Michael Foran: Sex, Gender, and the Scotland Act

Yesterday, the Gender Recognition Reform (Scotland) Bill was heard at Stage 3. If it receives royal assent, it will amend the Gender Recognition Act 2004 to make it easier for people in Scotland to change their legal sex. This has proven to be extremely controversial, prompting calls from some feminist groups that the introduction of “Self-ID” via a statutory declaration will undermine women’s sex-based rights. In contrast, trans-advocacy groups have welcomed this Bill, viewing it as necessary for the full recognition of gender-based rights. This very contentious debate reveals an important tension running through UK equality law, although not the tension often assumed. Many have argued that women’s sex-based rights are under threat. Many have argued that the recognition of trans women as women for the purposes of UK law poses no threat to women’s rights. 

In this post I will argue that both of those claims are partially true, and that this fact may prompt action on behalf of the UK government. Specifically, the Gender Recognition Reform Bill, coupled with the recent decision in For Women Scotland will likely destabilise existing categories and frameworks for the purposes of the reserved matter of equal opportunities and could therefore lead the Secretary of State to issue a s.35 order prohibiting the Presiding Officer from submitting the Bill for Royal Assent. Section 35(1)(b) states that this can be done where the Bill in question contains provisions: 

which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.

Although this power has never been used, there is a distinct possibility that the change to the law in this area may satisfy the requirements for issuing a s.35 order, given that equal opportunities is a reserved matter.

Sex and Gender

Much of the debate over this issue revolves around whether or not a system of self-ID undermines women’s sex-based rights. 

In ordinary parlance, sex refers to one’s biological sex; male or female. Gender is generally much more contested. To some it simply connotes biological sex. To others, it refers to the social norms and expectations which attach to one’s sex in a given socio-temporal context, often amounting to stereotypes. Further still, and increasingly popular, is the claim that gender is an individual identity. 

It might seem as though it’s up to every individual how they wish to conceive of sex, gender, and the relationship between them. But if legal rights and obligations are grounded in one or both of these concepts, then neutrality is not an option. These are not simply different concepts. They are rival conceptions of the same concepts. 

This is further complicated by the fact that these concepts are never simply a manifestation of individual claims. They are always group-oriented. The claim that one is a woman is a claim to be included within a particular category of persons and to be excluded from another. It is also a claim to include some persons and to exclude other persons within the group that one is a part of. Legal protection for one’s membership within a protected group cannot be provided if there are no settled criteria for determining whether one falls within or outwith that category. 

Sex-Based and Gender-Based Rights 

For a time, there was ambiguity as to the interaction between the Gender Recognition Act 2004 and the Equality Act 2010. Last week, that came to a head. In the For Women Scotland case, the Outer House of the Court of Session was forced to decide which conceptions of sex and gender are embraced by UK law. Lady Haldane concluded that the legal concept of “sex” can and does include more than biological sex. The upshot was that, for the purposes of legislation concerning the representation of women on company boards, women includes both biological women and those trans women who have obtained a Gender Recognition Certificate stating that their sex is female. 

It is here where the tension I alluded to at the beginning of this post arises. One of the recurring arguments advanced around Self-ID laws is that they will undermine women’s sex-based rights to exclude men from single-sex spaces such as changing rooms, toilets, and women’s shelters. But this argument is premised upon the belief that women have a legal right to access single-sex spaces. They do not. What is provided for in the Equality Act is an exception which permits duty-bearers to create exclusive spaces if they wish and to exclude members of the opposite sex. This is only permissible where it is objectively justified. The same is true for exclusion on the basis of gender-reassignment. 

The result of the For Women Scotland judgment is that for most instances, except for legislation “where it is clear that ‘sex’ means biological sex” [53], a holder of a Gender Recognition Certificate will be legally considered to be the sex of their “acquired gender”. This is unlikely to affect sex-based provision in most areas. There remains an exception to the general norm of non-discrimination on the basis of gender-reassignment which permits duty-bearers to set up services which specifically exclude persons, even those with a Gender Recognition Certificate.

Having said that, the possession of a GRC clearly does matter for the assessment of whether exclusion is objectively justified. More by way of justification will be needed to exclude someone with a full GRC compared to someone who is covered by the protected characteristic of gender reassignment. As such, a change in the law making it more permissible for people to obtain a GRC may have an adverse impact on the ability of single-sex spaces to exclude. 

Additionally, certain provisions in the Equality Act permitting the setting up of single-sex services seem to envisage them to be defined by reference to biological sex. For example, one of the conditions in Sch 3 [27] that can be satisfied in order to justify the establishment of a single-sexed service is that “only persons of that sex have need of the service”. Another is where there is likely to be physical contact between persons and someone might reasonably object if that occurs from someone of the opposite sex. It is clear that here these provisions envisage sex to mean biological sex. If the category of sex is generally considered to be a legal construct, including any person who is legally recognised as falling within that category, then there are no services that only persons of one sex need. Similarly, the justification for pregnancy discrimination being direct sex discrimination (only women can become pregnant so all pregnancy discrimination is sex discrimination) is no longer coherent. 

These concerns formed part of the argument advanced by For Women Scotland in this case: the Equality Act 2010 envisaged the protected characteristic of gender reassignment to cover trans persons and the protected characteristic of sex to refer to biological sex. Indeed, this seems to have been reflected in the legislative framework itself; in section 212, the interpretation provision, it is stated in subsection (1) that “‘woman’ means a female of any age and ‘man’ means a male of any age.” 

These arguments were rejected, given the clear intention of the 2004 Act that a holder of the GRC will be considered to legally be the sex that corresponds with their acquired gender “for all purposes”. 

This being the case, single-sex services or spaces can still legally continue to exclude those of the opposite biological sex, so long as they meet requirements of objective justification set out in the Equality Act as they pertain to the protected characteristic of gender reassignment. What this means is that single-sex services or spaces envisaged by the Equality Act refer to legal sex, not biological sex, but within that, duty-bearers may still discriminate on the basis of gender reassignment if it is objectively justified. 

One important upshot here is that a person in possession of a GRC stating that they are a woman may still be excluded from a female-only space if it is objectively justified precisely because there is no sex-based right to have access to female-only spaces. The sex- and gender-based rights under the Equality Act are rights not to be subject to wrongful treatment in the form of discrimination, victimisation, and harassment. They do not include rights of access to services where duty-bearers have been given discretion to decide to exclude, subject to tests of objective justification. If a GRC holder is legally a woman, then her exclusion from a women’s support group cannot be on the ground of sex, it would be on the ground of gender reassignment, which permits such exclusion in certain circumstances. 

The issue is that possession of a GRC will make that test harder to meet and a dramatic expansion of GRC holders might in practice affect the ability of single-sex spaces to exclude.

If that sounds confusing, it’s because it is. The law in this area, even with the clarification provided by the For Women Scotland judgment, is extremely convoluted as a result of the legislative framework implicitly accommodating multiple conflicting definitions of sex. There is no sex-based right to inclusion within a women’s only space, only rights not to be unlawfully excluded or discriminated against on the basis of protected characteristics. 

There may be claims that can be brought in indirect-discrimination that the failure to provide female-only spaces is unlawful but even here, that would not enshrine a right to access such spaces where one has been excluded, unless such exclusion is on the basis of a protected characteristic and there is no objective justification for it. The Equality Act makes it clear that, where the person being excluded is transgender, that exclusion may be justified, depending on the circumstances. 

The issue here is better seen as a social and political argument that the category of women should reflect biological sex, rather than identity. That is a legitimate concern, as is the concern that the category of women should reflect identity and not biological sex. But the legislative framework as it stands reflects neither. Or rather, it attempts to reflect both. 

Equal Opportunities and Positive Measures

So far, the focus of this post has been on the individual rights that derive from one’s sex or gender. That forms an important aspect of equality law: individual rights not to be subject to wrongful discrimination. There is however another aspect of equality law: the s.149 public sector equality duty, establishing positive obligations to advance equal opportunities by taking into account the need to close advantage gaps which exist between various social groups.

It is here where conceptual clarity is needed most because one cannot be attuned to disparities between various groups at a nation-wide level if the membership of those groups is different between Scotland and the rest of the UK. 

The Equality Act places an obligation upon all public officials to have due regard for the need to advance equality of opportunity between persons who share a relevant characteristic and those who do not. What this means in this context is that the law requires appropriate attention be paid to disparities which exist between women and men or between trans persons and cis-gendered persons. 

In this context we could see a tension between sex-based interests and gender-based interests. If the requirements of equal opportunities demand that biological women as a group be afforded this attention and consideration, then a legislative scheme which greatly eases the ability of persons to move in and out of the legal category of women, with no alternative legal category of ‘biological women’ runs the risk of obscuring or even excluding intended beneficiaries under the principle of equality of opportunities. Whether those with a GRC are considered legally women for the purposes of their individual rights is one thing. It is another thing entirely for this to mean that the principle of equality of opportunity no longer covers biological women as a distinct disadvantaged group relevant to biological men. But if that is the case, then there is a serious tension between the reserved matter of equal opportunities and the effects of this new Bill for advancing the distinct sex-based interests of biological women in Scotland. 

One example, and the subject of the For Women Scotland case itself, is the representation of women in senior positions within civil society. Equality of opportunities can be concerned with advancing the interests of biological women compared to biological men and the interests of trans persons compared to cis-gender persons with no contradiction. But it cannot advance both the interests of biological women compared to biological men and ‘legal’ women compared to ‘legal’ men at the same time because here each category necessarily excludes the other. You can either interpret representation of women on company boards to mean representation of legal women or biological women, but it cannot mean both. The wider category of legal women in this context cuts against the conceptual purpose of equal opportunity which is to focus not on the general category but on the narrower cognate group.  

Similarly, in response to a failure to pay due regard to the needs of ethnic minorities as compared to the white majority, it is no answer to say that public officials are focusing on improving the lives of all members under their charge and surely that will also improve the lives of ethnic minorities. The duty attached to equality of opportunity is specifically envisaged to pierce beyond over-inclusive categories to address the interests of specific groups as compared to others. If equal opportunity is concerned with the sex-based interests of biological women as against biological men, then, notwithstanding the fact that this Bill will not alter anti-discrimination rights in any significant way, it will alter equal opportunity duties and could frustrate measures taken to address group-based disadvantage. 

If equal opportunities as it pertains to the protected characteristic of sex now focuses on addressing advantage gaps between legal women and legal men, it no longer focuses on advancing the interests of biological women as compared to biological men. There is already a duty to advance equality of opportunities between those protected by the characteristic of gender reassignment and cis-gender persons. The Equality Act arguably already contained this issue prior to the For Women Scotland case, given the wording of the Gender Recognition Act. Nevertheless, a change in the law to alter how one obtains a GRC in Scotland will create disparities between how these positive duties apply across the UK, given that the category of legal female will cover different groups. This is important; the public sector equality duty is not concerned with individual claimants. It’s concerned with group-wide disparities. So, overall numbers matter. A dramatic change in how a group is constituted in one jurisdiction makes nation-wide monitoring and implementation much harder. 

The upshot would be that measures designed to advance the representation of women in certain areas will be advancing different groups depending on whether or not the Scottish category of legal women is used. This broader category of legal women can have their interests advanced such that, for example, a company board could have ten seats set aside for legal women and there may be policy reasons why the government wishes such polices to be focused on biological women instead. 

A s.35 Order?

Section 35(1)(b) of the Scotland Act permits the Secretary of State to make an order precluding the Presiding Officer from submitting a Bill for Royal Assent where the Bill contains provisions: 

which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters.

Given the above discussion it seems clear that there are likely reasonable grounds for a belief that the Gender Recognition Reform Bill would contravene this. 

In order to make a s.35 order, there is no requirement that the Bill in question be outwith the competence of the Scottish Parliament. Indeed, the explanatory notes expressly state that a s.35 order permits the Secretary of State to “exercise a policy control or veto over what legislation is enacted by the Scottish Parliament, even although it is within its competence”. These orders are designed to cover modifications to the law which, although within competence (because they do not directly relate to reserved matters), nevertheless alter the law as it applies to reserved matters in a way that conflicts with or frustrates UK government policy. 

To make an order in this context:

  • The Gender Recognition Reform Bill must modify the law relating to the reserved matter of equal opportunities, and
  • The Secretary of State must have reasonable grounds to believe that this modification will adversely affect the operation of the law relating to equal opportunities. 

As explained above, introduction of a Self-ID system is not incompatible with anti-discrimination rights of biological women, but it could frustrate the equality of opportunity criterion by offering over-inclusive and insufficiently targeted support without the possibility of any alternatives, given the current legal framework. In particular, changing the legal mechanism for acquiring or altering one’s sex such that it becomes easier to do so makes it easier to gain the protection of two separate protected characteristics: sex and gender reassignment. This change can fairly be described as a modification of the law relating to the operation of the Equality Act in Scotland and so regulates a reserved matter. This is so, even if there has been no modification of the provisions of the Equality Act. It is a separate issue whether this would also modify the law in the rest of the UK as that depends upon whether Scottish Gender Recognition Certificates will be recognised outside of Scotland. 

Section 35 is designed to apply to Bills which are within the competence of the Scottish Parliament, but which nevertheless affect or modify the law relating to reserved matters so as to give rise to reasonable beliefs that there would be an adverse effect on the operation of the law relating to reserved matters. This means that the test for whether the law relating to a reserved matter has been modified must be more expansive than the test determining whether a Bill is outwith competence because it relates to a reserved matter. 

Put another way, if the Equality Act is generally reserved because it related directly to the reserved matter of equal opportunities, then any Bill of the Scottish Parliament would be outwith competence if it attempted to modify or repeal provisions of the Equality Act. In contrast, the Gender Recognition Act is almost certainly devolved and so the Scottish Parliament will be acting within competence if it enacts legislation altering or modifying it. But, if altering the Gender Recognition Act has the effect of changing the law relating to the Equality Act, then it may ‘modify the law relating to a reserved matter’ without being outwith competence. In that instance, s.35(1)(b) provides the option for the Secretary of State to intervene, notwithstanding the fact that the Bill would be within competence. 

If the Secretary of State did issue a s.35 order it would certainly be subject to judicial review. Given that the order must be made within four weeks of the Bill’s passing, any challenge will be based on whether there were reasonable grounds for concluding that the advancement of equal opportunities for biological women would be frustrated. Whether the UK government wishes to wade into this political quagmire, given both the gender politics and the devolution politics, is another question entirely. 

With thanks to Aileen McHarg, Audrey Ludwig, Alison Young and Mike Gordon for comments on previous drafts. 

Michael Foran is a Lecturer in Public Law at the University of Glasgow.

(Suggested citation: M. Foran, ‘Sex, Gender, and the Scotland Act’, U.K. Const. L. Blog (21st December 2022) (available at https://ukconstitutionallaw.org/))