Sturgeon’s ministers ‘trying to deny biology’

Judges in landmark case are urged to rule that transgender people cannot change their sex

NICOLA STURGEON’S government has been accused in court of biological denialism by feminist campaigners who invited Scottish judges to rule that transgender people cannot change their sex.

In a case that will set a legal precedent across the UK, the campaign group For Women Scotland is attempting to quash guidance, issued by SNP ministers, that states transgender women who hold a gender recognition certificate (GRC) should be counted as female in gender quotas for public boards.

The ruling is likely to have far wider implications beyond the Holyrood equality legislation, passed in 2018, as it will help establish how the 2004 Gender Recognition Act, which first allowed people in the UK to obtain legal recognition of their transgender status, interacts with the 2010 Equality Act.

It will also shed light on the legal rights that a GRC – which SNP ministers are trying to make it easier for Scots to obtain – bestows on those who hold them.

The issues are contested between trans rights and gender critical activists, but have not been settled by UK courts.

For Women Scotland the claims that a person’s sex is immutable and that, regardless of whether a trans person holds a GRC, under UK law they remain distinct from biological members of their “acquired gender”.

Scottish ministers, meanwhile, argued that trans women with a GRC are legally women.

In a hearing yesterday, Aidan O’neill KC, representing the feminist group, said that a certificate could not alter a person’s biological sex any more than ministers could legislate to “repeal the law of gravity”.

He accused the SNP government and the Equality and Human Rights Commission (EHRC) of “inventing” the concept of legal sex.

Mr O’neill said that should Scottish ministers succeed in establishing that a transgender woman with a GRC is legally a woman, it would open up an “Alice in Wonderland rabbit hole” which could threaten single-sex spaces.

“What this case is about isn’t about biological determinism, but biological denialism,” Mr O’neill told the Court of Session.

“The EHRC say it’s within the competence of a sovereign parliament to do whatever it wants, rather like King Canute ordering the waves to return or perhaps to repeal the law of gravity.”

Scottish judges backed For Women Scotland in a ruling earlier this year, when they stated that SNP ministers had gone beyond their powers by seeking to “redefine” women to include all trans women in workplace quotas.

The Scottish Government rewrote its guidance, but stated that trans women who hold a GRC would still be counted as female.

Mr O’neill accused Scottish ministers of attempting to “get around” the earlier ruling in a bid to show they were “wonderfully gender reassignment inclusive”.

The 2004 law states that holders of a GRC should be legally recognised as a member of their “acquired gender”.

However, the 2010 Act treats trans women and biological women as two distinct groups. Both apply UK wide and the Scottish ruling will set important legal precedents.

The earlier case around the public boards law cost taxpayers £216,000, after the Scottish Government lost and was ordered to pay For Women Scotland’s costs.

Ruth Crawford KC, representing Scottish ministers, urged Lady Haldane to throw out the petition and said the case was “not about” several of the issues raised by Mr O’neill. She said it was instead simply about whether a public body following the revised guidance would be acting unlawfully, and said they would not be.

The case continues.