PETITION OF FOR WOMEN SCOTLAND LTD FOR JUDICIAL REVIEW [2022] ScotCS CSOH_90 (13 December 2022)

PETITION OF FOR WOMEN SCOTLAND LTD FOR JUDICIAL REVIEW [2022] ScotCS CSOH_90 (13 December 2022)

The revised statutory guidance lawfully reflects the effect of section 9(1) of the Gender Recognition Act 2004, which provides that a person with a full Gender Recognition Certificate is to be treated as their acquired gender (and thus sex) for all legal purposes, including under the Equality Act 2010. There is no basis for reading 'woman' in the 2010 Act as limited to biological women, nor for finding implied repeal or disapplication of section 9(1) by the 2010 Act. The guidance is not unlawful.

Citation
[2022] ScotCS CSOH_90
Parties
Petitioner: For Women Scotland Limited; Respondent: Scottish Ministers; First Interested Party: Lord Advocate; Fifth Interested Party: Equality and Human Rights Commission
Jurisdiction
Scotland
Judgment Date
13 December 2022
Procedural Posture
Judicial Review / Outer House, Court of Session, Opinion
Outcome
Petition refused
Legal Topics
Statutory Interpretation, Gender Recognition, Protected Characteristics, Judicial Review, Sex Discrimination
Public Law Equality Law Administrative Law Statutory Interpretation Gender Recognition Protected Characteristics Judicial Review Sex Discrimination

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Parties

For Women Scotland Limited

Petitioner

Scottish Ministers

Respondent

Lord Advocate

First Interested Party

Equality and Human Rights Commission

Fifth Interested Party

Procedural Posture

Judicial Review / Outer House, Court of Session, Opinion

Legal Issues

  1. 1 Whether the revised statutory guidance under section 7 of the Gender Representation on Public Boards (Scotland) Act 2018 lawfully includes persons with a Gender Recognition Certificate within the definition of 'woman' for the purposes of the Equality Act 2010.
  2. 2 Whether section 9(1) of the Gender Recognition Act 2004 is impliedly repealed or disapplied by the Equality Act 2010.

Ratio Decidendi

The revised statutory guidance lawfully reflects the effect of section 9(1) of the Gender Recognition Act 2004, which provides that a person with a full Gender Recognition Certificate is to be treated as their acquired gender (and thus sex) for all legal purposes, including under the Equality Act 2010. There is no basis for reading 'woman' in the 2010 Act as limited to biological women, nor for finding implied repeal or disapplication of section 9(1) by the 2010 Act. The guidance is not unlawful.

Court Disposition

Petition refused

Orders

  • The prayer of the petition is refused.
  • No reduction of the revised statutory guidance.