Doyle Clayton clients prevail in landmark Supreme Court decision

The Supreme Court handed down its judgment in For Women Scotland -v- Scottish Ministers. The case considered whether a person who holds a Gender Recognition Certificate acquires, for the purposes of discrimination law, the sex recorded in that certificate; or whether, alternatively, a person’s biological sex is retained in perpetuity regardless of the award of a certificate.

Doyle Clayton was instructed by three lesbian organisations - Scottish Lesbians, The Lesbian Project and LGB Alliance – to intervene in the case to provide assistance to the Court on the implications of the issue for lesbians. Of concern to our clients was that the award of a Gender Recognition Certificate to a male person with a sexual orientation towards women would mean that he would become a lesbian in the eyes of the law, thus enabling him access to lesbian services, clubs and associations. These lesbian spaces would therefore be legally prevented from being female-only.

The submissions, by barristers Karon Monaghan KC and Beth Grossman, argued that a male can never be a lesbian as a matter of fact, whether in possession of a Gender Recognition Certificate or not, and that the wider definition of “sex” and “woman” would create serious problems for lesbians in relation to services, clubs and associations, and would affect claims for direct and indirect discrimination.

By a unanimous decision, the judgment of the Supreme Court upheld our submissions, and held that the words “sex”, “man” and “woman” in the Equality Act 2010 hold their ordinary biological meaning.

The Court held that “Read fairly, references to sex [in the Equality Act provisions for sexual orientation] can only mean biological sex. People are not sexually oriented towards those in possession of a certificate.”

The Court further held that “a person with same sex orientation as a lesbian must be a female who is sexually oriented towards (or attracted to) females, and lesbians as a group are females who share the characteristic of being sexually oriented to females”.

Doyle Clayton partner Peter Daly, who acted on the case, said:

“This is a landmark judgment, which provides one of the most comprehensive clarifications on discrimination law since the enactment of the Equality Act 2010.

“The legal protections that all lesbian women – and gay men – enjoy are now set out in a detailed judgment from the UK’s apex court. This enhances and strengthens those protections.

“The effect of this judgment will be to expose to sunlight the remarkable degree of misunderstanding, perpetuated by incorrect policy, analysis and commentary, that has been disseminated about these issues in recent years.

“The judgment does not change the law; it only reasserts what the law has always been. It is incumbent now on organisations to revisit their policies and any advice they have received about the Equality Act 2010, to determine whether that advice was correct. For many organisations this advice will have been incorrect, with the effect that these organisations have been, and continue to be, operating unlawfully.”

LGB Alliance’s Director Kate Barker said:

“It is difficult to express the significance of this ruling: it marks a watershed moment for women and, in particular, lesbians who have seen their rights and identities undermined over the last decade.”

Writing in The Telegraph, The Lesbian Project’s Julie Bindel said:

“I knew we were going to win. I was so confident of this that last week I announced in Edinburgh, at the launch of my latest book, Lesbians: Where Are We Now?, that I was willing to bet one of my limbs on it. Thankfully, I still have all four, and I’m very grateful to the court.”

Scottish Lesbians said:

“We are proud to have been Lesbian Interveners alongside The Lesbian Project and LGB Alliance. We owe a huge debt of gratitude to our fantastic legal team: solicitor Peter Daly and barristers Karon Monaghan KC and Beth Grossman, who worked pro bono to ensure that lesbian voices were heard.

“To quote from the lesbian intervention, “Lesbians’ rights matter too.”