Has Holyrood misinterpreted the Supreme Court ruling on sex?

The Herald Scotland

6 days ago

Whenever the Scottish Government is asked how it is responding to the Supreme Court's ruling on the legal definition of 'woman', the answer is usually some variation of: we're waiting for the EHRC.
The Equality and Human Rights Commission is due to publish its updated statutory Code of Practice — a sort of authoritative instruction manual on applying the Equality Act — later this year.
But the problem for service providers, public bodies and associations is that while they are in this holding pattern, the law already applies.
Read more from Unspun:
As a spokesperson for the EHRC told me the other week: 'As we have said publicly since 16 April, the law — as set out in the Supreme Court's judgment — is effective immediately. Those with duties under the Equality Act 2010 should be following the law and looking at what changes, if any, need to be made to their policies and practices. Where necessary, duty-bearers should take appropriate specialist legal advice.'
That is essentially what the Scottish Parliamentary Corporate Body (SPCB) did earlier this month, when it adopted an 'interim' position and confirmed that male and female toilets and changing facilities at Holyrood would be either designated by biological sex or gender neutral.
That move made Holyrood something of an outlier. At Westminster, Stormont and the Senedd, existing policies remain unchanged.
Over the weekend, 16 MSPs and 29 Holyrood staffers added their names to an open letter to Presiding Officer Alison Johnstone, coordinated by the Good Law Project, challenging the SPCB's decision.
Among the signatories are former ministers Elena Whitham and Emma Roddick, Liberal Democrat leader Alex Cole-Hamilton, Scottish Greens co-leaders Patrick Harvie and Lorna Slater, and former Labour leadership contender Monica Lennon. The letter was also signed by two of Nicola Sturgeon's staff — though not by the former first minister herself.
The letter argues that the SPCB has misinterpreted the Supreme Court ruling and that the change in policy is 'deeply invasive' and raises 'immediate questions about enforcement'.
Curiously, one of the MSPs criticising the decision is Green MSP Maggie Chapman — who, er, also happens to be one of the five members of the SPCB.
To be fair, the SPCB's own paper and equality impact assessment make clear they had little choice.
Parliament's Deputy Chief Executive, supported by a small advisory group, warned MSPs that as both an employer and service provider, the SPCB is legally required to offer separate male and female facilities based on biological sex under the Equality Act 2010 and workplace safety regulations.
Failing to do so, the MSPs were warned, could expose Holyrood to legal challenge. Redesignating those spaces accordingly — while also expanding gender-neutral options — was deemed the most defensible and inclusive course of action.
But if that is the legal advice going to the SPCB, it stands to reason that other Scottish public bodies are hearing the same.
Nevertheless, most are waiting for the Scottish Government — who are waiting for the EHRC.
A cynic might suggest this is about political cover. Waiting for the regulator to make the call allows the Government and other bodies to avoid a potentially toxic row. They are not making the change — they are just following orders.
But in the meantime, there is confusion. The Scottish Secondary Teachers' Association has warned that schools 'do not have the luxury of waiting for updated guidance' and is urging the Government to issue clarity now.
And that is the problem at the heart of this: the law remains the law, and while MSPs and their employees sign open letters, the people charged with implementation are trying to navigate the consequences.