Gender recognition and exceptions under the Equality Act 2010: FOI release

Information requested

Is it the Scottish Ministers’/ Scottish Government’s position that:

• A woman is an adult ‘female’?
• A trans person is ‘female’ if they have used a GRC to change their birth certificate?
• A trans person, who has legally changed sex on their birth certificate would not be covered by any single sex exception applied under the equality act by a rape crisis centre?
• If the above is the case, does the Scottish Government think that, if there can be a justification to exclude a trans person with GRC from single sex spaces then that justification does not exist where they have changed sex on their birth certificate?
• Do the single sex exemptions that the Minister says the Scottish Government supports apply to biological sex or “legal” sex? Or can it be either in the view of Scottish Government.

Please respond to include yes or no to the above.

Response

I have provided below our answers to each of your questions in turn.

A number of your requests relate to information about the interpretation and operation of the law under the Gender Recognition Act 2004 ("the 2004 Act") and the Equality Act 2010 ("the 2010 Act").

Your entitlement under FOISA is to the information we hold when we receive your request. However, since receipt of your request, a decision of the UK Supreme Court in the case For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent) (“the Supreme Court judgment”) has been issued which has relevance to your request. Accordingly this judgment is referred to in this response. This response does not constitute legal advice.

a. Is it the Scottish Ministers'/Scottish Government's position] that a woman is an adult ‘female’?

Given the Supreme Court's judgment, for the purposes of the Equality Act 2010 a woman is defined by biological sex. The Scottish Government has made clear that we accept this ruling. However, we are also clear that trans men and women are valued in our society. They have protections under the 2010 Act, and their rights must be upheld.

b. Is it the Scottish Ministers'/Scottish Government's position that] a trans person is ‘female’ if they have used a GRC to change their birth certificate?

The information you have requested on the effect of a full gender recognition certificate (“GRC”) is available from the 2004 Act which is published on the legislation.gov.uk website.

Section 9 of the 2004 Act provides:

"(1) Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

(2) Subsection (1) does not affect things done, or events occurring, before the certificate is issued; but it does operate for the interpretation of enactments passed, and instruments and other documents made, before the certificate is issued (as well as those passed or made afterwards).

(3) Subsection (1) is subject to provision made by this Act or any other enactment or any subordinate legislation."

The Supreme Court judgment in effect has held that the 2010 Act is not an enactment to which section 9(1) of the 2004 Act (set out above) applies in relation to its definitions of “woman”, “man” and “sex”. You may wish to refer to the Press Summary of the judgment provided by the Supreme Court. 

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the websites listed, then please contact me again and I will send you a paper copy.

c. Is it the Scottish Ministers'/Scottish Government's position that] a trans person, who has legally changed sex on their birth certificate would not be covered by any single sex exception applied under the equality act by a rape crisis centre?

The Supreme Court’s judgment discusses the separate and single-sex service provisions in the 2010 Act at paragraphs 211-221. The separate and single-sex services provisions are law which is a reserved matter for the UK Parliament and UK Government, and compliance with the provisions is, if necessary, enforced by the Equality and Human Rights Commission. The EHRC has undertaken to revise its guidance, in light of the Supreme Court judgment, on separate and single-sex services. The Scottish Government will require to consider the terms of the revised guidance and how (because it is reserved law) the EHRC and the UK Government interpret the provisions in light of the judgment.

d. If the above is the case, does the Scottish Government think that, if there can be a justification to exclude a trans person with GRC from single sex spaces then that justification does not exist where they have changed sex on their birth certificate?

Please see the answer at c. above.

e. Is it the Scottish Ministers’/Scottish Government’s position that] the single sex exemptions that the Minister says the Scottish Government supports apply to biological sex or “legal” sex? Or can it be either in the view of Scottish Government

Please see the answer at c. above.

Under section 25(1) of FOISA, we do not have to give you information which is already reasonably accessible to you. If, however, you do not have internet access to obtain this information from the websites listed, then please contact us again and I will send you a paper copy.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.