On the second day of the judicial review, Ruth Crawford KC, representing Scottish ministers, said it was “very clear” that UK law allowed a man to legally become a woman and urged Lady Haldane to dismiss a case they brought feminist activists. Campaign group For Women Scotland argued that SNP government guidance stating that transgender women with a Gender Recognition Certificate (GRC) should be counted as women in public council quotas is illegal as under the Equality Act 2010, biological women and trans women are separate groups. However, Ms Crawford said that under the Gender Recognition Act 2004, which the SNP is currently seeking to amend in Scotland to make it much easier to obtain a GRC, a person born male could become a female in the eyes of the law and “share” their legal protection. He rejected claims that the Equality Act had effectively repealed parts of the previous legislation, meaning GRCs had become “little more than a symbol”. Ms Crawford also denied that her position would mean that trans men with GRCs would be stripped of rights, for example if they became pregnant, a position that was branded “completely incoherent” by her opponent. “I would submit that the petitioner is wrong to argue … that sex is a matter of fact, not law, and that there is no category of legal sex so different from biological sex,” Ms Crawford told the Court of Session. “My answer is that the construction of words in a statute is a self-evident question of law and not a question of fact.” He acknowledged that a person’s biological sex cannot be changed by obtaining a certificate, but insisted that “by law” it could be changed. “A person’s acquired sex [if they hold a GRC] it results in an acquired sex, for all intents and purposes, so a person’s sex can be changed by law,” he said. “There are no inconsistencies between the two statutes, which have different purposes and focus on different subjects.” Aidan O’Neill, representing For Women Scotland, accused the Scottish Government of “inventing” the concept of legal, as opposed to biological, sex. The feminist group won an earlier case against the Scottish Government, with judges ruling that SNP ministers had overstepped their powers by redefining the legal definition of women as defined in the Equality Act, seeking to include all transgender women in the category . For Women Scotland launched a fresh judicial review after ministers changed their guidance to say trans women with GRCs would still count as women, a position they say is inconsistent with the original decision. The new decision will have implications far beyond Holyrood’s public councils legislation, which was passed in 2018, as it will help define how the Equality Act and the Gender Recognition Act interact , a contested area among gender-bending and transgender activists. Mr O’Neill, responding to Ms Crawford’s arguments, claimed Scottish ministers had “fallen into inconsistency” by arguing that in some cases rights were based on biological sex, for example if a trans man became pregnant, but not on other scenarios. “It’s a recipe for chaos,” he said. “Our position is consistent and coherent – that there is a definition of sex, that is a biological definition. “What the respondents are saying is that there is a pick and mix approach. Sometimes, if it suits them, it means biological women. Other times, if it suits them, it means biological women plus GRC men. “How is anyone, without some coherent theory of statutory interpretation behind this pick-and-mix approach, supposed to apply the law? Scottish ministers are just all over the place.” Lady Haldane said she would issue her decision “in due course”.
