Some pre decision reflections and thoughts on the interaction between the Gender Recognition Act 2004 and the Equality Act 2010 in the context of For Women Scotland v Scottish Ministers
A few years ago (in the days before Covid) I set up a class on legislation at honours level at Edinburgh. The course looked at statutory interpretation for half of the class and legislative drafting for the second half. The first year I assessed the course I prepared a problem question to assess the part on interpretation. What I was looking for was a question where the legal issues required the students to engage with a number of tools of interpretation, where there was no clear straightforward answer in law. I wanted the students to develop their ability to argue and use tools of interpretation, and to see how developing legal arguments required serious consideration of contrary arguments — to ensure that one’s argument was as strong as it could be it was essential to avoid strawmanning opposing arguments but to make the counterarguments as strong as they could be to enhance and strengthen the arguments to be made in response. It seemed to me that this was the essence of legal debate, a fundamental skill we should develop within a law degree.
I looked at various pieces of legislation, and concluded that the most effective way to do this was to choose an area where there was contention, where people could hold different views, and where there were intersecting pieces of legislation where the relationship between the two was not clear. The scenario I created specifically asked students to imagine they were a legal assistant providing research assistance to a judge who was confronted with a problem where there were two feasible legal arguments. They were asked to prepare arguments based on statutory interpretation for all parties that would appear before the court, and to evaluate those arguments.
The legislation I chose was the interaction between the Gender Recognition Act 2004 and the Equality Act 2010. The latter was a consolidation statute, that is to say a statute bringing together disparate pieces of legislation in one new piece of legislation. Although this was a consolidation statute that made tweaks and changes to existing legislation. It brought together legislation developed over the preceding four and half decades on race relations, sex discrimination, equal pay, disability discrimination, and reforms made in response to European Court of Human Rights decisions on gender reassignment. The former was legislation specifically enacted to respond to the cases of Goodwin v UK (11 July 2002) (2002) 35 EHRR 18 and Bellinger v Bellinger [2003] UKHL 21 (see the minister David Lammy in the House of Commons debate (23rd February 2004, Hansard vol 418, col 50)). And in addition the former conflated language relating to sex and gender, while including a provision (section 9) which is a deeming provision — a particular type of legislative provision creating a legal fiction where particular circumstances arise.
The problem I set involved a women’s refuge for those who had suffered domestic abuse. The refuge had a single sex policy. The refuge was approached by A, a natal male who had lived as a woman and obtained a gender recognition certificate; and B, a natal male who identified as a woman but had no such certificate. Both were fleeing violent relationships. And the refuge refused both A and B access to their services while pointing them to other services. And A and B then sued the refuge for breach of the Equality Act.
The problem was not prepared with any great foresight. It was merely attempting to bring out what seemed an obvious legal problem relating to the complexity of the interaction between the pieces of legislation, noting that the scenarios of someone with a gender recognition certificate and without were distinct legal issues arising from the interaction of the legislation. The question involved consideration of the meaning of sex, of woman, of man; consideration of the rules on single sex services and when people could be excluded. It involved consideration of whether policies operated by single sex services could be blanket or required to be based on individual circumstances. It required consideration as how widely a deeming provision creating a legal fiction could be construed. It required consideration of the extent to which language had to be read consistently across a piece of legislation, or whether consolidation legislation meant that a word could have multiple meanings in the same Act. And it required engagement with the purpose of two pieces of legislation, and required engagement with legislative history, explanatory notes, and parliamentary debates in determining how legislation should be construed. And there was guidance from the Equality and Human Rights Commission which had a role in interpretation but was expressly provided not to be determinative of meaning. It seemed obvious that at some point these issues would arise in legal disputes, and that students should be prepared to deal with that.
I did not anticipate a few things though.
For reasons it is too complicated to go into here the question was never set as I would not comply with a request from the central university to provide internal university policies to the students alongside the question. The question was about the law and I wanted students to engage honestly and seriously with the law not with internal university policies (which to an extent did not seem wholly compliant with legal obligations) skewing their view of the law.
Nor did I anticipate that in some articles (across journals in law and policy areas) and in political speeches and across social media or certain newspapers merely raising these issues would be perceived as being bigoted. When stating arguments in relation to the application of the law was perceived as bigotry we were in a bad way.
And I did not anticipate that some of these issues would come before the apex court in the United Kingdom so quickly. It was apparent there was going to be litigation at various points, particularly when organisations were disregarding (or in the language of the lobbyists who were advising the organisations “going beyond”) the law on the area. The provisions of the Equality Act 2010 regarding sex were never premised on the basis of self identification despite the assertions of lobbyists. The legislation seemed structured around the permissibility of blanket policies rather than based on individual assessments of proportionality (given the explanatory notes and framing of provisions around sport and single sex services) despite lobbyists (and some commentators) arguing otherwise — albeit often without reference to basic tenets of interpretation. I expected these issues to emerge in a number of first instance cases with the occasional appeal but did not expect a case reaching the Supreme Court at this stage.
The Supreme Court case For Women Scotland v Scottish ministers will be decided this Wednesday. What is at issue has not always been accurately reflected in the media commentary, some commentators (including former politicians) who have offered views in media outlets.
The case is about statutory guidance issued by the Scottish ministers on the Gender Representation on Public Boards (Scotland) Act 2018, and the legal constraints within which this guidance could be made. Generally, the acts of the Scottish government and parliament must comply with various reservations of power and this includes a requirement to act in compliance with the Equality Act 2010. The guidance provided that a natal male with a gender recognition certificate under section 9 of the 2004 Act would be a woman for the purposes of the 2018 legislation. The central issue then is whether this aspect of the guidance is within the terms of the Equality Act. Is a person with a full gender recognition certificate under the 2004 Act declaring that they are female a woman for the purposes of the Equality Act 2010 (and consequently is a gender recognition certificate relevant in determining the meaning of the protected characteristic of sex).
There was no argument in the case that an individual’s self identification as to their sex applied for determining sex the purposes of the Equality Act 2010. It is a basic principle in legal cases that if a matter is not argued the court cannot reach that conclusion. It is clear before the decision then that self identification has no basis in determining the meaning of sex in the 2010 Act.
It is a fool’s game to predict what will happen in a case. But it is clear, given the nature of the argument presented in the case, that the court will engage with the general principles of legislative interpretation today. This is summarised in R (Project for the Registration of Children as British Citizens) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255, per Lord Hodge, at para 29. This passage is referred to regularly in Supreme Court cases on interpretation. I would be surprised if it did not appear in the decision on Wednesday.
“The courts in conducting statutory interpretation are ‘seeking the meaning of the words which Parliament used’: Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613 per Lord Reid. More recently, Lord Nicholls of Birkenhead stated: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context.’ (R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 396). Words and passages in a statute derive their meaning from their context. A phrase or passage must be read in the context of the section as a whole and in the wider context of a relevant group of sections. Other provisions in a statute and the statute as a whole may provide the relevant context. They are the words which Parliament has chosen to enact as an expression of the purpose of the legislation and are therefore the primary source by which meaning is ascertained. There is an important constitutional reason for having regard primarily to the statutory context as Lord Nicholls explained in Spath Holme, p 397: ‘Citizens, with the assistance of their advisers, are intended to be able to understand parliamentary enactments, so that they can regulate their conduct accordingly. They should be able to rely upon what they read in an Act of Parliament.’”
Legislative interpretation depends primarily on the text of the legislation, and contextual interpretation of that text involves reading words in context of the rest of the Act and against the background of the legislation. I would be surprised if the supreme court did not address a deficiency in the approach of the Second Division of the Inner House of the Court of Session in the For Women Scotland case. The court there did not consider the consistency of language throughout the 2010 Act and the basic presumption that any expression is used consistently through legislation with reasons given if that is not the case. At one point the Second Division suggested this was too big a job for it to consider this — an abrogation of judicial responsibility. The Supreme Court will not duck this issue.
The general approach is purposive interpretation and the Supreme Court is faced with trying to address the purposes of two distinct pieces of legislation — the 2004 Act and the 2010 Act. The purpose of the 2004 Act will be addressed in part to determine the extent to of the deeming provision in section 9. It is provided in Fowler v HMRC [2020] UKSC 22 at para 27 (per Lord Briggs) that
“(1) The extent of the fiction created by a deeming provision is primarily a matter of construction of the statute in which it appears.
(2) For that purpose the court should ascertain, if it can, the purposes for which and the persons between whom the statutory fiction is to be resorted to, and then apply the deeming provision that far, but not where it would produce effects clearly outside those purposes.
(3) But those purposes may be difficult to ascertain, and Parliament may not find it easy to prescribe with precision the intended limits of the artificial assumption which the deeming provision requires to be made.
(4) A deeming provision should not be applied so far as to produce unjust, absurd or anomalous results, unless the court is compelled to do so by clear language.
(5) But the court should not shrink from applying the fiction created by the deeming provision to the consequences which would inevitably flow from the fiction being real. As Lord Asquith memorably put it in East End Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109, at 133:
“The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.””
The court will engage with this and consider whether a direct read through of section 9 (1) through the 2010 Act creates unjust, anomalous and absurd results (which will be informed by the contextual reading and presumption of consistency of meaning of language through the 2010 Act), and if so will either have to apply the fifth principle Lord Briggs notes, or may alternatively be inclined to use section 9 (3) of the 2004 Act as express wording within the 2004 Act which gives a way to avoid reaching those consequences.
I would be astonished if the Supreme Court gave any support to an argument run by For Women Scotland at lower levels that the Equality Act 2010 had impliedly repealed aspects of the Gender Recognition Act 2004. No such argument has been successfully run in a case for decades. It is an argument of last resort. The court will not give any support to such an argument.
I would be extremely surprised if an argument run by the Scottish government, suggesting that the Gender Recognition Act 2004, section 9 was a rule of interpretation of similar weight to the interpretative rule of the Human Rights Act 1998, section 3 (whereby all legislation needs to be construed to be compatible with the European Convention on Human Rights), was accepted by the court. The argument was presented by junior counsel (senior counsel Ruth Crawford KC was notably quiet during the argument). Given this approach immediately runs into a problem with section 9 (3) such an argument seems untenable. That time was spent making what appears a futile argument in oral argument did not seem a good use of time. I am bemused why the argument was presented.
If the court finds against For Women Scotland my expectation would be that this will primarily be on the basis of the submissions from the EHRC — that any problems in the legislation are for parliament and not the courts to resolve.
If the court finds in favour of For Women Scotland I think the likelihood is that this would be based on the arguments on fundamental principles of statutory interpretation found the submissions from Sex Matters.
But we will see what happens.
