Court of Session to hear key trans case on Wednesday this week

By Lucy Ashton

The Court of Session in Edinburgh will hear arguments in a key trans equality case tomorrow (Wednesday).

Scottish Trans, part of LGBTI human rights charity Equality Network, will intervene in the case via a written submission.

Vic Valentine, Scottish Trans manager, explained: “The case is seeking to overturn guidance planned for the next Scottish Census in March. The guidance is provided for those who need it alongside the question asking “What is your sex?”, and tells trans men and trans women that they can respond with the answer that corresponds with how they live their lives, regardless of what is on their birth certificate.

“This guidance was also used in 2011, and has been tested extensively over previous years, with the wider Scottish public as well as trans people themselves. But a group called ‘Fair Play For Women’ want the guidance to be scrapped, because they object to the fact that it does not force trans men and trans women to answer with the sex recorded on their birth certificate.

“The outcome of this case will clearly affect trans people, and senior judges have granted Scottish Trans permission to submit a public interest intervention, in recognition of the fact that the promotion of equality is in the public interest.

“This means we have submitted evidence to the court about why we believe scrapping the guidance would be an unnecessary setback to trans equality and inclusion.

“Scottish Trans believes that if FPFW are successful, the change to the guidance they want to see would breach trans people’s human rights. Trans men and trans women who have not changed the sex on their birth certificates, but who have changed their name to one that reflects their identity, will be forced under threat of criminal penalty to disclose they are trans. The process for changing a birth certificate continues to be distressing and difficult, requiring a psychiatric diagnosis, extensive medical evidence, and a period of at least two years of having lived permanently as a man or a woman before you can apply. Many trans men and trans women will have updated all of their other identity documents such as their passport, driving licence and medical records, but not updated their birth certificate due to this difficult process.

“We also believe that the guidance as it stands is more likely to yield accurate and comparable Census data, than will be the case with the alternative guidance that FPFW seeks to impose – data that reflects the reality of our diverse society in 2022.

“We very much hope that the Court of Session will decide that the right thing to do is to continue to provide guidance to trans men and trans women that they can answer the Census in a way that reflects who they are and how they live their lives.

“It makes no sense to ask a trans man, who has male on his passport and driving licence, who is known as a man at work, and who uses spaces and services for men every day to tick ‘female’ on the Census just because that is what is on his birth certificate.

“We believe that trans men and trans women should be counted as who they are, today, just like everyone else.

“If this misguided case were to succeed, it would send a message to trans men and trans women that they aren’t counted equally in Scotland.”

Scottish Trans is represented pro bono by the Scottish Just Law Centre, part of the human rights legal charity JustRight Scotland; Kay Springham QC., pictured right,  is instructed as counsel.

Jen Ang, Director at JustRight Scotland says:  “We are supporting Scottish Trans to intervene in this case as part of our work to ensure that people living in Scotland who will be affected by potential changes to the law have the chance to explain to our higher courts how that change might impact them. As an organisation, JustRight Scotland aims to help people participate in legal processes, where the outcome of a court decision directly affects them.”

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