Sex based rights in the Court of Session

Is Lady Dorrian the judge who destroyed trans rights in Britain? When the EHRC explains the Lord Justice Clerk’s judgment, will trans women be expelled from all changing rooms, and never be able to pee again? No. And, does it matter if you have a GRC? Well, sometimes.

The appeal to the Inner House of the Court of Session of the Scottish Public Boards decision is the most authoritative judgment yet on trans rights and the meaning of “sex”. It is wrong in important aspects, but it is still strongly persuasive on English courts. Scotland has a different legal system, but statutes covering both Scotland and England should be interpreted the same in both countries.

Joanna Cherry QC, MP claimed the case said, “Sex is not interchangeable with gender. There is a protected characteristic of sex, but not one of gender. Sex means male or female in law, based on biological sex… The word ‘women’ in the Equality Act does not include males who self-identify as women.” And I was terrified. However the same court found that a trans woman without a GRC could answer the census question that her sex was female, even though giving a false answer in the census is a criminal offence.

I discussed the initial census decision here. That’s the Outer House, a single judge, roughly equivalent to the High Court in England. On appeal, Lady Dorrian distinguished “matters of status and rights”, such as whether a trans woman without a GRC could benefit from the positive discrimination for women on Scottish public boards, from other issues.

I call it the Scottish Public Boards case because I refuse to use the name the tiny hate-group Four Transphobes Scotland has chosen for itself.

So, consider the two cases together, and how they affect Clare, a trans woman who does not have a gender recognition certificate. Clare can answer the census question saying her sex is female, but she cannot be treated as a woman for the purposes of benefiting from the Gender Representation on Public Boards (Scotland) Act 2018. These are the questions the Inner House had to consider, and the answers it gave. The cases have wider implications, but are only binding even on Scottish courts on these particular matters.

If Clare wants to marry, she is treated as a man. This means she can marry a woman in church, as it is not a same-sex marriage. The rules on allowing churches to refuse to marry same sex couples do not apply to Clare marrying a cis woman.

If Clare suffers discrimination because she is trans, she has a right to claim under the Equality Act. But if an employer recruited a cis man instead of her, she could not argue this was sex discrimination. That is a matter of rights, but it was the general understanding before the appeal court decision. While she has the protected characteristic of sex under the Equality Act, it protects her if she suffers discrimination in favour of cis women, not cis men. If she was better qualified than the man, she could argue this was gender reassignment discrimination.

However, just as before the Scottish Public Boards decision, Clare can use women’s loos, changing rooms, and probably domestic violence shelters if she needs them. The EHRC Code of Practice says so.

The Scottish Public Boards case concerns what matters have been devolved to the Scottish parliament. Equality law is reserved to Westminster, but Holyrood negotiated an amendment to the Scotland Act specifically to favour women recruited to Scottish public boards. So the case concerns the specific wording of that amendment. The appeal court agreed with the original judge that the case was not about trans rights, but the legislative competence of the Scottish parliament.

There are some sentences from the public boards decision which anti-trans campaigners could quote, to make themselves feel good. For example, para 36, “Provisions in favour of women, in this context, by definition exclude those who are biologically male”. I consider that is untrue. Provisions in favour of women would include trans women with a GRC. But “this context” only refers to the right to raise a discrimination case or join a public board, not the right to use a particular changing room. We are not a “papers please” society, where people should be treated with suspicion when they go to pee.

The public boards appeal decision is here, and the census appeal decision is here.