Statement following Lady Haldane's opinion on the petition of For Women Scotland Ltd for judicial review

Published: 14 Dec 2022

A spokesperson for the Equality and Human Rights Commission said:

“The Equality and Human Rights Commission works to promote and uphold Britain’s equality laws.

“This means we have a duty to make sure the law is interpreted clearly and correctly, particularly – as in this case – the Equality Act 2010. The law concerning matters of sex and gender can be complex, and clarity is essential for the public bodies, employers, service providers and people across the country who rely on it.

“We welcome this judgment which confirms that the effect of a Gender Recognition Certificate is to change a person’s legal sex, including for the purposes of the Equality Act.

“We will take the outcome of this judicial review, and all other legal rulings, into account in our ongoing work as the regulator of the Equality Act.”

Notes to editors

  • The EHRC was named in these proceedings as an interested party. Our Single Sex Services guidance, published in April 2022, was also referred to in the judicial review.
  • This case was about the legal effect of a Gender Recognition Certificate, as the law stands currently, and whether the Scottish Government’s revised statutory guidance on the Gender Representation on Public Boards (Scotland) Act 2018 is lawful. It did not consider the rules or the process by which a person obtains a GRC.
  • Earlier this year, For Women Scotland successfully challenged by judicial review the definition of “woman” in section 2 of the Gender Representation on Public Boards (Scotland) Act 2018 and the accompanying original guidance.
  • There is currently no definition of “woman” set out in the Public Boards (Scotland) Act 2018, so “woman” has the same meaning in the 2018 Act as it does in the Equality Act 2010.
  • Under Section 11 of the Equality Act 2010, sex is a protected characteristic and is binary (a reference to a man or to a woman). Section 212 of the Equality Act defines “woman” as a female of any age.
  • The purpose of the Gender Recognition Act 2004 is to provide a mechanism by which people born in one sex could acquire the legal status of the other sex.

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