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.
Thanks so much for this Michael. Notwithstanding(!) the chills that ran up and down my spine as you laid out the Scot Gov's case I can only say how much I appreciate the amount of effort you put into explaining the hurdles FWS are facing.
If you had asked the me of even five years ago if I ever expected to be waiting in anticipation of watching live the court case that will definitively decide on whether or not lesbians are allowed to have the freedom of association in this country or that men should be allowed to be excluded from Rape Crisis services and that our government would be explicitly backing both of these positions, I would have thought you had taken leave of your senses. How times change.
Hi, thanks for this. I hope you don't mind a comment from a former Parliamentary draftsman (one with absolutely no relevant inside knowledge and I haven't followed this issue or this case in detail).
I couldn't help thinking that both submissions give insufficient weight to the point of the definition of "woman" in s212 . Going back to the definition in the SDA - "woman includes a female of any age" it seems to me fairly clear that the point is simply to include under-age girls and female infants who would not in normal language be called "women". Beyond that, "woman" is left to mean whatever it would otherwise mean. When it comes to the EA, the definition is the same except that "includes" has changed to "means". I'm not sure too much weight should be put on this. Possibly, since (leaving aside the point about people who are women by virtue of a GRC) everyone is included in the definition who should be, maybe the drafter thought they might as well say "means". At any rate, it is at least not obvious what difference it makes, and while the change might be regarded as unhelpful it seems to me that it is still possible to read the definition in the same way as in the SDA - ie that its only point is to bring in girls and female infants. That's all it is saying.
If you read it in that way, it is then possible to say that the definition remains consistent throughout the EA ("woman" does always include "girl'), even if in some provisions "woman", in the case of an adult, includes a person with a GRC and in other cases not. In other words, it makes it easier to say that section 9(1) of the GRA operates in the case of some provisions in the EA and in other cases not.
If you start by saying (a) that section 9(1) GRA operates on the definition in section 212 EA or it doesn't, and (b) that the definition must be consistent throughout, then you end up with a reading that, whichever way you jump on the section 9 point, comes up with unsatisfactory or even absurd results in some cases. But if you say that the definition in section 212 is making a small point that isn't relevant to the GRC question (girls can't have a GRC), and that doesn't affect the meaning of "woman" in the case of adults, you then have to look at any given set of provisions in the EA and decide whether section 9(1) GRA operates for the purposes of those provisions, and you might get different answers in different cases. In other words, section 9(1) can operate direct on the different provisions of the EA rather than through the prism of the definition in section 212.
Of course, it still isn't a particularly satisfactory result that section 9(1) GRA might operate differently for provisions in the same Act. But we know that it operates differently for different provisions in the statute book as a whole. And in the end, each set of provisions in the EA is largely independent of the others. At least in this way, we are not forced into a choice between an inconsistent definition or highly unsatisfactory results. The definition in s 212 (for the purposes of the small point that it is making) always operates consistently.
Anyway, for what it's worth and sorry if this is misconceived for whatever reason or stuff you've already taken into account. As I say, I haven't followed the issue in detail.
Thanks David, this is a great question. I understand your point about the original intention of "includes female of any age" to simply be a way to include girls as well as women. I suspect that is exactly what was intended. But I don't think that means that the change to "means a female of any age" is meaningless or superfluous. The includes/means pertains to both the "any age" part of this definition and the "female" part of this definition. I don't think that any party is arguing over the "any age" aspect; they're disputing what "female" means in this definition. One side is saying "female" is subject to s9(1) GRA and must be read to mean certificated female not biological female and the other is arguing that you must look to the purpose of both Acts read as a whole to determine whether this definition of a woman as female engages 9(1) or 9(3). For that, part of the argument of the Scottish Government is that Parliament had full knowledge of the GRA when it passed the EqA and the SDA definition largely carried over. In response, FWS are arguing that the definition didn't carry over unchanged and this change should be understood to have either clarified that woman means female and does not include some males or to have enacted a change from the SDA to narrow the ambiguous provision into a fixed one where woman is tied to female explicitly and that this matters for determining what female means in the Act.
I don't think it's right at all to say that each set of provisions in the EqA is largely independent of the others. The entire act is linked back to the list of protected characteristics. Sex is one of them. Any reference to the protected characteristic of sex has to be a reference back to the definition of sex provided in s11 read in conjunction with s212. It's a statutory definition - its point is to fix meaning throughout the Act. I think the M case is instructive here: arguing for a variable meaning here is equivalent to arguing that there are a whole bunch of embarrassing drawing errors in the Act that nobody picked up on.
s9(1) GRA doesn't hook only each reference to sex or woman in the EqA independently; that would make the statutory definition superfluous because it would imply that without s9(1), woman and sex could have a variable meaning in the Act anyway. But the statutory definition fixes the meaning of the defined term for the Act. If s9(1) of the GRA applies to the EqA, its textual hook has to be onto the terms "female" and "male" in s212 which then hook onto the meaning of the terms "woman" and "man" in both s212 and s11 which then fixes the meaning for the protected characteristic of sex throughout the Act.
We might just disagree on this and I'm happy to hear more of your perspective - my expertise is on the judicial interpretation side not the drafting side so I'm very interested to learn more!
Hi, thanks very much for this considered response. I guess I was wondering whether it was possible to approach this without putting so much emphasis on an interpretation provision which (as it seemed to me) was just making a point about children. Possibly you will say that I am not giving enough weight to the change from "includes" to "means". Maybe so, though it does seem to me that if the drafter were trying to make a substantive change (compared with the SDA) in what was meant by "woman" they would (or should!) have done so in a more obvious way. But I'll leave it there and will wait with interest to see what the Supreme Court has to say.
Thank you very much for this analysis. Re paras 55 onwards - and forgive me if this is a stupid question - if in the Scottish government's view there is no protection of women as a class - other than as a mix of some women and some males - how is this compatible with Article 14 of the ECHR?
Thanks so much for this Michael. Notwithstanding(!) the chills that ran up and down my spine as you laid out the Scot Gov's case I can only say how much I appreciate the amount of effort you put into explaining the hurdles FWS are facing.
If you had asked the me of even five years ago if I ever expected to be waiting in anticipation of watching live the court case that will definitively decide on whether or not lesbians are allowed to have the freedom of association in this country or that men should be allowed to be excluded from Rape Crisis services and that our government would be explicitly backing both of these positions, I would have thought you had taken leave of your senses. How times change.
Thank you Michael. Very interesting and clearly expressed.
I was grateful for the information surrounding the use of the term “sex” in s9(1) GRA.
Hi, thanks for this. I hope you don't mind a comment from a former Parliamentary draftsman (one with absolutely no relevant inside knowledge and I haven't followed this issue or this case in detail).
I couldn't help thinking that both submissions give insufficient weight to the point of the definition of "woman" in s212 . Going back to the definition in the SDA - "woman includes a female of any age" it seems to me fairly clear that the point is simply to include under-age girls and female infants who would not in normal language be called "women". Beyond that, "woman" is left to mean whatever it would otherwise mean. When it comes to the EA, the definition is the same except that "includes" has changed to "means". I'm not sure too much weight should be put on this. Possibly, since (leaving aside the point about people who are women by virtue of a GRC) everyone is included in the definition who should be, maybe the drafter thought they might as well say "means". At any rate, it is at least not obvious what difference it makes, and while the change might be regarded as unhelpful it seems to me that it is still possible to read the definition in the same way as in the SDA - ie that its only point is to bring in girls and female infants. That's all it is saying.
If you read it in that way, it is then possible to say that the definition remains consistent throughout the EA ("woman" does always include "girl'), even if in some provisions "woman", in the case of an adult, includes a person with a GRC and in other cases not. In other words, it makes it easier to say that section 9(1) of the GRA operates in the case of some provisions in the EA and in other cases not.
If you start by saying (a) that section 9(1) GRA operates on the definition in section 212 EA or it doesn't, and (b) that the definition must be consistent throughout, then you end up with a reading that, whichever way you jump on the section 9 point, comes up with unsatisfactory or even absurd results in some cases. But if you say that the definition in section 212 is making a small point that isn't relevant to the GRC question (girls can't have a GRC), and that doesn't affect the meaning of "woman" in the case of adults, you then have to look at any given set of provisions in the EA and decide whether section 9(1) GRA operates for the purposes of those provisions, and you might get different answers in different cases. In other words, section 9(1) can operate direct on the different provisions of the EA rather than through the prism of the definition in section 212.
Of course, it still isn't a particularly satisfactory result that section 9(1) GRA might operate differently for provisions in the same Act. But we know that it operates differently for different provisions in the statute book as a whole. And in the end, each set of provisions in the EA is largely independent of the others. At least in this way, we are not forced into a choice between an inconsistent definition or highly unsatisfactory results. The definition in s 212 (for the purposes of the small point that it is making) always operates consistently.
Anyway, for what it's worth and sorry if this is misconceived for whatever reason or stuff you've already taken into account. As I say, I haven't followed the issue in detail.
Thanks David, this is a great question. I understand your point about the original intention of "includes female of any age" to simply be a way to include girls as well as women. I suspect that is exactly what was intended. But I don't think that means that the change to "means a female of any age" is meaningless or superfluous. The includes/means pertains to both the "any age" part of this definition and the "female" part of this definition. I don't think that any party is arguing over the "any age" aspect; they're disputing what "female" means in this definition. One side is saying "female" is subject to s9(1) GRA and must be read to mean certificated female not biological female and the other is arguing that you must look to the purpose of both Acts read as a whole to determine whether this definition of a woman as female engages 9(1) or 9(3). For that, part of the argument of the Scottish Government is that Parliament had full knowledge of the GRA when it passed the EqA and the SDA definition largely carried over. In response, FWS are arguing that the definition didn't carry over unchanged and this change should be understood to have either clarified that woman means female and does not include some males or to have enacted a change from the SDA to narrow the ambiguous provision into a fixed one where woman is tied to female explicitly and that this matters for determining what female means in the Act.
I don't think it's right at all to say that each set of provisions in the EqA is largely independent of the others. The entire act is linked back to the list of protected characteristics. Sex is one of them. Any reference to the protected characteristic of sex has to be a reference back to the definition of sex provided in s11 read in conjunction with s212. It's a statutory definition - its point is to fix meaning throughout the Act. I think the M case is instructive here: arguing for a variable meaning here is equivalent to arguing that there are a whole bunch of embarrassing drawing errors in the Act that nobody picked up on.
s9(1) GRA doesn't hook only each reference to sex or woman in the EqA independently; that would make the statutory definition superfluous because it would imply that without s9(1), woman and sex could have a variable meaning in the Act anyway. But the statutory definition fixes the meaning of the defined term for the Act. If s9(1) of the GRA applies to the EqA, its textual hook has to be onto the terms "female" and "male" in s212 which then hook onto the meaning of the terms "woman" and "man" in both s212 and s11 which then fixes the meaning for the protected characteristic of sex throughout the Act.
We might just disagree on this and I'm happy to hear more of your perspective - my expertise is on the judicial interpretation side not the drafting side so I'm very interested to learn more!
Hi, thanks very much for this considered response. I guess I was wondering whether it was possible to approach this without putting so much emphasis on an interpretation provision which (as it seemed to me) was just making a point about children. Possibly you will say that I am not giving enough weight to the change from "includes" to "means". Maybe so, though it does seem to me that if the drafter were trying to make a substantive change (compared with the SDA) in what was meant by "woman" they would (or should!) have done so in a more obvious way. But I'll leave it there and will wait with interest to see what the Supreme Court has to say.
Michael,
Thank you very much for this analysis. Re paras 55 onwards - and forgive me if this is a stupid question - if in the Scottish government's view there is no protection of women as a class - other than as a mix of some women and some males - how is this compatible with Article 14 of the ECHR?