Scottish Government threatened with legal action over single-sex spaces

The Scottish Government has been threatened with legal action if it fails to implement the recent Supreme Court judgement on biological sex in equalities law.

Sex Matters, which intervened in the For Women Scotland case against the government, has sent ministers a formal “letter before action”.

In April, the Supreme Court said the words “woman” and “sex” in the Equality Act 2010 refer to a biological woman and biological sex – a ruling which had implications for access to single-sex spaces.

Sex Matters argue the Scottish Government is failing to implement the ruling in the public sector, though ministers including John Swinney have said they accept the judgment and are waiting for further guidance from the Equalities and Human Rights Commission before taking the next steps.

“It is clear that taking no action at the moment is not a lawful option that is available to the Scottish Government,” the letter said.

“As a bare minimum, the Scottish Government is required – now – to review and amend its practices and policies and guidance to ensure that it is made clear that ‘single-sex spaces’ means single biological sex spaces.

“A failure to take that step will mean that the Scottish Government is deliberately choosing to act unlawfully.”

The letter urges the Scottish Government to comply with the UK Supreme Court ruling from April, which determined that the terms “woman” and “sex” in the 2010 Equality Act refer to biological women and sex.

Scottish ministers previously said the judgement will “inevitably” mean changes to the advice given to public bodies and health boards about single-sex spaces.

However, the Scottish Government has been waiting for fresh guidance from the Equality and Human Rights Commission (ECHR) before making any permanent changes.

This “proposed delay” has caused concern for the Sex Matters group.

Speaking to BBC’s Good Morning Scotland radio programme on Wednesday, the charity’s CEO Maya Forstater said: “The Supreme Court has made the law absolutely clear: men are male and women are female and both have a right to dignity and privacy in things like toilets and changing rooms as well as specialist services like women’s refuges.

“The Scottish Government is dragging its feet, it hasn’t changed its policies.”

Ms Forstater said the government had not implemented the ruling in schools or in its own facilities.

She said the government has 14 days to reply to the letter, adding: “All we’re asking them to do is put a simple statement on their website which says that their facilities are separated by sex and they also provide unisex facilities so everyone’s included.”

Responding to this threat from Sex Matters, social justice secretary Shirley-Anne Somerville said the Scottish Government “recognises the law” and is “working at pace right across Government” to make the necessary changes.

“We have civil servants working on our policies, procedures, and legislation that require change. That work has been undertaken straight from the Supreme Court judgement and continues to be undertaken,” Somerville told STV News.

“We’ve started that work, and it is continuing at pace right across government.”

Somerville said she is “very confident” that the work the Government is doing will look at every policy and procedure that needs to be changed following the ruling.

“If there are changes to be made, they will be made,” she said.

In response to Sex Matters’ concerns, a spokesman for the government told The Times: “The Scottish Government has been clear that we accept the Supreme Court judgment.

“We are reviewing policies, guidance and legislation potentially impacted by the judgment.

“This will prepare us to take all necessary steps when the regulator of the Equality Act 2010, the Equality and Human Rights Commission, publishes its revised statutory code of practice and associated guidance for services, public functions and associations. The EHRC is currently consulting on this revised code of practice.

“We will respond to any letter received in due course.”