For Women Scotland v Scottish Ministers Judgment

Transcript

Emma 00:08

Welcome to Doyle Clayton Podcasts, DC Talks, a series of podcasts where we take a deeper dive into legal topics or HR issues. I'm Emma O'Connor, a partner in the employment team and head of HR training. I'm joined in this podcast by Peter Daly, a partner in the employment team who was involved in the recent For Women Scotland and Scottish Ministers case. Peter, thank you so much for joining me.

Peter 00:33

Thanks for having me.

Emma 00:34

Peter, can you just start by explaining a little bit about your involvement in the case?

Peter 00:38

So we were acting for three separate organisations who jointly provided an intervention to the Supreme Court. The organisations were Scottish Lesbians, the Lesbian Project and LGB Alliance. Their submission was about the importance of this case to lesbians, and in particular, the case was determining what the meaning of the words woman, man and sex were under the Act. And for lesbians, who are emphatically same-sex attracted women, all of their legal rights under the Equality Act were dependent upon a biological interpretation of the words woman and sex in the Act.

Emma 01:23

So there's been lots of press coverage and lots of reports about the case. And I think it would be helpful just to take a step back and actually discuss what the background to this case was and who For Women Scotland were.

Peter 01:35

Yeah. So For Women Scotland are a feminist campaigning organisation up in Scotland who had become engaged on issues around sex and gender and what they thought as being a move towards defining women other than by biology, which has, in their view, incredibly detrimental effects. And in Scotland in particular, this was very live because the Scottish government were bringing in the Gender Recognition Reform Bill, which would have effectively enabled self-ID in Scotland, and this was in about 2017, 2018, and carried on for a while afterwards. For Women Scotland are three incredible women who I had the pleasure of meeting, who they are Marion Miller, Trina Budge, and Susan Smith, who in their own time started campaigning on these issues and informing themselves about these issues. And they campaigned around the GRR Bill, the Gender Recognition Reform Bill, but they also saw this piece of legislation come up, which formed the basis of this case. And that legislation was brought in by the Scottish Government with the intention of ensuring that in the appointment of people to public boards by the government, there would be a guarantee of 50% female appointments. However, when the guidance for the legislation was brought forward, For Women Scotland noticed that the definition of women was not a biological definition, but initially, at least, was purely on the basis of self-ID, anybody who identifies as a woman. Forewoman Scotland brought a judicial review against that and was successful. The Scottish Government then went away and came back and said, OK, fine, it's not on a self-ID basis. It's on the basis of a gender recognition certificate. And that was the Scottish Government position all the way through up to the Supreme Court. So For Women Scotland launched a second case about the updated guidance on certification. They lost in the outer house in Scotland. They lost in the inner house in Scotland and then appealed it to the Supreme Court.

Emma 03:41

So what is a gender recognition certificate?

Peter 03:45

It's a document issued by the Government under the Gender Recognition Act 2004, which... In order to get a certificate, one must jump through some legislative hoops. So you have to have been living in the opposite gender for two years. You need to pay a £5 fee. You need to have a formal diagnosis of gender dysphoria and you need a supporting letter from two practitioners. You then submit your application to what's called the gender recognition panel and they will assess it, make sure that you've met the requirements and will then issue you with a gender recognition certificate. Using that certificate, you can then go back and change the sex on your birth certificate and do various other things. And about somewhere north of 95% of all applicants are successful in being granted it. There are about 8,000... roughly, gender recognition certificates that have been issued. But it's important to note that this case was only ever about people with gender recognition certificates. It was never the case, and it was made explicitly clear in the second appeal in the inner house that a person without a gender recognition certificate, regardless of how they identify, is, for the purposes of the Equality Act, their biological sex. This case was only about the biological sex of people with gender recognition certificates.

Emma 05:12

Thank you. I think that's really helpful to clear up that confusion. So we get to the Supreme Court, and obviously we have an 80-page judgment. What decision did the Supreme Court come to?

Peter 05:23

Well, in a nutshell, that in the Equality Act, sex means biological sex, full stop. But importantly, this was not any kind of departure. This is what the law has always been and I think on one view, the judgment is a kind of fairly measured and sensible. But on any view, it's a measured and sensible judgment. But on one view, it's simply the Supreme Court saying the law is what it is and what it has always been. The reason why I think it's had such effect and has got such coverage is because the law has been misapplied so extensively over the past 10 years or more. A large number of people walking around with it have very significant misapprehension as to what the law was.

Emma 06:13

I think there's also been some confusion. I think you're absolutely right. This judgment didn't change the law. The law has been what the law has been. But I think the other confusion has been there's some suggestion that this is somehow up for negotiation, that employers don't have to comply with this judgment. What's your view on that?

Peter 06:33

You don't really get much more of a helpful guidance, if you like, than the Supreme Court's issuing an 88-page judgment, reaffirming what the law has always been. One of the reasons why it's an 88-page judgment is because there's such a granular approach line by line to the Equality Act in examining what are the protections determined for sex, men, women, what would be the implications if the meaning of those words was certificated sex, i.e. not a biological approach, and explaining why the implications of having a certificated sex approach would create a complete confusion and a nonsense which would defeat the original intentions of the act. Looking in particular at our clients, the lesbian interveners, the implications of sex being on a certificated basis would be very, very severe because it would mean that no lesbian group or association would be able to set up or hold events and be able to say, we do not allow males in our presence. And if a male attended who asserted a sexual attraction towards women and a gender identity of being a woman, him or herself, there would be no lawful basis to exclude them. And this is something that's really come up a lot for lesbian organisations and lesbian businesses over the past three, four, five years. On occasions where, for example, lesbian dating apps or lesbian events have been set up, on the basis of being explicitly female only, they've attracted huge amounts of vitriol, they've been shut down, they've been kicked out of venues. This is a genuine, very, very substantial thing. And what makes it shocking as well is that it's often been done by the antagonists on the basis that this is not just a lawful thing to do, but a morally right thing to do. So having this reassertion by the apex court in the UK of there being, firstly, meaningful protections for same-sex attractive people, and secondly, explaining what they are and making it explicit as to how they work and why they work and the purpose of that legislation is incredibly helpful.

Emma 08:51

So if the definition of man and woman for the purposes of the Equality Act has not changed, This judgment hasn't changed that. What, in your view, do you think has created this confusion and misapplying, if you like, the law in things like employment policies or decisions that employers have made with regards to staff who identify differently to their biological sex?

Peter 09:15

I think that there are several factors that have caused this. I mean, the overriding factor is that a load of nonsense has been spoken for a very long time. There's a lot of policies that have been put about and templates and organizations that are fed into policies who have simply and straightforwardly misled the law, but they've done so from an apparent position of authority. So, you know, your average HR director, or HR business partner is not going to necessarily know the ins and outs and detail of various regulations and the backgrounds of the Equality Act and where pregnancy discrimination comes from and jurisprudence and all of these issues. They're going to look for a reasonably authoritative source to advise them to put in place policies. And where, for example, you've got organisations like Stonewall who used to be an extremely reputable organization who have previously achieved incredible things and who are very well connected in politics and in business they are a plausible authoritative or they were a plausible and authoritative source of information when they go around and say you know don't look at sex look at gender don't look at biology, look at identity, people will and did take them seriously. And it's perfectly rational and you can see why people would. When you have things like the Workplace Equality Index, which is effectively a league table of businesses and organisations who have put in place pro-LGBTQ plus policies, You go down that league table and you look at the names on it and you're talking about government departments, you're talking about the biggest law firms in the country, you're talking about the biggest industry players in the country. So you can look at that list and say, well, look, if these people are doing this, we're going to do it because clearly they're not going to be putting in place unlawful and there have been some lawyers who've been saying for quite some time, what are you doing? This is utterly bonkers, but haven't been listened to. And I think what the Supreme Court has effectively said is that, as has been said a few times now, Stonewall law is not the law. So I think that's where it's come from and that's what's happened from it. There's an additional element to it as well, which is that we all want society to be better. We don't just go to work to earn a salary. We want to leave the world in a better place in which we find it. And I think there's been incredibly effective lobbying across the piece globally on this idea that the next big civil rights movement is trans equality. And the problem with that is that there is a conflict of rights, and there are rights that women hold in particular, and that lesbians hold, which are impinged by a sequence of policies which removes the relevance of biology to human sex. And I think that while it would be possible to look at the effort of the For Women Scotland Judgment and think, well, how does this impact our workplace policies? What will be slightly harder will be to get into a mindset where we have to actually confront and look at this conflict of rights while ensuring that we don't go too far back the other way and that trans people's rights also aren't undermined. Because again, the For Women Scotland judgment makes it very clear that there are real substantive protections in law for trans people.

Emma 12:46

And if you just explain what those protections are under the Equality Act.

Peter 12:49

Sure. There's a protected characteristic of gender reassignment, which is Section 7 of the Act, and that to protect a characteristic in the same way that sex is. And it's for anybody who has undergone, is proposing to undergo, or is undergoing a process of changing the physiological or other characteristics related to their sex. The key thing is proposing to undergoing or has undergone. And with any other protected characteristic under the Act, people with that protected characteristic of gender reassignment, regardless of whether or not they've got a gender recognition certificate, are protected from direct and indirect discrimination, victimisation and harassment.

Emma 13:32

So we've got the judgment. There's been lots of talk, and obviously social media is a wonderful echo chamber, whichever side of the debate that you're on. But let's create some sort of practical common sense discussion here around what practical things can employers do, taking into consideration this judgment.

Peter 13:50

You've got to go back through your policies. You've got to work out who wrote them and based on what sources. So I'm sure we'll come on to it. Toilets is a particular thing. But this also impacts on things like maternity policy. It impacts on changing rooms, not just toilets. If you can think of any situation or scenario in which a person's sex is relevant, there will be a policy for it. And if you're not careful, you may well have taken on board just wrong advice and have put that in place. So the first thing to do is to read your policies.

Emma 14:28

Yeah, and really look at the language that's been used within those policies. So if we're referring to gender as a protected character, which it isn't under the Equality Act, so that's obviously one of the kind of the red flags that employers should be looking at. What should employers be doing about bathrooms?

Peter 14:46

Well, I think toilets are only, they're not actually dealt with in great detail in For Women Scotland in the judgment. But in practical terms, it's probably where it bites most in the employment sphere. I mean, the straightforward and simple answer is you have to have segregated toilets by sex, and that has to be by biological sex. It doesn't matter what gender identity a person has. It doesn't matter what gender recognition certificate a person has. So that's easy. But We don't have workplaces or offices or whatever it may be where we can always completely reconfigure the physical layout of the building at a moment's notice. The wrong policies have been in place for quite some time. And so some businesses are going to say, hang on a minute. Okay, fine. I understand biological sex is the determinant, but actually the loos policy on the second floor of our building. They are what they are. We can't change them around. This causes a problem. So this is a long way round of saying it's going to be case by case. Case by case, actually, if you've got that in your policy, that's also a problem. But I'll come back to that. You're just going to have to look at the practical implications on the floor, literally, of the layout of your building. and work out what to do next.

Emma 16:11

And we've had some interim guidance, haven't we, from the Equality and Human Rights Commission, and they've been very clear on that point as well. It is compulsory too, is the language that they've used. And their guidance is quite interesting, isn't it, Peter, because it's not really guidance.

Peter 16:25

It's not guidance, no. And the word guidance has been attached to it. It's been picked up by the press and run as interim guidance. It's not guidance. It's an update. Guidance is usually issued by the EHRC to give examples of things that you might do or could do. This is a very short, very straightforward statement of the law. It's not optional. But yes, you're right. It's been extremely clear and extremely helpful. It's interesting that one of the reactions of all women in Scotland, which is, I suppose, in one way, a rational reaction to being told that you got the law wrong for a very long time, is for a lot of people to say, well, I don't understand. That's not clear at all. The judgment's very clear. And so the reaction was, well, we need to see some guidance. We need some explanation. But you don't. What more do you need?

Emma 17:16

What more do you need? You've got 88 pages from the Supreme Court. You know, what more... guidance, affirmation do you need as to what you need to do?

Peter 17:23

This is precisely right. But if you did need more, then you've got this interim update from the Equality and Human Rights Commission, which is admirably clear and to the point, and I don't think leaves any room for misunderstanding.

Emma 17:36

So what happens now with that update? Because obviously it is only interim. What do you think might you know when might we see some sort of formal changes being made

Peter 17:46

Well there's a code of practice which I think is is for service providers rather than employers so the uh and that code of practice is I think due before the summer and it's important to realize that the the the requirements under the equality act for single sex spaces are come in different sections of the act whether or not you're talking about employment and workplaces Or if you're talking about services, so shops, theatres, swimming pools, that kind of thing. And the legislative regime is slightly different for those two things, but it doesn't really matter that it's still a question of biological sex. The regime under workplaces, which I think is what we're talking about, It is contained in legislation, secondary legislation, which is the Workplace Health, Safety and Welfare Regulations 1992. And they require that for sanitary facilities, which is legislation speak for toilets and changing rooms and washing facilities, separate facilities have to be given for men and for women. In the case of toilets, they have to be separate sex. But if you've got a single floor to ceiling lockable room, which can only be used by one person at a time and isn't a cubicle, is a separate room and has a sink and a loo behind the door, which we'll call unisex loos, that is acceptable. And many businesses do have those, and increasingly you see in new builds, like that's the norm in any event. Unisex loos is a term which can sometimes be confused between, I mean, I've seen some reference to unisex loos, meaning men or women can use them at the same time, but that's not correct. You have to picture yourself, a way of thinking about it is your average loo on a plane is a unisex loo. Only one person uses it at a time, but it could be a male or it could be a female. And that's fine. So you've got those, you're home and hosed.

Emma 19:50

I think the other difficulty is that there might be some employers thinking, oh, well, that's fine because the female leaves in the office, they are separate lockable cubicles. They have everything that they need to in there. Let's use that as our unisex toilet, for want of a better phrase. But of course, that's not the solution because you're effectively reducing the amount of female-only work facilities, but keeping the male facilities as it is. Is that something that employers should be wary of?

Peter 20:22

Yeah, you do need to be careful of that. I mean, what we're getting into is the realms of indirect sex discrimination. So if you're causing a substantial disadvantage to women because of their sex, you've got an indirect sex discrimination claim. Now, there is a statutory defence to indirect sex discrimination, which is that it's a proportionate means of achieving a legitimate aim. But you're on fairly thin ice in a scenario in which the majority of your staff are women and you are then reducing the availability of female-only loos in order to accommodate males. Stressing again, for the purposes of the Equality Act, trans women are males. Then what you're doing is you're disadvantaging women on the basis of their sex and you are... perpetrating an act of indirect sex discrimination. So this is why I say the key thing for any employer in this situation is to just bear in mind that there won't be a one size fits all for every employer in every workplace. You have to look at the principles behind For Women Scotland and you have to look at the floor plan of your workplace and work out what are we going to do? Do we need to do anything? We might be fine. But if we do, what are we going to do that fits here and with our workforce? For Women Scotland, defines the meanings of the words man, woman and sex. But the 1992 Workplace Health Safety and Welfare Regulations are not the Equality Act. And when they talk about men and women, how do we know that the same approach that the Supreme Court's applied to the Equality Act actually plays through here? And there's a number of answers to that point. I mean, primarily, the 1992 regulations come from an EEC directive in 1989. That directive has been retained post-Brexit, so it's law that we have to follow. Secondly, the 1992 regulations are regulations. There's no right of action under those regulations. If you want to challenge, or if an employee or a worker says, hang on a minute, I've got a right to sex-segregated washing facilities under the regulations, I'm not being provided it, their remedy is litigation under the Equality Act. So if you're in a hypothetical example where a workplace has got one single communal lose for men and for women, and they all use them together, what does a woman do? Or for that matter, what does a man do to enforce the right that they've got under the 1992 regs? The answer is they go to the employment tribunal and they bring a claim for sex discrimination under the Act. And at that point, you're using the For Women Scotland Supreme Court biological definition of man, woman and sex. And you're also got to look at the purpose of the legislation in the first place. Why do we have separate sex facilities? Why are the regulations required? Why was the EU law required? I mean, you're talking about an EU, directive from 1989, you know, which is what, seven years before Jupiter Butler even wrote Gender Troubles and before a lot of these issues came to the fore. So I think it would be something of a challenge to say that the EEC, as it then was, was applying a gender identity theory definition of man and woman and again, why do we have separate sex facilities and spaces anywhere? It's because we recognise that there are different requirements, privacy, dignity, safety for women than there are for men, which is independent of identity or trans status. So I don't think there's any real kind of basis to say that the same definition is applied by the Supreme Court. to the Equality Act don't equally apply to the 1992 regulations.

Emma 24:12

Thank you, Peter. That was incredibly helpful. Thank you very much for joining me today.

Peter 24:16

Pleasure to be here.

Emma 24:17

If you'd like to find out more about how Doyle Clayton can help you with reviewing your policies or looking at your procedures in general, then please do contact us via our website. And also, don't forget to like and subscribe to this podcast. Many thanks for listening.