FOR Women Scotland (FWS) has lost an appeal in the Court of Session over the legal definition of a woman.
The group had challenged a ruling that transgender women with a Gender Recognition Certificate (GRC) can legally be defined as women.
In a written ruling, Lady Dorrian, the Lord Justice Clerk, set out that a person “with a GRC in the female gender” is defined as a woman under the Equality Act (EA) 2010.
The appeal was brought after the Gender Critical group lost an initial case on the definition of a woman in legislation that aims to ensure gender balance on public boards.
Lady Haldane has previously ruled, after FWS requested a second judicial review of the Gender Representation on Public Boards (Scotland), that the meaning of sex is “not limited to biological or birth sex” but includes those in possession of a GRC.
In a further written judgment, released on Wednesday, Dorrian ruled that guidance under the UK legislation the Gender Recognition Act 2004, “does not conflate” two separate protected characteristics.
“A person with a GRC in their acquired gender possesses the protected characteristic of gender reassignment for the purposes of section 7 EA,” Dorrian (below) wrote in her conclusion.
“Separately, for the purposes of section 11 they also possess the protected characteristic of sex according to the terms of their GRC.
“For the purposes of section 11, individuals without a GRC, whether they have the protected characteristic of gender reassignment or not, retain the sex in which they were born.”
Dorrian added that “no conflation” of protected characteristics is involved.
“A person with a GRC in the female gender comes within the definition of “woman” for the purposes of section 11 of the EA, and the guidance issued in respect of the 2018 Act is lawful,” she added.
“The reclaiming motion is refused.”
FWS said in a statement they were “hugely disappointed” in the ruling.
“We are obviously still analysing the decision and will be speaking to our legal team in due course to consider the possibility of a further challenge,” they added.
We previously told how the gender representation legislation intends to ensure that non-executive members on public boards are made up of at least 50% women.
Scottish ministers had argued that those who were living as a woman or had gone through the GRC process could be defined as a woman within the legislation.
FWS argued that this did not accord with the separate definitions of women and transgender women under the Equality Act 2010 and voiced concerns about implications for single-sex spaces.
The group lost the initial judicial review in 2021, but were successful on appeal. The Scottish Government then revised the legislation, which now states that the definition of “woman” is defined by the Equality Act 2010 and the Gender Recognition Act 2004.
This meant that transgender women with a GRC would be considered women under the bill.
This led to FWS calling for a second judicial review, where Haldane ruled in favour of the Scottish Government.
This led to another appeal, which Dorrian ruled against on Wednesday.
