Amnesty International UK's third-party intervention in the Supreme Court appeal of the case of For Women Scotland v Scottish Ministers, taking place on 26th and 27th of November 2024.
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. In essence the question is whether existing legislation which has been understood in this manner for many years should be understood in this way.
For a few years, Amnesty International UK has been increasingly worried about the deterioration of rights and quality of life for trans people in the UK. Sections of the media and politicians across parties continue to spend an eye-watering amount of time berating trans people, who are only about 1% of the population.
Where does this interest come from and why has it been prioritised over the many issues facing women in this country? We decided to intervene in this case because we believe it is critical to set out why legal gender recognition is a human rights issue and why existing protections are right and necessary.
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, if not the same. 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.
As with all issues related to trans people, we expect that much of the reporting on the case will be misinformed, or even actively spread disinformation. Therefore, it is vital to be clear that the case is not about ‘self-id’ and that the court has no power to change the Equality Act or the Gender Recognition Act.
What does our submission say?
Legal gender recognition is an issue of human rights. It is essential for trans people to be able to fully enjoy the right to privacy, to marry and to family life, the right to the highest attainable standard of health, to be free from inhuman and degrading treatment and to guarantee the best interest of their children.
In 2002 a judgement of the European Court of Human Rights found that the lack of legal recognition of a trans person’s ‘acquired gender’ in the UK was a violation of the rights to privacy and family life. In response, in 2004 the UK Parliament passed the Gender Recognition Act setting out a process for legal gender recognition. A trans person issued with a Gender Recognition Certificate becomes for all legal purposes the ‘acquired gender’, so that if the ‘acquired gender’ is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman. Subsequent case law has clarified that the scope of the Gender Recognition Act is across all purposes of life, and this has been the commonly understood legal position for many years.
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.
Our position on legal gender recognition beyond this case
It is important to remember that the case is not about ‘self-id’. Legal gender recognition is currently based on a diagnosis of gender dysphoria and there is option for ‘self-id’. The case is about the law that we currently have.
Beyond this specific case Amnesty International’s position on legal gender recognition is that the process should be an administrative one, rather than a medicalized one that requires a diagnosis of gender dysphoria. An administrative process, so called ‘self-id’, would be based on a statutory declaration whereby a trans person identifies as the gender they are. A statutory declaration is a formal statement, whereby a person affirms that something is true to their best knowledge. It must be signed in the presence of a solicitor, commissioner for oaths or notary public.
What happens next?
The case will be heard on 26th and 27th November and the judgement handed down at a later date.
If you feel affected by this issue and the events of this week you can reach out the LGBT Switchboard