Millions of pounds are being raised and spent, attacking trans rights, and public bodies that have a reasonable view of trans rights, in the courts, forcing those public bodies to defend themselves. The aim is to make defending trans rights prohibitive, and to change the language, so that the word “woman” does not include trans women.
Arcane law having almost no effect on trans people in public life is attacked. That was the case in “For Women Scotland Limited” v Lord Advocate. The anti-trans hate group, with its disingenuous name, failed in its attempt to embarrass the Scottish government over the Gender Representation on Public Boards (Scotland) Act 2018. The judge, Lady Wise, in the Outer House of the Court of Session, said “This case does not form part of the policy debate about transgender rights, a highly contentious policy issue to which this decision cannot properly contribute”. The only legal challenge concerned the powers of the Scottish Parliament, and the interpretation of the power to make that Act itself.
Nor would the case, if it had been successful, have been likely to affect the life of a single trans woman. The 2018 Act provides that where a public board in Scotland has more men than women, is recruiting new members, and interviews candidates for membership who are otherwise equally qualified, a woman candidate should be preferred to a man candidate. For the purposes of that Act, “woman” includes a trans woman who is “living as a woman” and seeks to “become female”.
I don’t know how many positions on public boards there are, or how often candidates are equally qualified. Where candidates are equally qualified, interviewers can generally justify their choice by some reason to prefer one or the other, so perhaps the Act has never resulted in a choice of candidate being altered. Nevertheless, the hate group still wanted to challenge the rule, so that trans men would be treated as women under the Act, and trans women treated as men.
The Scottish Government negotiated an extension to its powers, and specifically requested power to make this Act. The Westminster Parliament duly amended the Scotland Act 1998 to give this specific power. Power to make law on “Equal Opportunities” and discrimination is reserved to Westminster, but there is now a specific exception in Schedule 5 of the Scotland Act to permit this specific Act.
The question before the court was then what was the interpretation of the Scotland Act, which refers to “the inclusion of persons with protected characteristics” on boards. Trans people have a “protected characteristic”.
If interview panels might rarely choose a woman over a man because they found them equally qualified, how much more rare would it be for them to find a trans person equally qualified with a cis person? Trans women “living as a woman” are about 0.1% of the female population.
The Equality Network intervened for trans rights, supporting the Scottish government and trans women. The judge found their submissions “detailed and helpful”. They argued that the concepts of “sex” and “gender” and the instances of discrimination relating to them were so interrelated that they could not be kept entirely separate. Many claims for cis women focus on socially constructed gender roles, such as responsibility for childcare. The Scottish Trans Alliance, a project within the Network, did the work. Here is their press release. They were supported by the Scottish Just Law Centre.
The Equality Network is a major campaign group for LGBT rights in Scotland. It won two “Campaign of the Year” awards for its campaign for equal marriage, the first in the UK. I take heart from the support of lesbian and gay allies against the bitter, but well-funded, hate groups.
The advocate for the Scottish Government stated that government policy was that transgender women are to be treated as non-transgender women unless to do so would be prohibited by law. She said that that reflected the recommendations of the UN Convention on the Elimination of All Forms of Discrimination against Women. “Trans women are women.” Technically, a “policy” needs an Equality Impact Assessment, so this is not formally a policy, just the attitude of the Scottish Ministers.
When the hate group claimed to be supporting the interests of trans men, the judge said “such people are visually and socially male and so not operating as women”. They would not want to be treated as women, even when it was a career advantage.
This is not a binding precedent, even in Scotland, but the judge pointed out that EU law acknowledges that trans people are to be included as being of the sex to which we intend to reassign- even before reassignment. This shows the haters are unlikely to succeed. In the European Convention on Human Rights, “transgender women will for practical purposes be indistinguishable from non-transgender women”.
There may be an appeal, to the Inner House of the Court of Session then to the Supreme Court. The haters’ pockets seem limitless. I hope they will pay the Scottish Government’s court expenses, but this is not yet decided. Still, in this case so far, the wealthy haters have lost. It’s a victory for all queer people.
The judgment is available here.