Scottish judges rule that ‘sex’ is not limited to biological or birth sex

A Scottish judge has confirmed that gender, not birth sex, is what carries weight in the law, a decision that could have implications for radical gender reforms ahead, with the country heading towards a system that would allow anyone to self-identify as to “identify” a woman.

The campaign group For Women Scotland had taken the Scottish Government to court in a case relating to legal guidelines by Scottish ministers on representation on public bodies.

On Tuesday, For Women Scotland lost the case in the Court of Session, Scotland’s highest civil court, with a judge ruling that transgender people with a Gender Recognition Certificate (GRC) can be legally defined as women when it comes to legislation (pdf) .

For Women Scotland said this could have significant implications for the Gender Recognition Reform Act (Scotland), which will allow individuals to change their gender simply by submitting an affidavit.

equality law

The group, which works to “protect and empower women’s and children’s rights,” claimed that the 2010 Gender Equality Act’s definition of “woman” should be understood as “biological woman” rather than someone who is about a identified as female according to GRC issued GRC Gender Recognition Act 2004.

However, in announcing her decision, Justice Lady Haldane said that “this petition essentially addresses whether the definition of ‘woman’ in the 2010 Act includes persons who a GRC declares that their acquired gender, and therefore their gender, is female.” is.”

“I conclude that in this context, which is the meaning of gender for the purposes of the 2010 Act, ‘gender’ is not limited to biological or birth sex, but includes persons in possession of a GRC issued pursuant to the law of 2004 issued her acquired gender and therefore her gender,” she said.

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“Such a conclusion does not violate or conflict with any legislation where it is clear that ‘sex’ means biological sex,” added Haldane.

Gender Recognition Reform Bill (Scotland) is due to be passed later this month.

Under the new plans, the age at which people can apply for the gender reassignment process will be lowered from 18 to 16. In addition, the time it takes applicants to live in the acquired sex will be reduced from two years to three months, with the requirement for a medical diagnosis and evidence removed.

The law does not create an obligation to undergo surgery or hormone therapy, and it will also simplify the gender reassignment procedure on birth certificates.

Epoch Times photo
United Nations Special Rapporteur on Violence Against Women, Its Causes and Consequences Reem Alsalem (L) and UN High Commissioner on Human Rights Orlagh McCann (R) address a news conference in Ankara, Turkey, July 27, 2022. (Aden Altan/AFP via Getty Images)

“Not a simple administrative change”

Critics of legalization say a self-identification system could be exploited or male prisoners could abuse the system. The proposals recently drew criticism from the UK government and the Equality and Human Rights Commission (EHRC), which in October called for more consultation with those affected by the proposed changes.

In November, the UN Special Rapporteur on violence against women and girls, Reem Alsalem, expressed serious concern that women’s services and private spaces were being opened up to abuse (pdf).

In a statement, For Women Scotland said that on “first reading this appears disastrous for women who no longer appear to be legally recognized as a sex class with requirements of their own”.

“We are of course still analyzing the decision and will consider whether further legal action is appropriate in due course,” she added.

For Women Scotland spokeswoman Susan Smith told The Epoch Times that the decision means there are clear implications for the law currently before Parliament and she hopes MSPs will be given some time to adapt to think about the judgment and its consequences.

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“We now know that this is actually not a simple change of administration, like them [the SNP] have claimed. It fundamentally changes how a person is legally treated under this ruling,” Smith said.

“It means that all the things that the Scottish Government dismissed as untrue and as scaremongering by people like the EHRC were right,” she said, adding that she believed it might break Equality Act.

“We need Westminster to get up and go over it again and sort it out because they are responsible for the Equality Act,” Smith said.

‘Profound Implications’

Sex Matters, co-founded by Maya Forstater, whose case set a binding precedent that “gender beliefs are fundamentally protected by the Equality Act,” wrote on Twitter: “Scottish court rules sex is about paperwork, not Biology – making our campaign to clarify the meaning of sex in the Equality Act 2010 even more urgent.”

“The ruling has profound implications for the impact of the legislation being debated in Scotland,” she added.

Scottish Trans Alliance, an organization campaigning for equality and gender identity and gender reassignment rights in Scotland said on Twitter that the “current application process for a gender recognition certificate (which can be used to change the gender on a birth certificate) is broken and unfair”.

“Precisely for this reason, many countries around the world have moved to a simple, administrative model of self-declaration. Trans people know each other better than anyone, and many leading human rights organizations agree that we should be the ones who decide how we want to be recognized,” she added.

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A Scottish Government spokesman said: “We are delighted with the outcome of this challenge.”

PA media contributed to this report.

Owen Evans

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Owen Evans is a UK-based journalist covering a wide range of national stories, with a particular interest in civil liberties and freedom of expression.

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