The Scottish Government has been accused of “misrepresenting” private conversations with the UK’s equality watchdog over the impact of the landmark Supreme Court ruling on the legal definition of woman.
Earlier this month, officials told For Women Scotland (FWS) that the Equality and Human Rights Commission (EHRC) had advised ministers to wait for the Commission’s final Code of Practice before making changes and to "not do anything in advance of that".
The comments earned a stinging rebuke from Baroness Kishwer Falkner, the Chair of the EHRC, who said the Commission had made it "clear" to civil servants that public bodies should not wait for updated guidance before acting on the judgment.
The peer said she was "very concerned that our conversations with officials appear to have been misrepresented".
FWS told The Herald they were stunned by the claims from officials: “At what point does this stop being ignorant incompetence and tip into wilful malpractice?”
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In April, the UK’s highest court ruled unanimously that a Gender Recognition Certificate (GRC) does not alter a person’s sex for the purposes of the Equality Act.
The judgment clarified that the terms ‘man’ and ‘woman’ in the legislation refer to biological sex, not acquired gender.
The EHRC then issued interim guidance in May related to trans people’s use of facilities including including changing rooms and toilets, and participation in sports.
It also launched a consultation on changes to parts of its code of practice for services, public functions and associations, which is due to conclude on June 30. The watchdog is due to publish the updated code later this year.
While First Minister John Swinney initially welcomed the “clarity” provided by the ruling, the Scottish Government has repeatedly said it is waiting for this further guidance before issuing new guidance of its own to Scotland’s public bodies.
However, the EHRC has repeatedly said that the ruling applies now and that "those with duties under the Equality Act 2010 should be following the law and looking at what changes, if any, need to be made to their policies and practices".
Baroness Falkner replied: "As you rightly point out, our public messaging has been that the law as set out by the Supreme Court is effective immediately.
"We have been clear in our public messaging and in direct conversations with duty-bearers, including the Scottish Government, that they should not wait for our guidance but should be seeking to update their policies and practices in the light of the new understanding of the law, taking their own specialist legal advice where necessary."
Earlier this week, FWS wrote to the Scottish Government’s Permanent Secretary Joe Griffin calling for a full investigation, saying it was "extremely concerning that statements made by a senior government official to a third party about EHRC advice have been directly contested by the regulatory body itself".
In a letter to the campaigners on Friday, seen by The Herald, Mr Griffin did not challenge FWS’s account of the meeting, and said his team would "revert in due course" with a fuller response.
He said the Government accepted the Supreme Court’s judgment and "acknowledges the EHRC statement that duty-bearers should not wait for our statutory Code of Practice for Services, Public Functions and Associations to be in place to review their policies to ensure they are complying with the law as now settled by the Supreme Court".
This, he added, "aligns with the approach the Scottish Government has taken since the judgment was issued in April".
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In Holyrood on Wednesday, Mr Griffin was pressed by SNP MSP Michelle Thomson to name any concrete action the Government had taken since the ruling. Mr Griffin said only that the "short life working group" had been established to prepare for implementation. He could not identify any specific changes made to guidance or policy.
Asked whether the threat of legal action — including two formal pre-litigation notices issued by FWS and Sex Matters — had prompted a rethink, Mr Griffin insisted that his advice remained that it was appropriate to wait for final EHRC guidance.
Susan Smith from FWS told The Herald: “After the rambling performance of the Permanent Secretary at committee, it was clear that the Scottish Government has done nothing to comply with the Supreme Court ruling.
“To justify this, the civil service has materially misrepresented the advice given by the EHRC. There is no justification for Ministers or civil servants to ignore the law, and these highly paid public servants and politicians should not sit on their haunches while grassroots women's groups with little power or funding explain to them the basic principles of law and professional standards. Scotland deserves better.
“To say we are shocked is an understatement. At what point does this stop being ignorant incompetence and tip into wilful malpractice?
“The only recourse open to us is to return to court. But given the Scottish Government resoundingly ignored earlier Court of Session rulings and is now seemingly intent on not implementing the UK Supreme Court judgment it appears largely futile and a further waste of taxpayers' money. Has the Scottish Government really put itself beyond the law?”
A Scottish Government spokesperson said: "The Scottish Government has been clear that we accept the Supreme Court judgment and that public bodies have a duty to comply with the law.
"Work is proceeding at pace to implement the ruling across Government. We have established a Short Life Working Group to ensure support and consistency in this.
"We expect public bodies to be analysing policies and procedures and this is what is happening. For example, Police Scotland this week issued interim guidance on searching, including searching of transgender people.
"The Scottish Government has also updated the Gender Representation on Public Boards (Scotland) Act 2018 guidance to reflect the judgment in relation to the definition of 'woman' under the Equality Act and this is now published online.
"The recent changes to the Equality and Human Rights Commission’s interim update demonstrate the complexity of this work and the need for extensive legal advice and consultation with stakeholders. We will continue to take this work forward at pace in a way which protects the rights of everyone in society.
"The Permanent Secretary has responded to For Women Scotland."
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