FOR WOMEN SCOTLAND (AGAIN)

In my last blog post in August of last year I made these observations (and feel free to skip or skim the paragraphs which follow in bold if you don’t need them repeated):

A person does not contravene section 29 [direct discrimination], so far as relating to gender reassignment discrimination, only because of anything done in relation to a matter within sub-paragraph (2) if the conduct in question is a proportionate means of achieving a legitimate aim.

(2) The matters are—

…

(c) the provision of a service only to persons of one sex.

Before the court’s clear decision in For Women Scotland, this was an obscure and highly controversial provision. Now, it isn’t.

Firstly, for the purposes of single sex female services, the provision must apply to biological females who are undergoing gender reassignment. If a single sex service were to exclude a so-called “transman” from its female services on the grounds, say, that her beard and deep voice were “triggering” for rape victims, that is clearly an exclusion made because of her gender reassignment.

As such, it clearly requires justification under paragraph 28 and, if justification cannot be established, it will equally clearly be direct discrimination against the protected characteristic of gender reassignment.

Secondly, it may be arguable that a biological male in possession of a Gender Recognition Certificate (GRC) under the Gender Reform Act of 2004 (GRA) falls to be regarded as acquiring some form of legal fiction which allows him to be classed as a “biological female” for the purposes of the Equality Act.

In Fair Play for Women Ltd v The Registrar General for Scotland and The Scottish Ministers [2022] CSIH 7, the highest civil court in Scotland said this:

There are some contexts in which a rigid definition based on biological sex must be adopted.

And this:

Some of these limitations have been carried over to apply even where a person has successfully obtained a GRC under the GRA….The point which these examples all have in common is that they concern status or important rights.             

As I’ve noted elsewhere, it’s a pity that the court didn’t say more about where exactly a GRC fits into the definition of “biological female” for the purposes of the “status” and “important rights” conferred by the Equality Act.

My own interpretation of these statements is that a biological male with a GRC remains a biological male for the purposes of single sex provision and that there is no need to invoke paragraph 28 of Schedule 3 to exclude him, along with all biological males, from single sex female services.

If I’m wrong about that, and if paragraph 28 does require to be invoked in order to exclude a biological male with a GRC from single sex female services, then that will in my view have serious consequences for the Gender Recognition Reform (Scotland) Bill currently making its way through the Scottish Parliament. I’ll deal with that in detail in the last of the forthcoming articles.

(Spoiler: if having a GRC does turn a biological male into a “biological female” for the purposes of the Equality Act, then it is simply absurd for the Scottish Government to claim, as they do, that the Bill’s provisions allowing biological males to obtain a GRC by essentially self-identifying as female do not intrude into the reserved area of the Equality Act. Clearly, they do, and as such the Act, if passed, will be struck down by the courts as outwith the competence of the Scottish Parliament.)

The decision of the Inner House today means that I was wrong — for now at least — about a biological male with a GRC remaining male for the purposes of the right to access female single sex services under the Equality Act. As such, and as I noted in the last paragraph above, the Scottish Government’s Gender Recognition Reform (Scotland) Act, which purports to allow a GRC to be obtained by self-ID must by definition intrude into the reserved area of the Equality Act. It is therefore now inevitable in my opinion that the Act will be struck down when the court gives its eagerly awaited decision on the application of the UK Government to have that happen.

Not for the first time, we should all be grateful to For Women Scotland for bringing the action that will cement this result.

The decision also means that my observation about the application of paragraph 28 above moves from hypothetical to actual. The Inner House has today decided that — for now at least — a biological male in possession of a GRC is to be regarded as being of the female sex for the purposes of the Equality Act. All other trans-identified males remain male. This means of course that, as the bulk of my last post was concerned with explaining, the current “trans-inclusive” policies of the Scottish Government are clearly unlawful as applied to female single sex services, and always have been, because they regularly force biological females to share female single sex services with biological males, whether those males have a GRC or not. (And of course only the tiniest minority of trans-identified males do have a GRC.)

Single sex female services must now take urgent advice on how to counter these unlawful Scottish Government policies, and ensure that all trans-identified males without a GRC are excluded without exception from their services. They should also make use of paragraph 28 to exclude biological males with GRCs where excluding them is a proportionate means of achieving a legitimate aim. As explained above, these biological males are not being excluded because of their sex, which the Inner House tells us is now female. Rather, they are being excluded on the ground of gender reassignment because, although they are (so we are told) now of the female sex, it is permissible under paragraph 28 to exclude them on the legitimate and proportionate grounds that, for example, their obviously male bodies, deep voices, hairy chins and so on are triggering to female rape victims.

In other words, it is the very fact of their gender reassignment from male to (so we are told) female that makes excluding them legitimate and proportionate in terms of paragraph 28.

Of course, all of this has the strongest whiff of absurdity about it, as the court itself recognised today when commenting that the sorting out of the whole awful mess must be a matter for society as a whole and not just for the interpretive function of the courts.

I disagree with the judges’ decision today but I genuinely sympathise with the impossible position in which they, and the courts in general, now find themselves. Laws have been passed, and judicial decisions made, on the basis of the most absurd ideas, which have no basis whatsoever in reality, and now the courts, which really have only very limited and highly compartmentalised expertise, are being asked to reconcile reality with the absurd fantasies which have been given legal force.

It is as if the Flat Earthers somehow got their doctrines passed into law and the courts then had to reconcile that law with all the other laws — on air traffic control, shipping navigation etc — which are needed to regulate reality. However expertly they applied their very narrow expertise to the task, and with however much sophistry and appeal to authority they “resolved” it, planes and ships would still be crashing into each other out there in the real world, as well as much other mayhem.

So it is with a law that says human beings can change sex.

We all need to start again from scratch, and we need to start with the patent absurdity of the Gender Recognition Act 2004.