The Court must protect the rights of a minority group  

‘Legal gender recognition, as it works now, is essential for trans people to enjoy the full spectrum of human rights each of us is entitled to, and live free from fear of discrimination.’ - Amnesty 

Amnesty International UK has published its third-party intervention in the Supreme Court appeal of the case of For Women Scotland v Scottish Ministers, which will be heard this week (26/27 November), with a judgment at a later date. 

The Supreme Court is called to answer the question of whether a person with a Gender Recognition Certificate that recognises her gender as female, is a woman for the purposes of the Equality Act and the protections against sex discrimination that the Act provides. The decision will address whether existing legislation which has been understood in this manner for many years should still be understood in this way.   

Amnesty is increasingly concerned about the deterioration of rights and the quality of life for trans people in the UK and abroad. Amnesty has intervened in this case to set out why legal gender recognition is a human rights issue and why existing protections are right and necessary.  

Legal gender recognition underpins the right to privacy, to marry and family life, the right to the highest attainable standard of health, to be free from inhuman and degrading treatment and protections against sex discrimination. 

An Amnesty spokesperson said: 

“Too many media outlets, politicians across parties and online commentators, continue to spend an eye-watering amount of time berating trans people - who make up just 1% of the population - and spreading dangerous misinformation. 

“In many countries, groups that want to limit the autonomy of women and LGBT+ people are bringing legal challenges to erode human rights protections. Whether it is the right to legal gender recognition, the recognition of LGBT+ families or the right to access healthcare and abortion services the arguments tend to be very similar. This is one of those cases. While we fight to advance human rights, we need to be alert and ready to preserve what we have.   

“Legal gender recognition as it works now is essential for trans people to enjoy the full spectrum of human rights each of us is entitled to, and live free from fear of discrimination. 

“Regardless of what we look like, where we come from or how we express our gender identities, human rights apply to everyone, and we all deserve to be treated with dignity and respect.” 

Amnesty’s submission to the Court  

In 2004, the UK Parliament passed the Gender Recognition Act following a judgement of the European Court of Human Rights that found the lack of a process for legal recognition of a trans person’s ‘acquired gender’ was a violation of the rights to privacy and family life.  

The relevant human rights principles and values identified in the European Court 

of Human Rights’ case law are crucial to the intent behind the Gender Recognition Act and therefore the correct interpretation of the Act. Barring a person with a Gender Recognition Certificate from protections against sex discrimination in accordance with their ‘acquired gender’ would fundamentally conflict with these principles and values. 

Other European sex discrimination case law which applies to the interpretation of the Equality Act specifically holds that “sex” cannot be given a purely biological meaning and remain consistent with human rights principles. 

The structure of the Equality Act is in harmony with the European Convention on Human Rights, and attempting to impose a rigid biological meaning into the terms it uses raises potentially significant issues of human rights incompatibility and risks preventing a fair balance being struck by the Equality Act. 

Amnesty reiterates that the Equality Act provides a process which enables the exclusion of trans people from single sex services, if it is a ‘proportionate means to achieve a legitimate aim’, meaning that there is a high threshold to be able to justify exclusion. A blanket policy of barring trans women from single sex services is not a proportionate means to achieve a legitimate aim. If the Equality Act did not intend to consider trans women as women, it would not have included a process for exclusion in the first place. 

The full submission can be read here: https://www.amnesty.org.uk/resources/amnesty-international-uks-third-pa…