terms of their own protected characteristic of sexual orientation. Even if this is true (which is doubtful) it does not begin to address the chilling effect a certificated sex interpretation appears to have on the ability of lesbians to associate in lesbian-only spaces. The idea that to do so they should seek instead to restrict membership on the basis of “some shared philosophical belief regarding the immutability of sex” (as Ms Crawford KC suggested in argument) demonstrates the incoherence of the Scottish Ministers’ position.
209. In short, the core provisions to which we have referred, which refer to sex, man or woman, are not capable of being read fairly and consistently with the terms of section 9(1) and (2) of the GRA 2004 without defeating their purpose and meaning. The definition of these terms contained in section 212(1), when applied in particular to section 11 (the protected characteristic of sex which is at the heart of this case) is not capable of being interpreted on the basis of certificated sex. Rather, sex has its biological meaning throughout this legislation: “woman” always and only means a biological female of any age in section 212(1). It follows that a biological male of any age cannot fall within this definition; and “woman” does not mean or sometimes mean or include a male of any age who holds a GRC or exclude a female of any age who holds a GRC. To reach any other conclusion would turn the foundational definition of sex on its head and diminish the protection available to individuals and groups against discrimination on the grounds of sex. As we shall explain below, in relation to sex discrimination, an individual will still be entitled to protection against discrimination on the grounds of sex on its biological meaning. Thus, the objective of non-discrimination between the sexes is maintained, while at the same time protecting individuals with a GRC from non-discrimination and without seriously undermining the intention behind the GRA 2004.
(18) Meaning and workability of other provisions
210. We have so far concentrated on the core provisions of sections 7, 11, 12, 13(6) and 17 to 18 of the EA 2010. There are several other provisions that we must address because, contrary to the reasoning and conclusions of the Inner House, they too demonstrate that an interpretation of sex based on certificated sex would render the EA 2010 incoherent and unworkable. In other words, the proper functioning of these provisions depends on a biological interpretation of sex.
(i) Separate and single-sex services
211. Part 3 of the EA 2010 regulates the provision of services and public functions, and we have set out above the terms of the prohibition in section 29 (making it unlawful, among other things, to discriminate in the provision of a service or the exercise of a public function). Schedule 3 contains exemptions from this general prohibition. As we shall explain, some of these permit what would otherwise constitute gender reassignment discrimination but make no similar provision for persons issued with a full GRC. Other
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