Lecture Notes: For Women Scotland Ltd v The Scottish Ministers

Context

• Case Title: For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent)
• Court: UK Supreme Court
• Judgment Date: 16 April 2025
• Appeal Date: Heard on 26 and 27 November 2024

Key Figures

• Judges: Lord Reed, Lord Hodge, Lord Lloyd-Jones, Lady Rose, Lady Simler
• Appellant Counsel: Aidan O’Neill KC, Spencer Keen
• Respondent Counsel: Ruth Crawford KC, Lesley Irvine
• Interveners: Sex Matters, Scottish Lesbians, The Lesbian Project, LGB Alliance, Equality and Human Rights Commission, Amnesty International UK

Core Issue

• Subject: Interpretation of the Equality Act 2010 (EA 2010) and its implications for defining sex and gender in legal contexts.
• Impact: Affects protections against discrimination for women and the trans community.

Structure of Judgment

1. Terminology and Interpretation: Discusses the role of terminology and approaches to statutory interpretation.
2. GRA 2004 and EA 2010 Interaction: Examines how the Gender Recognition Act 2004 (GRA 2004) interacts with the EA 2010.
3. Court's Interpretation Approach: Focuses on the statutory words used by Parliament in the EA 2010.
4. Statutory Context and Legal Background: Reviews the historical and legislative context affecting the case.

Key Arguments and Legal Reasoning

• Statutory Interpretation: Emphasizes interpreting the words "sex," "man," and "woman" based on their ordinary meaning and context within the EA 2010.
• Biological vs. Certificated Sex: Considers whether legal definitions should include certificated genders from GRC holders under GRA 2004.
• Legal Consistency: Evaluates the impact of interpretation on legal clarity and consistency across various statutory provisions.

Important Legal Provisions

• Equality Act 2010: Discrimination protections and definitions of "sex" and "gender reassignment."
• Gender Recognition Act 2004: Provides for legal recognition of gender reassignment and its implications for legal sex.
• Scottish Parliament Legislation: Examines the legislative competence under the Scotland Act 1998 for defining gender terms in Scottish statutes.

Court's Conclusion

• Biological Sex Interpretation: The court concludes that "woman" in the EA 2010 refers to biological sex, not legal sex as defined by a GRC.
• Impact on Trans Individuals: Acknowledges protections for trans individuals under gender reassignment provisions but distinguishes them from sex-based rights.
• Guidance Invalidity: Declares the Scottish Government's guidance incorrect regarding counting trans women with GRCs as women for statutory purposes.

Implications for Future Cases

• Gender Representation Objective: Affirms biological women count towards gender representation goals in public boards.
• Legal Clarity: Emphasizes the need for consistent statutory interpretation for the effective application of equality laws.