Subscribe to Holyrood updates

Newsletter sign-up


Follow us

Scotland’s fortnightly political & current affairs magazine


Subscribe to Holyrood
The Section 35 appeal was rejected. Now it's time to clarify the Equality Act.

Maya Forstater attends a protest at Holyrood in October 2022 | Alamy

The Section 35 appeal was rejected. Now it's time to clarify the Equality Act.

At the end of last year the Scottish Parliament passed the Gender Recognition Reform (Scotland) Bill, cancelling Christmas for those of us in groups such as Sex Matters and Murray Blackburn Mackenzie who were concerned that the legislation harmed women's rights and was the result of a poor policy process, insincere consultations, and evasive debates. Legal academic Michael Foran also scrambled to publish rapid technical advice.

The UK Government had four weeks to decide whether to invoke Section 35 of the Scotland Act to stop the bill receiving royal assent, and we stepped in to publish analysis of the reasons why it should. Today the government’s decision to step in was vindicated.

The Court of Session rejected the appeal by the Scottish Government against the UK Government’s Section 35 order. The Scottish Government had argued that the Secretary of State for Scotland “acted irrationally by failing to acquaint himself with the relevant facts and material before making the Order”. But this was rejected by the judge, Lady Haldane. She noted that it would not have been possible for him to undertake an extensive information-gathering exercise within the tight timeframe, and so he had to rely on information and advice from others, which included “organisations active in the area of sex-based rights” as well as the Equality and Human Rights Commission and UN experts.

Stonewall and the Equality Network had been lobbying for the self-ID law, and intervened in the case, but Lady Haldane noted that they disagreed with each other over the basic question of the significance of obtaining a gender-recognition certificate (GRC). Stonewall said: “Trans people pursue this process because of the significant advantages that follow from obtaining a GRC”, which include having birth, marriage and death certificates that match their gender presentation.

The law is more confused than ever

Without a GRC, Stonewall said: “Any time a trans person is required to produce a birth, marriage or death certificate, they will be outed as trans.” The Equality Network on the other hand said: “There are very few occasions in which having a GRC has a practical effect… In the day-to-day life of a trans person, the concept of ‘legal sex’ is unimportant.”

The Scottish Government itself has been evasive in parliamentary debates about the impact of a GRC on the operation of the Equality Act, and equivocal in court. During the past year it has argued in one judicial review (in response to the challenge by For Women Scotland) that a GRC gives access to single-sex spaces for the opposite sex, and in the Section 35 judicial review that it doesn’t.

Having spent much of last Christmas writing analysis of the legal situation, we at Sex Matters are pleased to see this referenced by the Court along with the work of MBM. It is clear that the Gender Recognition Reform (Scotland) Bill was rushed through without adequate consideration of the risks and impacts.

While today’s judgment prevents self-ID being brought into law in Scotland, it does not provide clarity about what a GRC means. In fact, the law is more confused than ever. This case, together with the For Women Scotland case about the meaning of sex in the Equality Act (which was also decided in the first instance by Lady Haldane), has exposed problems with the lack of clarity about the interaction between the Equality Act and the Gender Recognition Act, and about what having a GRC means in practice. If lawyers, judges, government bodies and human-rights organisations are unable to agree on the basic interpretation of a law that every person in the UK must comply with in their everyday working life, this suggests it is time for parliament to clarify that law.

Kemi Badenoch, the UK Minister for Women and Equalities, said in the House of Commons on Wednesday: “As a result of the Haldane judgment [in the For Women Scotland case] there is now confusion between biological sex and legal sex and certainly in terms of the interpretation that people put on it… the law is no longer clear. In fact, I would go so far as to say that the law is now a mess because of changing times. We need to provide clarity.”

Clarify the meaning of 'man' and 'woman' in the Equality Act

She promised that the government in Westminster would now carry out work to fix that.

Earlier this year Sex Matters gathered over 110,000 signatures on a petition to clarify the law and there was a debate in Parliament in Westminster. We are now calling on the UK Government to urgently take the necessary clear and bold action, whether through secondary or primary legislation, to clarify the meaning of “man” and “woman” in the Equality Act.

While legislation may take time, one immediate action the minister for women and equalities could take is to make clear in the information provided to people applying for gender-recognition certificates that it is not an access-all-areas pass to services and spaces provided for the opposite sex, or a means to compel others to pretend that a person is the opposite sex.

Maya Forstater is executive director of Sex Matters, a human rights organisation that campaigns for clarity on sex in law and everyday life

Holyrood Newsletters

Holyrood provides comprehensive coverage of Scottish politics, offering award-winning reporting and analysis: Subscribe

Get award-winning journalism delivered straight to your inbox

Get award-winning journalism delivered straight to your inbox


Popular reads
Back to top