conferring it so as to be exercisable in that way) would be outside the legislative competence of the Parliament.”
22. The petition followed correspondence between the appellant’s solicitors and the Scottish Government Legal Directorate (“SGLD”). In a letter dated 1 June 2022 to the appellant’s solicitors the SGLD referred to the EHRC’s guidance entitled “Separate and single-sex service-providers: a guide on the Equality Act sex and gender reassignment provisions” as updated in April 2022 in the light of the decision of the Inner House which we described above. The letter quoted from a section of the EHRC guidance, which was headed “What the Equality Act says about the protected characteristics of sex and gender reassignment” and which stated:
“Under the Equality Act 2010, ‘sex’ is understood as binary, being a man or a woman. For the purposes of the Act, a person’s legal sex is their biological sex as recorded on their birth certificate. A trans person can change their legal sex by obtaining a Gender Recognition Certificate. A trans person who does not have a Gender Recognition Certificate retains the sex recorded on their birth certificate for the purposes of the Act.”
The letter continued:
“This EHRC Guidance confirms that a trans woman with a full GRC has changed their legal sex from their biological sex (male) to their acquired sex (female). Therefore that trans woman has the protected characteristic under the 2010 Act of their acquired sex (female). In terms of the 2018 Act this means that a trans woman with a full GRC must be treated as a woman, which is the position set out in the sentence in the Guidance on the 2018 Act that your clients disagree with.”
23. The Scottish Government’s revised position therefore is that a trans woman with a full GRC is treated by the EA 2010 as having the acquired sex of a woman and therefore is a “woman” in sections 11 and 212(1) of the EA 2010. They accept that the wording of the guidance set out in para 20 above is unfortunate in so far as it suggests that the inclusion of trans women with a GRC is “in addition” to biological women included in sections 11 and 212(1) of the EA 2010. On their case, therefore, the guidance would mean exactly the same without the third sentence.
24. As explained more fully below, a person who is aged at least 18 can apply for a GRC under the GRA 2004. Section 9(1) of that Act provides that when a full GRC is issued to a person the person’s gender becomes “for all purposes” the acquired gender so
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