By GEORGIA EDKINS, SCOTTISH ASSOCIATE EDITOR FOR DAILY MAIL AND THE MAIL ON SUNDAY
The SNP Government faces ANOTHER legal challenge after failing to update public sector transgender guidance in the wake of a watershed court ruling.
In April, John Swinney’s government was left humiliated when the UK’s highest court ruled against it on the legal definition of a woman.
It stipulated it was ‘biological sex’ which determines a person’s rights under the 2010 Equality Act, not gender choice or a gender certificate.
The ruling meant women-only spaces such as changing rooms are off-limits to biological males who identify as women.
Despite the ruling, SNP ministers have so far failed to update guidance on single-sex spaces for the public sector.
They have also repeatedly claimed they are waiting to see the final position of the European and Human Rights Commission (EHRC) before going ahead with any changes.
Now, the group behind the successful Supreme Court challenge, For Women Scotland, have said they are speaking to lawyers about taking the Scottish Government to court AGAIN to force them into action.
The organisation’s Susan Smith told a fringe event at the Scottish Conservative conference in Edinburgh yesterday: ‘We’ve spoken to the Scottish Government.
The group behind the Supreme Court gender case are considering further legal action
The watershed judgement stipulated it was ‘biological sex’ which determines what a woman is
‘They are still reluctant to withdraw things like the transgender guidance for schools, which was unlawful even before this Supreme Court ruling.’
She added: ‘There’s resistance within organisations, and so we are possibly going to have to go back to court in order to get some of the government policies, especially policies of prisoners and schools, sorted out.’
Speaking to reporters later, she said: ‘We really do need some action, and they [the Scottish Government] are telling us they have to wait for the EHRC revised guidance and we don’t believe this is true.’
Ms Smith also said statements by Baroness Faulkner and Akua Reindorf KC of the EHRC had made the situation clear.
She added: ‘And in fact, obviously Baroness Faulkner and Akua Reindorf KC and others have said: “No, you need to start to act now.”
The Supreme Court ruled against the Scottish Government on the legal definition of a woman
Asked if Ms Smith had a timeline for possible legal action, she said: ‘No, we’re still talking through things and talking through things with our lawyers as well. We haven’t got anything like that but we are exploring options.’
Ms Smith suggested the delay could be because Scottish ministers fear if they change the guidance, they face a legal challenge from transgender activists who were unhappy with the clarification over equalities law given by the Supreme Court.
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At the centre of the successful For Women Scotland challenge against the Scottish Government was the question of whether a ‘woman’ could include trans women in law.
The legal fight was sparked by the Scottish Government’s Gender Representation on Public Boards Act, which aimed to get more women onto public bodies, but could include those who had been born men.
Five justices handed down a unanimous verdict against the Scottish Government’s position and said sex was ‘binary’ and a person was ‘either a woman or a man’.
It sent shockwaves across Scotland’s public sector organisations including the prison service.
The Scottish Prison Service (SPS) has 16 transgender inmates, according to latest figures, with current rules allowing trans women to be housed in the female estate.
Meanwhile The Mail on Sunday has told how a number of councils in Scotland have failed to adapt schools in line with the ruling.
For Women Scotland said the Scottish Government needs to take action in light of the ruling
That is despite parents winning a separate legal fight over single-sex facilities at the new £16.6 million Earlston Primary School in Berwickshire.
Judge Lady Ross, KC, said she would issue a court order to make legal obligations on all Scottish state schools clear.
Ms Smith said: ‘The Scottish Government tell us that the Scottish Prison Service set their own policy, that they’re an arms length organisation, but any case would be taken against the Scottish ministers.
‘So I think we need to start to step up and take a bit of responsibility, because these things are under their remit.
‘And we’ve heard that they can’t do anything about the NHS guidance, they can’t do anything about the prisons…actually, I’m starting to think, well, what is the point of the Scottish government if they have no responsibility for any of these things that actually they do control?’
A Scottish Prison Service spokesperson said: ‘We have received the Supreme Court’s judgement and are considering any potential impact it may have.’
A Scottish Government spokesman said: ‘As the judgment relates specifically to the guidance issued under the Scottish Government’s Gender Representation on Public Boards 2018 Act and stated that it was incorrect in relation to the definition referred to of “woman” under the Equality Act, the guidance has now been removed and will be updated shortly to reflect the judgment.
‘The Scottish Government has already begun work on implementation. We have established a Short Life Working Group to ensure support and consistency across Government.’
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