the EqA which protect from pregnancy discrimination are afforded only to women within the meaning of the Act. This is a point stressed heavily by both For Women Scotland and Sex Matters, who argue that, because the definition of sex must fix the meaning for the whole Act, the absurdity of excluding people like Freddie McConnell (female-to-male transgender people with GRCs stating that they are men) from protection from discrimination relating to their pregnancies is strong evidence that Parliament did not intend for sex in the EqA to be modified by the GRA.

41. In contrast, the Scottish Government argue that all of these references to a woman who is pregnant are capable of being interpreted to apply to “pregnant men”. Their argument is that interpreting sections 17 and 18 in this manner would require a court to give the term “woman” in these provisions a different meaning to the meaning the Scottish Government contend is the default. Effectively all parties agree that it’s just obvious that the term “woman” in these provisions means a biological female. For Women Scotland and Sex Matters see this as evidence that Parliament therefore intended woman to mean biological female throughout the Act. The Scottish Government are presenting this as an embarrassing drafting error: Parliament intended to use something akin to “pregnant person” or “birthing parent” or “gestational carrier” but just overlooked the fact that it accidentally used “pregnant woman” instead.

42. It is worth returning to the authority the Scottish Government cited to support its contention that a term with a statutory definition can have different meanings throughout the same act, where context requires. In Secretary of State for Work and Pensions v M [2004] EWCA Civ 1343, at [84] the Court of Appeal noted that:

    “The saving for context in a definition section is a standard device to spare the drafter the embarrassment of having overlooked a differential usage somewhere in his text (and it will be a comfort that the only examples in Bennion Statutory Interpretation (4^th ed), §373, of such differential usage come from statutes of 1833, 1855 and 1861). To use it as a vehicle for the innovative approach to interpretation created by s.3 of the Human Rights Act is, in my judgment, to overload it to the point of breakdown.”

43. The Scottish Government’s argument is that the drafters of the Equality Act 2010, when they used the term “pregnant woman” made the kind of embarrassing drafting error not seen in the UK since the 1860’s. Needless to say, this is a bold, perhaps even brave, claim to make.

44. The alternative argument is more sensible: a female-to-male transgender person with a GRC stating that they are male could claim gender reassignment discrimination if treated less favourably on the basis of pregnancy. The Scottish Government argue that this would be direct discrimination on the basis of gender reassignment. That is simply false. If the Scottish Government is correct about the relationship between the GRA and the EqA, a trans man with a GRC will be legally a man for the purposes of the EqA. The comparator for gender reassignment discrimination is someone of the same sex without the protected characteristic of gender reassignment (Green v Secretary of State for Justice [2013] EWHC 3491 (Admin). If the Scottish Government is right about the applicability of s9(1) GRA, then the comparator in a case such as this is a man without the characteristic of gender reassignment: a biological male.

45. Biological males cannot become pregnant. There will be no circumstances in which a claim of direct gender reassignment discrimination can be established. This was exactly the reason that led to pregnancy discrimination needing its own express carve out in the Equality Act: previous attempts to establish sex discrimination failed because a woman could not find an appropriate male comparator because no man can be similarly situated to a pregnant woman; Turley v Allders Department Stores Ltd [1980] ICR 66, 69 (EAT).

46. The solution was either to legislate around the issue or to rely on the doctrine of exact correspondence (where the people negatively affected by a rule all share the same sex - in this case all those discriminated against for being pregnant are women - then that is direct sex discrimination).

47. However, the argument advanced by the Scottish Government references neither of these solutions because it gets the comparator test wrong. What is more, it conflicts with European Court of Justice jurisprudence on pregnancy discrimination which lay the groundwork for the pregnancy discrimination provisions that we have now. In Dekker v Stichting Vormingscentrum voor Jong Volwassenen (VJV-Centrum) Plus, Case C-177/88 [1990] ECR 1-3941, the ECJ held that “only women can be refused employment on grounds of pregnancy and such a refusal therefore constitutes direct discrimination on grounds of sex”. See also Handels- og Kontorfunkiionccrernes Forbund i Danmark (acting for Hertz) v Dansk Arbejdsgiverforening Case C-179/88 [1990] ECR 1-3979; “the dismissal of a female worker on account of pregnancy constitutes direct discrimination on grounds of sex”.

48. Whatever way you look at it, the fact that the Equality Act explicitly ties pregnancy discrimination to being a woman presents a significant challenge to the Scottish Government’s arguments. I am not convinced that the arguments advanced to address this challenge are convincing and, in fact, it seems as though reliance on Secretary of State for Work and Pensions v M does more harm for their argument than anything else.

    Same-Sex Marriage

49. The Scottish Government infers from the fact that the EqA makes reference to an area of law that is unequivocally affected by the GRA (marriage) that s9(1) GRA must therefore apply to s212 EqA. This moves too quickly. It is correct that Schedule 3 of the EqA provides for an exception to gender reassignment discrimination by a person whose consent is required to solemnise a marriage refusing to consent if they believe that one of the parties has a GRC. But that is all that this exception states. The fact that a GRC has the effect of changing sex for the purposes of the law relating to marriage does not mean that does anything to alter the meaning of sex in the EqA even if solemnisation of marriage is a service under the EqA.

50. The service provided in the solemnisation of marriages will be governed by several areas of law. The fact that that it is governed by the law relating to marriage and that the law relating to marriage is modified by the GRA does not mean that the EqA is modified by the GRA, even if the EqA permits gender reassignment discrimination arising because the service provider reasonably believes a party has a GRC. It is evident that gender reassignment discrimination can occur in the solemnisation of marriages. For example, a female-to-male transgender person without a GRC who has taken testosterone and appears masculine could be refused solemnisation for a marriage to a man on that basis. This would be direct gender reassignment discrimination because the comparator is a woman who is not a transsexual. But this does not exhaust gender reassignment discrimination in this context and it can occur, in either a direct or indirect form, due to refusal to solemnise a marriage based on the fact that one party has a GRC. Whether it is direct or indirect is not obvious from this provision because this provision merely serves to set out a general exception.

51. Nothing can be inferred from the fact that the EqA mentions possession of a GRC in the context of marriages except that the GRA applies to the law in relation to marriages. The reference in Schedule 3, Part 6 is external to the EqA: it points to an area of law unequivocally modified by s9(1) GRA and carves out an exception for gender reassignment discrimination - whatever form it comes in - in the solemnisation of marriages under certain circumstances. There is no inward facing reference to the GRA in this provision except in so far as Schedule 3 Part 6 affirms that discrimination based on possession of a GRC can be gender reassignment discrimination. We know this. It does not mean that possessing a GRC changes sex within the EqA; it just means that someone who has a GRC has gone through a process of changing (legal) attributes of sex.

    Single-Sex Associations

52. The Scottish Government argue that it is currently unlawful for women-only associations to exclude biological males with GRCs. The example used in their submissions is that it is currently unlawful for a lesbian association to confine their membership to biological females who are sexually oriented towards other biological females. Instead, such associations must by law include biological males with GRCs who are sexually attracted to women.

53. Other examples that can be inferred from this argument but which are not mentioned in the Scottish Governments submissions are women-only support groups or associations of women who have been victims of male violence, including rape. There are exceptions for service providers such as rape crisis centres, but associations or networks of women who do not provide formal services to one another but do provide informal support and friendship are, according to the Scottish Government, required by law to include within their associations those biological males who have GRCs.

54. For Women Scotland, Sex Matters and the Lesbian Interveners argue that this interpretation is absurd, unworkable, and a violation of the human rights of women and lesbians. They argue that this absurdity, unworkability, and impact upon human rights should support the claim that Parliament never intended to strip these rights from women. The Scottish Government argue that this is what Parliament intended to do when it passed the GRA and the EqA.

    Women as a class

55. The Scottish Government argue that biological females are not a distinct class for the purposes of the Equality Act, either in relation to determining who shares the protected characteristic of being a woman or in relation to group based provisions such as the Public Sector Equality Duty.

56. We must therefore conclude that the Scottish Government is arguing that it was the intention of Parliament when passing the GRA to remove biological sex as a ground of discrimination law and that it was the intention of Parliament when passing the EqA to strip women and lesbians of their right to freedom of association on the basis of biological sex; to remove biological females as a protected class under the Act and to replace it with an artificial category of women which does not include all females and does include some males.

57. The Scottish Government is arguing that the purpose of the GRA was to override equality protections based on biological sex and replace them with protections based on possession or lack of a certificate that has heavy restrictions on its disclosure. The impact of this on the establishment conditions for single-sex services and on the doctrine of exact correspondence for direct sex discrimination is not considered.

58. In response to the argument from For Women Scotland that it is inherently unlikely that Parliament intended to exclude from the category of women who might benefit from positive action measures, those females who have GRCs, the Scottish Government argue that this is exactly what those seeking GRCs in the male gender wish. But this misses a central point about class-based equality duties: the are not about whether an individual member wishes to be benefited; they are about the need to be cognisant of the vectors of discrimination and disadvantage that affect the class as a group.

59. The fact that some black people do not wish to benefit from positive measures designed to improve the position of the group as a whole does not mean that they do not face disadvantages that only black people face. It does not mean that measures designed to alleviate those disadvantages do not benefit them. The individuals approval or disapproval of positive measures is irrelevant for the law relating to group disadvantage. What matters is the disadvantage faced by the group. It is evidently the case that biological females who do not identify as women, even those with GRCs, share certain important biological features with all females that can become vectors for discrimination and disadvantage.

60. The Scottish Government is arguing that Parliament in enacting the GRA and the EqA did not intend to legislate for the class of biological females and did not intend to alleviate discrimination and disadvantage faced by biological females except as an indirect knock on from alleviating discrimination and disadvantage faced by legal women. This is an entirely artificial category. There is nothing that could constitute a shared experience of discrimination or disadvantage within this group because it does not track anything that would be a vector for discrimination or disadvantage and instead tracks only secret certificate status.

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    If you’d like to read more on this topic, check out my forthcoming paper in the Law Quarterly Review: Michael Foran, Defining Sex in Law, (2025) LQR, (forthcoming), available <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4740870