RECLAIMING MOTION BY FOR WOMEN SCOTLAND LTD AGAINST THE SCOTTISH MINISTERS [2023] ScotCS CSIH_37 (01 November 2023)

RECLAIMING MOTION BY FOR WOMEN SCOTLAND LTD AGAINST THE SCOTTISH MINISTERS [2023] ScotCS CSIH_37 (01 November 2023)

A person with a Gender Recognition Certificate in the female gender comes within the definition of 'woman' for the purposes of section 11 of the Equality Act 2010, and the guidance issued in respect of the Gender Representation on Public Boards (Scotland) Act 2018 is lawful. The guidance does not conflate protected characteristics, and section 9(1) of the Gender Recognition Act 2004 applies unless context or specific statutory exception dictates otherwise.

Citation
[2023] ScotCS CSIH_37
Parties
Petitioner and Reclaimer: For Women Scotland Limited; Respondents: The Scottish Ministers
Jurisdiction
Scotland
Judgment Date
01 November 2023
Procedural Posture
Reclaiming Motion (appeal) / Final Judgment
Outcome
reclaiming motion refused
Legal Topics
Gender Recognition, Sex Discrimination, Protected Characteristics, Statutory Guidance, Positive Action
Public Law Equality Law Statutory Interpretation Gender Recognition Sex Discrimination Protected Characteristics Statutory Guidance Positive Action

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Parties

For Women Scotland Limited

Petitioner and Reclaimer

The Scottish Ministers

Respondents

Procedural Posture

Reclaiming Motion (appeal) / Final Judgment

Legal Issues

  1. 1 Whether revised statutory guidance under the Gender Representation on Public Boards (Scotland) Act 2018 lawfully includes holders of a Gender Recognition Certificate as 'women' for the purposes of the Equality Act 2010
  2. 2 Whether the guidance conflates protected characteristics of sex and gender reassignment
  3. 3 Whether section 9(1) of the Gender Recognition Act 2004 applies to the interpretation of 'woman' in the Equality Act 2010

Ratio Decidendi

A person with a Gender Recognition Certificate in the female gender comes within the definition of 'woman' for the purposes of section 11 of the Equality Act 2010, and the guidance issued in respect of the Gender Representation on Public Boards (Scotland) Act 2018 is lawful. The guidance does not conflate protected characteristics, and section 9(1) of the Gender Recognition Act 2004 applies unless context or specific statutory exception dictates otherwise.

Court Disposition

reclaiming motion refused

Orders

  • Guidance issued by the Scottish Ministers under the Gender Representation on Public Boards (Scotland) Act 2018 is lawful
  • No conflation of protected characteristics; persons with a GRC in the female gender are included as 'women' under section 11 Equality Act 2010