Statutory Interpretation

in the ‘For Women Scotland’ case

Dr Adam Tucker

adam.tucker@liverpool.ac.uk

School of Law and Social Justice, University of Liverpool

My research

• parliamentary sovereignty –> involves an attempt by Parliament to legislate a solution to a high profile controversy (by conditioning the meaning of future legislation)…
• statutory interpretation –> … which is undercut in this case, by way of a badly flawed exercise in statutory interpretation

The case is wrongly decided. It overrides the democratic position - Parliament’s legislated decision on an issue of extreme disagreement - and the way it does so is very badly reasoned.

Some (dodgy) things I’ll take for granted

• court’s use of distinction between acquired and biological sex
• that this turns on s11 and s212(1) EqA s11
• the fairly easy way the court conceives of s9(3) coming into play
• the very narrow context, just GRC holders

Things I’ll take for granted - dodgy, stems from the Scot gvt’s “therefore”, at [20] - except I’ll say - it’s a case about the vanguard of trans rights, the most protected status legally possible

I will cover

• Court’s Interpretive Approach
• The Court’s Applied Interpretation
  • The “unity” argument
  • The “specific interprations

Interpretive approach is right! The application (unity, specific interpretations) is wrong

The Interpretive Approach

Two premises

1. interpretation of “woman” (etc) is not ordinary statutory interpretation - it must be conditioned by GRA 2004. This is a “strong” rule (nb - for “all purposes”)

2. it has a rule/exception structure: an interpretation whose consequences are not rule/exception is almost certainly wrong

2. is really possible only via the conclusion that GRA has been impliedly repealed.

In the court’s words…

The principal question which the court addresses on this appeal is the meaning of the words which Parliament has used in the EA 2010 in legislating to protect women and members of the trans community against discrimination. Our task is to see if those words can bear a coherent and predictable meaning within the EA 2010 consistently with the Gender Recognition Act 2004 (“the GRA 2004”). [2]

(“consistently with”)

In the court’s words…

The question for the court is a question of statutory interpretation; we are concerned with the meaning of the provisions of the EA 2010 in the light of section 9 of the GRA [265]

nb misquotes 2 slightly = “in the light of”

In the court’s words…

the strongly worded rule in section 9(1) of the GRA 2004 must be taken to apply to the EA 2010 by virtue of section 9(2) unless there is “provision made” in the EA 2010, that disapplies or negates the effect of section 9(1) [157]

(= strongly worded rule / exception conceptualisation)

In the court’s words…

Section 9 (set out at para 75 above) provides both for a rule that on receipt of a GRC “the person’s gender becomes for all purposes the acquired gender” (subsection (1)) and also a carve out from the operation of that rule [94]

(= the rule /carve out conceptualisation)

Those two premises (again)

1. interpretation of “woman” (etc) is not ordinary statutory interpretation - it must be conditioned by GRA 2004. This is a “strong” rule (nb - for “all purposes”)

2. it has a rule/exception structure: an interpretation whose consequences are not rule/exception is almost certainly wrong

2. is really possible only via the conclusion that GRA has been impliedly repealed.

The Court’s Interpretation

The approach restated/mistated

Our task is to ascertain the meaning of the words “sex”, “woman” and “man” used in the EA 2010, read in their particular context and in light of the wider context and purpose of the anti-discrimination provisions in the EA 2010. [166]

Where is the GRA? It just…dropped out!

The Court’s Interpretation - 1 (The “unity” argument)

A “presumption” - not rebutted

The general rule, as we have said, is that words or terms used more than once in the same legislation are taken to have the same meaning whenever they appear, and the general purpose of an interpretation provision is to fix the meaning of such a word or term throughout the legislation in question. This presumption can be rebutted [176]

the presumption (which has not been rebutted) 195

(“general rule…can be rebutted”) (“rebuttable presumption not rebutted”)

Rebutting the presumption

• this is a very weak presumption anyway, doing an awful lot of work!

• thec does not even conceive of s9 as even a possible rebuttal (!)

P legislated for variable meaning. Completely absent from the analysis.

The argument actually runs on 2 parallel tracks - the “throughout” track, and the “s212” track but the issue is the same (twice)

Consequence - no actual engagement with the interpretation at issue in the case. Licence to interpret other, otherwise irrelevant provisions and read the outcome across to forcibly determine the meaning in the provision which was actually in question.

What work is s9 doing here? NONE What would ought it to do: It should be a reason for disunity (weak version); it should prevail (strong version, my version)

The Court’s Interpretation - 2 (The “specific interpretations”)

General approach…

We note only that the effect of the rule in section 9(1) on the very many statutes referring to men and women, whether enacted before or after the GRA 2004, must be carefully considered in the light of the wording, context and policy of the statute in question. It is likely to be unhelpful for the coherence of the law to impose a stringent test for the application of section 9(3) (108)

Nb - GRA doing no work at all (except existing, in the past!)

I’ll just focus on one type of argument. But it’s a big one, like a leitmotif. The court argues - again, and again - against “certificated sex” readings of “woman” because of the way they create heterogenous groupings, or distinguish between transwomen with a GRC and transwomen without a GRC

Sched 3, para 26 (separate services)

it would be difficult or impossible for the service-provider to distinguish between trans women with and without a GRC because, as we have explained, the two groups are often visually or outwardly indistinguishable…it is difficult to see how they can then justify refusing to provide those services also to biological men and who also look like biological men [213]

(on Schedule 3, para 26 = provision of separate services where less effective / proportionate means of achieving legitimate aim.)

BUT - both these distinctions are inherent in s9! That’s precisely what Parliament in 2004 legislated.

Schedule 12 (Single-sex higher education)

if sex means certificated sex, the exception from the sex discrimination provisions for single‐sex higher education institutions would not allow such institutions to be limited to girls and women, given the absence of any separate exception for gender reassignment discrimination. We can see no rational basis for a certificated sex reading that would oblige such institutions to admit transsexual members of the opposite (biological) sex with a GRC, whose biological sex is likely to be readily identifiable, whilst excluding others without a GRC, whose circumstances may be materially indistinguishable. 228

(On Schedule 12= single-sex higher education)

The rational basis - which requires the court to presume such a reading is s9

Sport

Even if the gateway condition is established, the approach to the group of trans sportswomen who are potentially to be excluded would differ on a rationally unconnected basis: whether or not they have a paper certificate [235]

(On s195, Sport)

PSED

If the purpose of the positive action measure is to increase representation on public boards of women (with their shared experience of disadvantage based on sex and overcoming such disadvantage), a certificated sex approach changes the group to be represented. It means that those entitled to be considered for this scheme include biological males who have GRCs but it excludes biological females who have GRCs. This is an irrational approach 241

(On PSED / positive action provisions by NB also prompts - this - the ?only actual engagement with the provision in question in the case!)

Parliament created those groups!

Equal Pay

a trans man with a GRC (legally male but biologically female) cannot rely on a male comparator to bring an equal pay claim but can do so if he does not have a GRC (and vice versa). That is an odd divergence and is unlikely to have been intended by Parliament. [262]

P created that divergence, legislated that dividing line!

The Summary Version

Interpreting “sex” as certificated sex would cut across the definitions of “man” and “woman” and thus the protected characteristic of sex in an incoherent way. It would create heterogeneous groupings. [265]

The interpretation favoured by the EHRC and the Scottish Ministers would create two sub-groups within those who share the protected characteristic of gender reassignment, giving trans persons who possess a GRC greater rights than those who do not 212 xxi

summarising specific interpretations Heterogeneous groupings, and dividing line at GRC are a necessary consequence of what P legislated in 2004.

And (for good measure) a generalised one…

We can identify no good reason why the legislature should have intended that sex-based rights and protections under the EA 2010 should apply to these complex, heterogenous groupings, rather than to the distinct group of (biological) women and girls (or men and boys) with their shared biology leading to shared disadvantage and discrimination faced by them as a distinct group. [172]

And for good measure, a general statement of this (I find it hard to read though - is it generalised? anticipating the conclusion which is coming later?). It sets up (betrays) an inclination to adopt a certain reading though!

Basically?

• What work is s9 doing here?
  
• What work should it do?

• NONE
• Well, at the very least provide A reason for hetereogenous groupings and GRC as dividing line (weak version); prevail (strong version - I’m not necessarily endorsing that, I suspect after further thought I would - and Parliament has in any event instructed that outome be the rule, not the exception)