For Women Scotland Ltd v The Scottish Ministers

Abstract

For Women Scotland Ltd v The Scottish Ministers marked a watershed moment in the United Kingdom’s discourse on gender identity. However, as this paper argues, it sets a regrettable precedent for rights-based activism across the UK. It highlights how, due to the functioning of the Supreme Court, rulings on rights issues originating from devolved matters can negatively affect minority groups throughout the UK—even in nations beyond the one from which the devolved issue arose.

This paper outlines how the SNP’s proactive yet disjointed approach to gender identity—particularly in relation to the rest of the UK—adversely impacted the rights of minorities outside the Scottish Government’s remit. These consequences stemmed initially from the statutory guidance that gave rise to the case and extended through the progression of appeals to the Supreme Court. It will be argued that the case’s evolution—from advice issued by a devolved government to a ruling with nationwide precedent—reiterates longstanding concerns about the legal interplay between devolved and national jurisdictions, reminiscent of the West Lothian question. Activists, therefore, must consider how the actions of devolved governments may have far-reaching implications for rights across the entire country.