Scottish Judge Rules ‘Sex’ Is Not Limited to Biological or Birth Sex

Members of the public take part in a women’s rights demo against the Scottish government’s decision to allow self-declaration of sex in the 2022 census, in Edinburgh, on Sept. 2, 2021. (Jeff J Mitchell/Getty Images)

A Scottish judge has certified that gender and not birth sex is what carries weight in law, a ruling which could impact upcoming radical gender reforms, with the country heading towards a system that will allow anyone to “self-identify” as a woman.

The campaign group For Women Scotland had taken the Scottish government to court in a case related to statutory guidance produced by Scottish ministers around representation on public boards.

On Tuesday, For Women Scotland lost the case at the Court of Session, Scotland’s highest civil court, with a judge ruling that transgender people with a Gender Recognition Certificate (GRC) can legally be defined as women when it comes to legislation (pdf).

For Women Scotland said that this could have major implications for the Gender Recognition Reform (Scotland) Bill, which will allow individuals to change their sex by simply making a statutory declaration.

Equality Act

The group, which works to “protect and strengthen women and children’s rights” contended that the definition of “woman” in the 2010 Equality Act is to be taken as “biological woman” and not someone who identifies as female via a GRC issued under the Gender Recognition Act 2004.

However, handing down her decision, the judge, Lady Haldane, said that “at its heart, this petition is concerned with whether or not, as a matter of law, the definition of ‘woman’ in the 2010 Act includes those persons holding a GRC stating that their acquired gender, and thus their sex, is female.”

“I conclude that in this context, which is the meaning of sex for the purposes of the 2010 Act, ‘sex’ is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex,” she said.

“Such a conclusion does not offend against, or give rise to any conflict with, legislation where it is clear that ‘sex’ means biological sex.” added Haldane.

The Gender Recognition Reform (Scotland) Bill is set to be passed later this month.

Under the new plans, the age people can apply to the gender recognition process will be reduced from 18 to 16. Furthermore, the time period applicants need to live in the acquired gender will be reduced from two years to three months, with the requirement for a medical diagnosis and evidence removed.

There will be no requirement under the bill for an applicant to undergo surgery or hormone therapy and it will also simplify the process to change sex on birth certificates.

United Nations Special Rapporteur on violence against women, its causes and consequences, Reem Alsalem (L) and U.N. Human Rights Officer Orlagh McCann (R) address a press conference in Ankara, Turkey, on July 27, 2022. (Aden Altan/AFP via Getty Images)

‘Not a Simple Administrative Change’

Critics of the legalisation say that a self-identification system could be exploited, or male prisoners may abuse the system. The proposals have encountered recent criticism from the UK government and the Equality and Human Rights Commission (EHRC), which in October called for more consultation with all those affected by proposed changes.

In November the U.N. Special Rapporteur on violence against women and girls, Reem Alsalem, raised grave concerns it will open up women’s services and private spaces to abuse (pdf).

In a statement, For Women Scotland said that at “first reading this seems disastrous for women who are seemingly now no longer recognised in law as a sex-class, with distinct requirements of our own.”

“We are obviously still analysing the decision and will consider if any further legal action is appropriate in due course,” it added.

For Women Scotland spokeswoman Susan Smith told The Epoch Times that the decision means that there are clear ramifications for the bill currently before Parliament and that she hopes some time will be allowed for MSPs to mull over the ruling and its consequences.

“We now know that this is actually not a simple administrative change as they [the SNP] have been claiming. It fundamentally changes how a person is treated in law according to this ruling,” said Smith.

“It does mean that all the things the Scottish government dismissed as untrue and scaremongering from people like the EHRC were right,” she said, adding that she believes that it does potentially contravene the Equality Act.

“We need Westminster to step up and go back through it and sort it out, as they are in charge of the Equality Act,” said Smith.

‘Profound Implications’

Sex Matters, which was co-founded by Maya Forstater, whose case established a binding legal precedent that “gender-critical beliefs were in principle protected by the Equality Act,” wrote on Twitter, “Scottish court rules that sex is about paperwork, not biology - making our campaign to clarify the meaning of sex in the Equality Act 2010 even more pressing.”

“The ruling has profound implications for the impact of legislation being debated in Scotland,” it added.

Scottish Trans Alliance, an organisation that works for gender identity and gender reassignment equality and rights in Scotland said on Twitter that the “current application process for a Gender Recognition Certificate (which can be used to change the sex on a birth certificate) is broken and unfair.”

“This is precisely why many countries around the world have moved to simple, administrative model of self-declaration. Trans people know ourselves better than anyone else, and many leading human rights bodies agree that we should be the ones to decide how we want to be recognised,” it added.

A Scottish government spokesman said, “We are pleased to note the outcome of this challenge.”

PA media contributed to this report.