Scottish government faces legal action over gender policies

Scottish ministers are facing further legal action from the campaign group that won April’s UK Supreme Court ruling on the definition of sex in the Equality Act 2010.

For Women Scotland lodged a summons on Friday (15 August), which has been authorised to proceed, at the Court of Session against Scottish ministers, the Lord Advocate and the Advocate General for Scotland.

The group is trying to quash Scottish policies that it says are inconsistent with the ruling. For Women Scotland’s previous legal fight with Scottish ministers led to the Supreme Court judgment that women and sex in the Equality Act refer to biological women and biological sex.

The group said it is initially focusing on two policies: the Scottish government’s guidance on supporting transgender pupils in schools; and operational guidance on the management of transgender people in custody from the Scottish Prison Service.

FWS said both policies are in breach of the law. The schools’ guidance for single-sex toilets and changing rooms allows pupils “to use the facilities they feel most comfortable with”.

It also says “if PE classes are organised by sex, a transgender young person should be allowed to take part within the group which matches their gender identity”.

The prison guidance allows prisoners to be placed in a prison which is not of the prisoner’s sex. It also makes provision for a male prisoner who has a history of violence against women to be accommodated in a female prison.

In a statement, FWS said: “Nothing has persuaded the government to take action, and both policies remain stubbornly in place, to the detriment of vulnerable women and girls, leaving us little choice but to initiate further legal action.

“The Scottish ministers have 21 days to respond to the summons. If the policies have not been withdrawn by then, we will lodge the summons for calling, and the government will have to defend its policies in court.

“We are asking the court to issue a declarator that the school guidance and the prison guidance are unlawful and that they be reduced in whole. We are also asking that both policies are suspended in the meantime.”

The Scottish government has previously said it is waiting for the Equality and Human Rights Commission’s code of practice, which was consulted on this summer, before issuing advice to public bodies. The EHRC has said organisations should not wait before acting on the ruling.

A Scottish government spokesperson said: “It would be inappropriate to comment on live court proceedings.”

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