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.
242. Moreover, the different needs of and disadvantages faced by transsexual people (whether or not they have a GRC) can – and in the case of the PSED must – be considered separately without conflating these distinct protected characteristics. To do otherwise is detrimental to both groups. Indeed, a certificated sex reading of sex suggests that the needs and interests of transsexuals without a GRC are different from those with a GRC, though their circumstances may often be indistinguishable. In addressing the need for greater representation of women on public boards, it is hard to see what possible difference it could make to the board in question whether the trans woman in question does or does not hold a GRC.
243. It is no answer to these points to say (as the Scottish Ministers do) that there will always be members of a class who do not conform to the characteristics of the majority of a class and that it does not follow that they are not to be taken as falling within that class and entitled to the benefits to be afforded to it. This misses the point. The groupbased rights and duties are concerned with identifying the shared needs and disadvantages that affect women as a group, or trans people as a group. If the first group were to include men and the second group people who are not trans people, it is unlikely that they would have the same needs or share the same disadvantages that would justify their inclusion in the particular group. Equally, the fact that some members of the group do not wish to benefit from a particular measure designed to reduce, say under-representation of that group, does not mean that they do not share the same needs and disadvantages as the group in question.
244. Accordingly, a certificated sex reading of sex in the EA 2010 is not necessary to meet its purpose in relation to the PSED or positive action provisions. On the other hand, such a reading does both undermine the purposes of those provisions and impede clarity of analysis of the different needs of groups with different protected characteristics under them. These provisions deal with potentially conflicting group interests in the field of equality and discrimination law in which Parliament has chosen to protect sex and gender reassignment as distinct protected characteristics. They do not concern individual rights that affect how transsexuals are treated in their general lives, or their ability to bring claims for any form of unlawful discrimination.
(vii) Armed Forces
245. Schedule 9 paragraph 4 of the EA 2010 provides:
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