Equality law applies to ‘pregnant men’, SNP tells Supreme Court

Legal submission comes ahead of a landmark case over the definition of ‘woman’

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Legal protections for those who are pregnant can apply to men, SNP ministers have told Britain’s highest court ahead of a landmark case next week over the definition of “woman”.
Scottish Government lawyers said that references to a woman who is pregnant in the Equality Act 2010 are capable of applying to a “pregnant man” who had been born female.
If this was not so, their lawyers argued that “the man would potentially be entitled to bring a claim of direct discrimination on grounds of gender reassignment”.
In a 40-page legal submission to the Supreme Court, they also said that it was unlawful for women-only clubs and associations to exclude biological males with gender recognition certificates (GRCs).
For example, its legal submission stated that it would be unlawful for a lesbian association to bar biological males with GRCs who were sexually attracted to women.
The Scottish Government published its legal arguments in the case, which has been brought by For Women Scotland (FWS), the feminist group that led the successful charge against Nicola Sturgeon’s self-ID gender reforms.
Five judges, led by Lord Reed, will hear two days of arguments next Tuesday and Wednesday over whether guidance issued by the Scottish Government about the meaning of the word “woman” in the Equality Act is lawful.
The guidance states that a trans person with a full Gender Recognition Certificate (GRC) that confers upon them the acquired gender of female is a woman.
However, FWS has argued it is unlawful as the definition of woman in the Equality Act is tied to biological sex.
The case threatens to undermine efforts by John Swinney to move away from the controversial gender policies pursued by his two predecessors as first minister, Ms Sturgeon and Humza Yousaf.
Feminists warned that the case had the “potential to be just as excruciating for him as images of Isla Bryson” were for Ms Sturgeon.
Bryson was jailed in February 2023 after being convicted of raping two women, crimes which were committed while living as a man, Adam Graham. The predator was initially sent to a women’s prison, prompting a public uproar that saw the rapist move to the male prison estate.
The furore caused huge damage to Nicola Sturgeon and her controversial plans to allow people to self-identify their gender, shortly before her resignation as first minister.
Ms Sturgeon’s self-ID legislation was later vetoed by the UK Government over concerns it undermined women’s rights, including the protection of safe spaces such as changing rooms.
In an article for The Critic Magazine, feminist policy analysts Susan Dalgety and Lucy Hunter Blackburn said that the Supreme Court case was a “legacy of Sturgeon’s time in office”.
They said SNP ministers were now having to argue in court what they tried to avoid admitting during the passage at Holyrood of the self-ID legislation, that having a GRC “grants a man new rights in relation to women-only spaces”.
“John Swinney, Scotland’s current First Minister, would no doubt prefer that this case had long gone away, and will be hoping that it attracts little attention,” they said.
“If things said by Scottish Government lawyers in previous hearings are any guide, media coverage of quotes from its case have the potential to be just as excruciating for him as images of Isla Bryson were for his predecessor.”
They added: “We are approaching what is arguably the end game in the battle between material reality and gender identity theory.”
FWS initially went to court to challenge SNP ministers over a new law designed to increase the number of women on public boards. This stated that anyone “living as a woman” would be eligible.
The Court of Session in Edinburgh found the Scottish Government had gone beyond its powers by legislating that transgender women should count as women.
This forced the publication of new statutory guidelines which stated that transgender women should still be counted as female, so long as they held a GRC.
FWS launched a new legal challenge, arguing that the Scottish Government had overstepped its powers by effectively redefining the meaning of female.
But judge Lady Haldane ruled the definition of sex was “not limited to biological or birth sex” in December 2022. An appeal was rejected by the Inner House of the Court of Session, prompting FWS to go to the UK Supreme Court.
Dr Michael Foran, a public law lecturer at Glasgow University, said the Scottish Government submission to the court noted that the Equality Act protections from “pregnancy discrimination are afforded only to women”.
However, he said that SNP ministers argued that “all of these references to a woman who is pregnant are capable of being interpreted to apply to ‘pregnant men’.”
In an analysis of the submission, he said: “The Scottish Government’s argument is that the drafters of the Equality Act 2010, when they used the term ‘pregnant woman’ made the kind of embarrassing drafting error not seen in the UK since the 1860’s. Needless to say, this is a bold, perhaps even brave, claim to make.”
Dr Foran said FWS was arguing that female-only groups being forced to admit male-bodied trans people with GRCs was “absurd, unworkable, and a violation of the human rights of women and lesbians”.
However, he said the Scottish Government’s submission argued that “this is what Parliament intended to do” when it passed the Gender Recognition Act and the Equality Act.
A Scottish Government spokesman said: “We cannot comment on a live legal case.”