The Scottish Court of Session has determined the sex of people assigned at birth should not be conflated with the gender they identify as. “In relation to sex discrimination, an individual will still be entitled to protection against discrimination on the grounds of sex, although when they have a GRC (gender recognition certificate) it will be in respect of their acquired sex, not the sex attributed at birth,” said Scottish Court of Session Justice Leeona Dorrian in a Wednesday ruling. “A person with a female birth certificate but a male GRC will be treated as a man for this purpose; and a person with a male birth sex but a female GRC will be entitled to the protection afforded to women under Section 11.” Dorrian said the interpretation she has identified will meet the objective of non-discrimination between the sexes and the intentions behind the Gender Recognition Act (GRA) being transgender people should be able to live how they please. A different approach could undermine the intention behind the GRA. As all parties agree and is obvious, the protected characteristic of sex is not the same as gender reassignment. Applicant For Women Scotland (FWS) asserted gender is limited to Section 7 of the Equality Act (EA) and that this is different from sex in Section 11. While asserted by FWS, Dorrian said it is not the case gender is in Section 7 and sex is in Section 11. Sex and gender are terms often interchanged within the EA. Section 7 states the protected characteristic of gender reassignment arises when a person will be “changing physiological or other attributes of sex.” A person with a GRC will have the protected characteristic of gender reassignment and they will have a separate one for sex because they are identifying as a new one. She went on to say it is impractical and necessary for the court to attempt to examine every section and every part of the GRA to determine whether in some circumstances it might be necessary to adopt a different interpretation of sex. Since she is mindful of consistency and practicability, she offered to look at some examples. One example she offered was the Scottish military having a requirement soldiers not be transgender men. She admitted it would legal to exclude a person with a male GRC if it can be shown to be proportionate. Another example she looked at was a person with a GRC having the right to access single-sex services of their acquired sex. She said there is no basis for excluding them, whereas a person with a GRC in the opposite sex could be excluded because the services are not meant for them.FWS pointed to the definition of women contained in Section 212 of the EA to support its argument, as it is about pregnancy and maternity. However, she said this is not as significant a matter as it is pointing out. Since all women cannot become pregnant or give birth, she said it is not sex discrimination. She called it “a specific and discrete form of discrimination separate from that which is addressed to the protected characteristic of sex; and the basis of it is not that the individual is a woman, but that she is pregnant, has given birth or is breastfeeding.” For the purposes of Section 11, she found people possess the protected characteristic of sex according to the terms of their GRC. For the purposes of Section 11, those without a GRC retain the sex they were born with. Dorrian concluded by saying a person with a female GRC comes within the definition of woman under Section 11 of the EA, and the guidance from the GRA is lawful. “The reclaiming motion is refused,” she said. Former Scottish first minister Nicola Sturgeon embarrassed herself in January when she said transgender women are not women when it comes to incarceration. READ MORE: WATCH: Scottish first minister says trans women are women except in prisons“Trans women are women, but in the prison context, there is no automatic right for a trans woman,” said Sturgeon..The video starts off with Channel 4 News correspondent Ciaran Jenkins asking Sturgeon if all trans women are women. She said that is not the point she is dealing with.
