Nicola Sturgeon's government has urged Lady Haldane to dismiss a case brought by feminist activists For Women Scotland, insisting it is 'quite clear' that UK legislation allowed a male to become legally female

It is ‘wrong’ to claim that human sex is determined at birth and cannot legally change, Scotland’s highest court has been told.

Nicola Sturgeon’s government has urged Lady Haldane to dismiss a case brought by feminist activists For Women Scotland (FWS), insisting it is ‘quite clear’ that UK legislation allowed a male to become legally female.

Ministers have been taken to the Court of Session by the feminist activists to challenge plans to broaden the legal definition of women to include transgender people with a female gender recognition certificate (GRC). 

The SNP is controversially looking to amend the act in Scotland to make it easier for people to obtain a GRC. 

FWS have argued that the change, which the Government hopes would boost the number of transgender people on Scottish public boards, is unlawful under the Equality Act.

However, Ruth Crawford, KC, representing the Government, said a person born male could be legally seen as a woman and ‘share’ their legal protections under the 2004 Gender Recognition Act.

Nicola Sturgeon's government has urged Lady Haldane to dismiss a case brought by feminist activists For Women Scotland, insisting it is 'quite clear' that UK legislation allowed a male to become legally female

Nicola Sturgeon’s government has urged Lady Haldane to dismiss a case brought by feminist activists For Women Scotland, insisting it is ‘quite clear’ that UK legislation allowed a male to become legally female

Ruth Crawford, KC, representing the Government, said a person born male could be legally seen as a woman and 'share' their legal protections under the 2004 Gender Recognition Act

Ruth Crawford, KC, representing the Government, said a person born male could be legally seen as a woman and ‘share’ their legal protections under the 2004 Gender Recognition Act

Gender reforms set to be watered down 

Controversial gender reforms are set to be watered down by SNP ministers following a major rebellion.

Social Justice Secretary Shona Robison has published a series of amendments to the Gender Recognition Reform Bill ahead of the final vote in parliament.

A mass rebellion saw Ash Denham quit as a government minister, while eight other MSPs broke the party whip to vote against the legislation or abstain. But the changes do not cover many of the most controversial aspects of the legislation, including the removal of the requirement for a medical diagnosis of dysphoria.

The deadline for lodging amendments closed yesterday.

Scottish Conservative equalities spokesman Rachael Hamilton said: ‘The SNP’s plans to reform the Gender Recognition Act are rushed, badly thought-out, and may end up harming vulnerable people.’

‘I would submit that the petitioner is wrong to argue… that sex is a matter of fact, not of law, and that there is no category of legal sex as distinct from biological sex,’ the Telegraph reports Ms Crawford as saying.

‘My response is that the construction of words in a statute is self-evidently a question of law and not a question of fact.’

Simply obtaining a certificate would not change a person’s biological sex, she added, but it could be altered ‘as a matter of law’. 

Meanwhile, For Women Scotland’s representative, Aidan O’Neill, accused ministers of ‘inventing’ the concept of legal, as opposed to biological, sex.

He also claimed the Government had ‘lapsed into incoherence’ by insisting rights were based on biological sex, such as if a trans man became pregnant, on some occasions but not others. 

Mr O’Neill said: ‘It’s a prescription for chaos. Our position is a consistent and coherent one – that there is one definition of sex, that is a biological definition.’

Earlier in the hearing, the advocate said the law’s definition came from ‘biological’ differences between the sexes, and added: ‘Women menstruate, go through the menopause, become pregnant and give birth.

‘They also bear social expectations to be responsible for child-rearing.’

Mr O’Neill said that the Scottish Government’s proposal was based on what he called ‘biological denialism’.

For Women Scotland won a previous Court of Session case over the Government’s 2018 Gender Representation on Public Boards Act when judges ruled it breached the 2010 Equality Act.

The Government put forward a proposed solution in statutory guidance published in April which said that a trans person with a gender recognition certificate would be regarded as male or female depending on their acquired gender.

But Mr O’Neill said on Wednesday the suggested resolution was still unlawful as the Equality Act states a woman is a person who is born female while a man is somebody who is born male.

It would also drive a ‘horse and coach’ through the concept of safe spaces for biological women, he said.

Demonstrators from For Women Scotland (FWS) gather outside the Scottish Parliament last month

Demonstrators from For Women Scotland (FWS) gather outside the Scottish Parliament last month

Mr O’Neill added: ‘The preservation of safe spaces is done on the understanding of biological sex – they are safe spaces for women who do not have a gender recognition certificate.

‘The Scottish Government interpretation runs a horse and coach through that interpretation by adding that a male with a gender recognition certificate can access these services.

‘If the court finds against me… that means any positive action measures in favour of women, like systemic under-representation of women in the workforce, would have to include any biological man who has got a gender recognition certificate.’

Trans men such as Freddy McConnell, who gave birth in 2018 after getting a gender recognition certificate, could also lose out on rights afforded to women, the court heard.

Mr O’Neill said it was his opinion that, under the Scottish Government proposals, Mr McConnell would not be able to access his maternity rights in the same way as a woman without a gender recognition certificate.

He said: ‘There would be a big black hole for the Freddy McConnells of the world.’

Mr O’Neill urged Lady Haldane to uphold the protected characteristics of the Equality Act 2010, saying it would protect women’s rights. Around 20 to 25 people in Scotland apply for gender recognition certificates each year, though research has suggested that number could jump to 250-300.

Ms Crawford, KC, for the Scottish Government, asked Lady Haldane to reject the arguments made by Mr O’Neill. 

She said: ‘My motion is for your ladyship to refuse the petition. The revised statutory guidance is lawful.’

Lady Haldane said she would deliver her ruling ‘in due course’.

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