80. Schedule 6 to the GRA 2004 made amendments to the SDA 1975, in particular amendments to sections 7A and 7B (inserted by the 1999 Regulations). Neither Schedule 6 nor any other provision in the GRA 2004 made any express amendment to the definition of “man” and “woman” in the SDA 1975.
81. As to what one can glean from the provisions of the GRA 2004 about the intended effect of section 9(1) on the scope of the SDA 1975, the Scottish Ministers drew the court’s attention to para 27 of the Explanatory Notes. The notes give as an example of the effect of section 9(1), that a trans man with a GRC would be entitled to protection from discrimination as a woman under the SDA 1975. In our view, this is a good illustration of why the use to which the courts should put explanatory notes is limited to the context of the legislation and the mischief to which its provisions are aimed: see Lord Steyn in R (Westminster City Council) v National Asylum Support Service [2002] UKHL 38, [2002] 1 WLR 2956, para 5 and the passages from R (O) cited earlier. There is nothing in the notes to suggest that the department had undertaken the kind of detailed analysis of the effect of such a change on the operation of provisions of the SDA 1975, as amended by the 1999 Regulations, that we have undertaken in the following sections of this judgment before giving that as an example of the effect of section 9(1).
82. The Scottish Ministers make a different point on the scope of the amendments made to the SDA 1975 by Schedule 6 to the GRA 2004. The amendments made to sections 7A and 7B disapplied the exceptions for GOQs and supplementary GOQs in those sections if the discrimination was against a person whose gender had become the acquired gender under the GRA 2004. The effect of the amendments made by Schedule 6 is to add a provision removing the exception – so discrimination is not permitted – where the discrimination is against a person whose gender has become the acquired gender under the GRA 2004. In our judgment these provisions say nothing about the intended effect more generally of section 9(1) on the meaning of the terms “man” and “woman” in the SDA 1975. In any event, the provisions regarding GOQs in sections 7A and 7B as amended were not carried forward into the EA 2010. Schedule 9 to that Act made fresh provision for GOQs.
(ii) Guidance and case law on applications for gender recognition certificates
83. The criteria in section 2 and the evidence requirement in section 3 of the GRA 2004 have been the subject of guidance and some case law. There are several authorities which describe the condition of gender dysphoria which must be diagnosed before the applicant can apply for a GRC. In R (C) v Secretary of State for Work and Pensions [2017] UKSC 72, [2017] 1 WLR 4127 (“R (C) v DWP”), Lady Hale PSC described gender dysphoria as “the overwhelming sense that one has been born into the wrong body, with the wrong anatomy and the wrong physiology”: para 1. She referred also to the transgender person’s “deep need to live successfully and peacefully in their reassigned gender, something which non-transgender people can take for granted”.
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