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Still working through the judgment from the FWS appeal but first thing to note is that in my view this confirms that the Gender Recognition Reform (Scotland) Bill would change the operation of the Equality Act and so would modify the law as it applied to reserved matters.
If sex in the Equality Act is taken to mean biological sex unless modified by a GRC, then changing the process by which you can get a GRC modifies the operation of provisions relating to sex in the Equality Act.
An analogy here would be if there was U.K. legislation that gave welfare benefits or social care to people who meet certain criteria and Scotland introduced legislation changing the criteria for qualifying for these benefits. That would modify the operation of the benefit scheme.
This wasn’t expressly stated in this judgment bc it wasn’t the legal Q at issue but this decision means that one potential hurdle in the s35 judicial review has been avoided. If the court here had held that sex isn’t modified by a GRC the s35 case would have been more complex
Another point of significance here in this judgment is the upholding of what has long been the clear position that if you don’t have a GRC you are legally considered to be your biological sex and have no right to use single sex services intended for the opposite sex.
I might write a longer thread on the judgment when I’ve finished reading though it again in detail.
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