For Women Scotland v Scottish Ministers (Inner House)

In brief

The Inner House of the Court of Session held that a person with a gender recognition certificate in the female gender is a 'woman' for section 11 of the Equality Act 2010, and refused For Women Scotland's appeal; the Supreme Court later reversed this in For Women Scotland [2025] UKSC 16. This is the second For Women Scotland case, not the legislative-competence one. The first (FWS 1, [2022] CSIH 4; 2022 SC 150) struck down the original definition of 'woman' in the Gender Representation on Public Boards (Scotland) Act 2018 as outside legislative competence: a different case, on a different question, about 20 months earlier. This opinion says so at [32]: 'The issue in the present case did not arise in and was not determined by FWS 1.' After FWS 1, the Scottish Government issued revised guidance defining 'woman' by reference to holders of a Gender Recognition Certificate. For Women Scotland challenged the revised guidance by judicial review. Lady Haldane dismissed the petition in the Outer House ([2022] CSOH 90; 2023 SC 61, 13 December 2022), holding the guidance lawful. For Women Scotland reclaimed (appealed), and on 1 November 2023 the Second Division refused the reclaiming motion (in Scots practice 'refused', not 'dismissed'), affirming Lady Haldane (case ref P578/22). Its reasoning: GRA 2004 s.9 changes a person's legal sex 'for all purposes', subject to exceptions; nothing in the Equality Act 2010 displaced this for s.11 and s.212 purposes (except, arguably, pregnancy and maternity); so a GRC holder in the female gender falls within 'woman' for EA 2010 s.11 [65]. The Scottish Ministers won and For Women Scotland lost at this stage; For Women Scotland won only later, in the Supreme Court. The Supreme Court ([2025] UKSC 16, 16 April 2025), expressly 'on appeal from [2023] CSIH 37', held that 'sex' in the Equality Act 2010 means biological sex throughout, and it revisited this opinion's supporting reasoning point by point, not merely its headline. This opinion is therefore the reversed stage in the For Women Scotland litigation, and is not authority on the GRC and section 11 question.

Key provisions

• [2], [32] — FWS 1 is a different case : FWS 1 ([2022] CSIH 4) struck down the original 2018 Act definition on legislative-competence grounds. This case is a later, different question: the statutory interpretation of 'woman' in the revised guidance. Verbatim [32]: 'The issue in the present case did not arise in and was not determined by FWS 1.' — framework — Independently corroborated by the UKSC's own account at its [47].
• [40]-[42] — The GRA s.9 'for all purposes' test : Verbatim: 'Section 9(3) requires to be understood as allowing for the possibility that further exceptions might arise in subsequent enactments. Section 9(1), read with sections 9(2) and (3), essentially means that the person with the GRC acquires the opposite gender for all purposes unless there is a specific exception in the GRA; or unless the terms and context of a subsequent enactment require a different interpretation to follow. Should that occur, however, it is to be expected that the inapplicability of section 9(1) would be clearly stated...' — dual — The second limb is the operative one. It is the test the reclaimer invoked over EA 2010 s.212 — and it is precisely the limb the UKSC later found did displace the general GRA presumption.
• [53] — The Lord Ordinary's reasoning approved : Lady Haldane's CSOH 90 conclusion (a GRC-holder's sex includes the acquired gender for EA 2010 purposes) adopted — respondent (historically) — superseded; cite only for the litigation-chain narrative.
• [54]-[64] — The schedule-by-schedule 'workability' analysis : The GRC-inclusive reading held workable for armed forces, single-sex spaces, schools, communal accommodation; pregnancy/maternity carved out as needing a biological reading — framework — The UKSC disagreed point by point (e.g. UKSC [617] expressly disagrees with this opinion's [56] on single-sex-space exceptions); it is not good law. Note the internal tension: the court's own pregnancy/maternity carve-out foreshadows the UKSC's critique of its approach.
• [65] — Conclusion / disposal : 'A person with a GRC in the female gender comes within the definition of "woman" for the purposes of section 11 of the EA.' Guidance lawful; reclaiming motion refused — framework — the reversed headline holding.
• [7]-[12] — The statutory text as quoted : GRA 2004 and EA 2010 provisions quoted accurately — framework — survives the reversal: only the court's construction of the text was overturned, not its quotation of it.

When relevant

Historical context only: completing the FWS litigation chain. For current law on the meaning of 'woman' and 'man' in EA2010, cite FWS-UKSC-2025 only. The Inner House reasoning (para 42) is the specific proposition the UKSC rejected.