A Tale of Two Court Cases

It was the best of times, it was the worst of times.

Court of Session, Edinburgh: Lorna M Campbell, Wikimedia Commons

I’d love to know just what gets into the minds of Scotland’s judiciary, when they can make two judgements on separate cases concerning gender diversity on two consecutive days, which are apparently contradictory.

The first case concerns the forthcoming Scottish Census, which has been put back to 2022 due to the Coronavirus pandemic. The census will contain the mandatory question, “What is your sex?”, to which people can answer “male” or “female”, and a voluntary question related to gender diversity. Guidance on the census shall state “if you are transgender, the answer you can give can be different from what is on your birth certificate – you do not need a gender recognition certificate (GRC)”

The “women’s” group (which excludes transgender women, so not really a women’s group) Fair Play for Women (FPFW) launched a legal challenge in the Court of Session to this question and guidance, arguing that it contravened the 1920 Census Act. Their legal representative, Roddy Dunlop QC (notice that this “women’s” group had to rely upon a male Queen’s Counsel) argued that the distinction between sex and gender is “recognised in law”, as stated on either a birth certificate, or Gender Recognition Certificate (both of which would stick rigidly to the traditional gender binary – so much for us poor enbies), and that allowing to do otherwise would “approve unlawful conduct”, more or less saying that being transgender is effectively a crime.

Dunlop stated, “The position of the petitioner is that you have the sex you’re born with and you have a gender recognition certificate – those are the two legal possibilities, there is no other.”

Defending for the Scottish Govenment, Douglas Ross QC countered that the Census Act was “designed to evolve with the times and accommodate changes”, adding that FPFW were asking a “rigid and unaccommodating definition”, which he recommended the court should reject.

In his written judgement on 17 February, Lord Sandison, presiding, sided with the Scottish Government, stating there existed “no general rule or principle of law that a question as to a person’s sex may only properly be answered by reference to the sex stated on that person’s birth certificate or GRC”, adding, “an answer provided in good faith and on reasonable grounds would not be a false answer in the relevant sense, even if persons other than the respondent providing it might not think it the ‘right’ answer… …Some transgender people at the very least would not be answering the sex question falsely by stating that their sex was other than that recorded on their birth certificate and the guidance merely acknowledges that.”

Lord Sandison, who is fast becoming my favourite magistrate, also said that gender issues were “much more openly and widely discussed and debated” today than they were in 1920, when the original laws were drawn up. He also stated, “I would accept the suggestion that biological sex, sex recognised by law, or self-identified or “lived” sex as at the date of the census are all capable of being comprehended within the word.”

FPFW were hoping to win this case, as they won a similar case in the English courts in 2021, which resulted in a simliar gender question in the 2021 census for England and Wales being changed. However, Lord Sandison made the very valid point that Scots Law differs from English Law. And quite rightly too, as had FPFW won, then it would effectively have seen English Law imposed upon Scotland, which not even the architects of the 1707 Act of Union envisaged. When the Treaty of Union was drawn up, it was agreed that Scotland and England would retain their own unique law, education, and ecclesiastical systems.

Lord Sanidson concluded that Scotland’s census guidance was “notably limited in nature” compared to that in other parts of the UK, stating “it does not positively instruct or even recommend any particular mode of answering the sex question in individual cases”.

So, that’s a win for gender diversity, and a loss for FPFW, who appear to have lost their census (sorry, dears, I couldn’t resist).

The second case is not such good news. The group For Women’s Scotland Limited (yes, they have registered themselves as a limited company) raised a civil case in the Court of Session, following a judgement last year by Lady Wise, when they failed to convince her to rule that the Gender Representation on Public Boards (Scotland) Act 2018 was unlawful.

Their argument is that the above Act breaches the Equality Act 2010, which was passed by the UK Government, and that the Scottish Government cannot contravene this as equalities law is a reservered matter for Westminster.

Take note here; For Women Scotland claim to in favour of Scottish independence and are often present at independence marches and rallies.

Advocate Aiden O’Neill QC (another women’s group depending upon a man) argued that Lady Wise was incorrect in her interpretation of the law. He argued that the Equality Act contains “protected characteristics” to protect people from sex discrimination, and those characteristics were defined as being either male or female, or a group of people like men or boys, or women or girls, adding that case law on sex discrimination defined women on the basis of unique biological features – such as fertility.

Pretending to be a trans ally, Mr O’Neill added that a separate clause in the Equality Act to protect transgender individuals.

He argued that the Scottish Government’s proposals to help transgender people gain greater representation on public boards undermined the rights that women had under the Equality Act.

The case was heard by judges Lady Dorrian, Lord Pentland and Lord Malcolm, and on Friday, 18 February, just one day after the FPFW case in the same court, Lady Dorrian gave her written judgement that the Scottish legislation does indeed broach the Equality Act 2010, and that the 2018 leglislation was “outwith” the legal competence of the Scottish Government.

She wrote;

“By incorporating those transsexuals living as women into the definition of woman the 2018 Act conflates and confuses two separate and distinct protected characteristics, and in one case qualifies the nature of the characteristic which is to be given protection.

“It would have been open to the Scottish Parliament to include an equal opportunities objective on public boards aimed at encouraging representation of women. It would have been open to them separately to do so for any other protected characteristic, including that of gender reassignment.

“That is not what they have done. They have chosen to make a representation objective in relation to women but expanded the definition of women to include only some of those possessing another protected characteristic.

“In any event, the definition of woman adopted in the legislation includes those with the protected sex characteristic of women, but only some of those with the protected characteristic of gender reassignment.

“It qualifies the latter characteristic by protecting only those with that characteristic who are also living as women.

“The Lord Ordinary (Lady Wise) stated that the 2018 Act did not redefine ‘woman’ for any other purpose than ‘to include transgender women as another category’ of people who would benefit from the positive measure.

“Therein lies the rub: ‘transgender women’ is not a category for these purposes; it is not a protected characteristic and for the reasons given, the definition of “woman” adopted in the Act impinges on the nature of protected characteristics which is a reserved matter.

“Changing the definitions of protected characteristic, even for the purpose of achieving the gender recognition objective is not permitted and in this respect the 2018 Act is out with legislative competence.

“For the above reasons the reclaiming motion succeeds.”

Notice the wording here; “transsexuals living as women”. That is transphobic language. Not only by using the oudated pejorative term “transsexuals”, but also by inferring that transgender women are not women, but merely “living as women”.

So we lost that one. And we have lost it because a bunch of TERFs, who claim to support an independent Scotland, are more than happy to have matters of gender equality decided by a government which Scotland never voted for, and courts which have no bearing in Scots Law.

We’re not equal, because Westminster has decided we don’t even exist.

The law is indeed an ass; a huge, cisgender, transphobic ass.

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