For Women Scotland Ltd v Scottish Ministers

Question

Asked by

To ask His Majesty’s Government which government departments have not yet fully implemented the Supreme Court judgment in For Women Scotland Ltd v The Scottish Ministers.

My Lords, the Supreme Court ruling that the noble Lord’s Question refers to brings clarity for women and service providers. We expect all duty bearers to follow the law and to seek legal advice where necessary, and that includes government departments. Departments have been reviewing and updating their policies and guidance following the Supreme Court ruling. This includes the new internal Civil Service guidance that has been shared with departments. We will ensure that any policies and guidance are consistent with the draft code of practice for services, public functions and associations that was laid in Parliament before the Recess.

I thank the Minister for her reply. Over the last year, Government Ministers have repeatedly told this House that all service providers must get on with implementing last year’s Supreme Court ruling, but it seems that the NHS did not get the memo. The cases of Sandie Peggie and the Darlington nurses show that the NHS still expects female nurses to undress in front of males. Will the new Health Secretary be any better than the previous one at getting the NHS to obey the law?

Of course it is the case that the NHS should be obeying the law, in terms of both the provision of goods and services, which this code covers, and employment practices, on which further guidance will come from the EHRC. On the provision of the services that the NHS is responsible for, it is of course thinking carefully about both the ruling and the guidance, and it will be coming forward with more guidance in the near future.

My Lords, I remember Meta Ramsay as an outstanding public servant who was as kind as she was courageous.

After numerous Lords Questions and a year-long review, we are left with the controversial code essentially unchanged. I ask, in sympathy with those who feel adversely affected and those who must implement it, how is a local GP surgery or a village hall to navigate proportionality, when three recent court decisions seem to point in different directions? Is this practically possible, or is it time to legislate?

I believe it is practically possible. One of the reasons for taking the time, both in government and in the EHRC, is to make sure that the code that has now been published provides practical and sensible examples about how the law can be implemented. If providers take the time to look at the code, they will see exactly that type of supportive and common-sense advice about how to implement what is and has been the law and was simply clarified by the Supreme Court ruling.

My Lords, now that the Minister has agreed that government departments need to conform to the Supreme Court ruling, will she be able to tell the House what amount of public funds has been expended since the Forstater judgment of 2021 on religion and belief by government departments in litigation and settlements that deal with civil servants bringing cases against government departments? If she does not have that figure to hand, could she write to me telling me what it is?

Yes, I am happy to do that.

My Lords, I draw the Minister back to the noble Lord’s original Question, which was about which government departments are not complying with the Supreme Court’s judgment. I asked the noble Lord, Lord Collins, twice in this House to confirm that all government departments were fully complying with the Supreme Court judgment, and he confirmed twice that, absolutely, they all were doing so. Is the Minister able to confirm that and provide the evidence that supports that statement?

Of course it is the case that government departments need to comply with the law, and they are working to ensure that they are complying with the law.

Oh!

My noble friend has been clear, and I have been clear. The noble Lord might want to suggest that we have not been, but I am afraid I think that we have.

My Lords, will the Minister tell the House what the Government propose to do to restore the legitimate expectation of those who obtain gender recognition certificates? Section 9 of the 2004 Act says that a person’s gender

“becomes for all purposes the acquired gender”

in law, an expectation which has been smashed by the proposed guidance.

The noble Lord will know that the particular issue he identifies was the subject of the ruling in the For Women Scotland judgment. That was an interpretation of the law as it had always stood; it is clear, and the code is now enabling providers to deliver on the basis of that. But it is also the case, of course, and in that ruling it was made clear, that the safeguards for people in the Equality Act on the basis of gender reassignment remain, and discrimination and harassment against people on that basis remain unlawful. The code makes that clear, in fact, and is helpful in delivering it.

My Lords, given that the Government’s own impact assessment on the guidance notes the real-world problems that will still impact some women and trans individuals, by what measures will the Government be evaluating the impact of these challenges and whether the guidance actually meets its aims and ambitions?

Given the number of questions and the debate there is about this issue, I do not think there is anybody who does not think that some difficult and contested issues have had to be dealt with along the way. But the publication of the code, and the work of the EHRC to deliver it, provide, as the commission has said it attempted to, some more exemplification about how providers can abide by the law. Most importantly, it can ensure that everybody’s rights under the Equality Act, including their dignity and their ability to access services, are upheld.