For Women Scotland v Scottish Ministers (Inner House)

In brief

Second Division, Inner House, Court of Session, 1 November 2023. Single unanimous OPINION OF THE COURT delivered by LADY DORRIAN, the Lord Justice Clerk, sitting with Lord Malcolm and Lord Pentland. No separate opinions, no dissent. Case ref P578/22. *** THIS IS THE SECOND FWS CASE — NOT THE LEGISLATIVE-COMPETENCE ONE. OUR OLD RECORD MERGED THE TWO. *** FWS 1 ([2022] CSIH 4; 2022 SC 150) struck down the ORIGINAL Gender Representation on Public Boards (Scotland) Act 2018 definition of 'woman' as outside legislative competence. That is a DIFFERENT case, on a DIFFERENT question, ~20 months earlier — same Division. This opinion says so expressly at [32]: 'The issue in the present case did not arise in and was not determined by FWS 1.' WHAT THIS CASE DECIDED: after FWS 1, the Scottish Government issued REVISED guidance defining 'woman' by reference to holders of a Gender Recognition Certificate. FWS challenged the revised guidance by judicial review. Lady Haldane DISMISSED the petition in the Outer House ([2022] CSOH 90; 2023 SC 61, 13 Dec 2022), holding the guidance lawful. FWS RECLAIMED. The Second Division REFUSED the reclaiming motion (Scots practice: 'refused', not 'dismissed'), affirming Lady Haldane. THE RATIO: GRA 2004 s.9 changes a person's legal sex 'for all purposes' subject to exceptions; nothing in EA 2010 displaced this for s.11/s.212 purposes (bar arguably pregnancy/maternity); so a GRC holder in the female gender falls within 'woman' for EA 2010 s.11 [65]. *** SCOTTISH MINISTERS WON; FOR WOMEN SCOTLAND LOST at this stage. *** FWS won only later, at the UKSC. *** COMPREHENSIVELY REVERSED by FWS-UKSC-2025 ([2025] UKSC 16, 16 April 2025), which is expressly 'on appeal from [2023] CSIH 37'. The UKSC held 'sex' in the EA 2010 means BIOLOGICAL sex throughout — and it revisited this opinion's supporting reasoning POINT BY POINT, not merely at headline level. *** This opinion is the reversed staging post in the FWS litigation chain — cite ONLY within a litigation-chain narrative, never as authority on the GRC/s.11 question.

Key provisions

• [2], [32] — *** FWS 1 IS A DIFFERENT CASE: READ THIS FIRST *** — 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 — *** use to correct any record (including our own, until 2026-07-17) conflating FWS 1's competence holding with this case's s.11 holding. Independently corroborated by the UKSC's own account at its [47]. ***
• [40]-[42] — THE GRA s.9 'FOR ALL PURPOSES' TEST: *** QUOTE [42] IN FULL; THE TRUNCATED VERSION MISSTATES THE 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 DROPPED 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. Our truncated quote gave a narrower, more rigid test than the court actually articulated, and severed the doctrinal throughline to the reversal. ***
• [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). DO NOT CITE AS 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.