Gender recognition certificates should be viewed the same as adoption papers - Scottish Government lawyer

The Supreme Court was also told it is up to Parliament rather than the courts to decide what legal protections are given to trans men who become pregnant. Ruth Crawford KC was putting forward the Scottish Government’s arguments on Wednesday in a long-running battle over the legal definition of a woman.

This comes after the Scottish Government issued guidance stating that a trans man who has a gender recognition certificate (GRC) could be classed as a woman for the purposes of the Gender Recognition on Public Boards (Scotland) Act 2018.

This is a piece of legislation that mandates 50 per cent female representation on public boards.

Ms Crawford told the court that a person with a GRC was “recognised in law” as having changed sex. She also suggested a trans person obtaining this certificate should be viewed in the same way as someone adopting a child.

Ms Crawford said: “We submit that a gender recognition certificate and the consequences of that are no more a legal fiction than is adoption.

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“We cite Scottish adoption legislation that an adopted person is treated in law as the child of the adopters and no-one else. Both adoption and the legal recognition of changing sex have far-reaching consequences.”

The legal argument was made after Aidan O’Neill KC, who is representing the campaign group For Women Scotland (FWS) that brought forward the legal action, told the court “sex is a biological fact” and that “certificated sex is a legal fiction”.

Ms Crawford said the original wording of the Gender Recognition Act 2004 states “the person who has become the sex of their acquired gender is entitled to the protections of that sex”, adding trans men who receive a gender recognition certificate would have to give up the protections of their original female sex.

However, the lawyer went on to say it was up to Parliament rather than the courts to decide what protections are afforded to trans men who become pregnant.

On Tuesday, Mr O’Neill raised the scenario that trans men who receive a GRC will lose certain women’s rights over maternity support and protections if they become pregnant.

But Ms Crawford said trans men should not get pregnant as they have legally pledged to live as a man until death after receiving a GRC.

This comes just hours after First Minister John Swinney told journalists he does not believe it is possible for men to become pregnant.

Ms Crawford also noted 8,464 GRCs had been issued as of June, which is about 0.001 per cent of the adult population, or 420 a day.

She said this number was “insignificant” and “goes some way to allay any concerns” about the impact the legislation would have on equality laws.

Ms Crawford said the “inevitable conclusion” of the FWS challenge, if successful, is that trans women with GRCs would “remain men until death for the purposes of the Equality Act”.

A verdict on this legal debate will likely not be reached until spring 2025.