Does international human rights law permit affirmative action schemes for women to be extended in scope to include trans-identifying biological males?
A note on CEDAW, the Supreme Court and For Women Scotland v Scottish Ministers
Abstract
The legality of including biological males who assert transgender identities within the scope of measures to promote the representation of women on public boards is under consideration by the UK Supreme Court in the case of For Women Scotland (FWS) v Scottish Ministers. According to the analysis presented here, the appeal as heard by the Supreme Court discloses a contravention of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), a UN treaty to which the UK has been a party since 1986. Following the Introduction (Section 1), this note outlines the background to the case of For Women Scotland (FWS) v Scottish Ministers and the issues before the Supreme Court on appeal (Section 2). Section 3 analyses relevant aspects of the UK’s international legal duties as a state party to CEDAW. First, it considers the meanings of ‘woman’ and ‘discrimination’ under CEDAW (3.1). Next it addresses the duties of states parties under CEDAW to secure women’s substantive equality with men and concerning ‘temporary special measures’ to secure women’s equal representation with men (3.2); in relation to gender parity, including on public boards (3.3); the meaning of ‘gender’ under CEDAW, and the related issues of gender-neutral measures and gender stereotypes (3.4); and intersectional discrimination (3.5). Section 4 concludes.
Although CEDAW was not raised in proceedings before the Supreme Court, its putative breach is significant for reasons including the following:
· The UK has assumed an international legal duty under CEDAW to uphold women’s human rights against sex discrimination to which national courts and devolved entities including the Scottish Parliament and Scottish Government must give effect
· Although inconsistency with international treaty obligations does not automatically entail illegality as a matter of domestic law, the UK Supreme Court has relied on international legal rules as an aid to interpretation of UK statutes and in holding the actions of UK public authorities unlawful
· If the Supreme Court rejects FWS’ appeal, the specific measures complained of by FWS and/or the wider statutory framework comprised by the Equality Act 2010 and Gender Recognition Act 2004, may be challengeable at the international level
· The UK is obliged to secure compliance with CEDAW in any revisions to the Equality Act 2010, Gender Recognition Act 2004 or other aspects of the statutory framework or subordinate measures relating to women’s equality with men that may be required or otherwise prompted by the Supreme Court’s decision, so that it is important that the UK’s obligations under CEDAW are properly understood
· The question of whether the extension of the scope of sex discrimination laws and affirmative action measures for women so as to include biological males asserting transgender identities is compatible with CEDAW has implications for the one-hundred and eighty-five (185) other states parties to CEDAW besides the UK
· A finding of inconsistency with CEDAW may be material to the evaluation of the issues at hand under other human rights treaties, including the ECHR.
1. Introduction
In November 2024, the UK Supreme Court heard argument in For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent). This case originated in measures adopted by the Scottish Government to increase the number of women appointed to the boards of Scottish public bodies. The appellant, For Women Scotland (FWS), is a non-governmental organisation (NGO) that campaigns for women’s equality and human rights. In light of this purpose, FWS did not object to the Scottish Government’s ‘positive action’ goal per se. Rather, the target of FWS’ complaint was the means deployed by the Scottish Government which, it claimed, would secure it.
According to official guidance issued by the Scottish Government, ‘woman’ for the purposes of its affirmative action scheme, was to be interpreted as including, besides biological females, biological males in possession of a ‘gender recognition certificate’ (GRC), i.e. a legal document that can be obtained by individuals, having satisfied certain conditions and which, under the terms of the Gender Recognition Act 2004, as heretofore understood, entitles them to be treated in law as female.
The case put for FWS before the UK Supreme Court was that the Scottish Government’s guidance, in seeking to define ‘woman’ so as to include some biological males (i.e. those possessing gender recognition certificates) conflicts with the meaning of the word ‘woman’ as it appears in other UK legislation, in particular, the UK’s main equal treatment statute, the Equality Act 2010. In the Equality Act 2010, according to FWS, ‘woman’ means biological female. According to the Scottish Government, on the other hand, the legal effect of the Gender Recognition Act 2004 is precisely that it requires that ‘woman’ in the Equality Act 2010, and hence in the relevant guidance, be interpreted as including biological males in possession of GRCs along with biological females.
The main question for decision by the Supreme Court, then, according to the arguments presented upon appeal, was what the law should do given an apparent conflict between the two Acts of Parliament just mentioned. In general, in the UK, questions of statutory construction are matters for decision according to domestic law. Accordingly, while acknowledging the relevance of the European Convention on Human Rights in passing, argument for the parties before the Supreme Court did not dwell on the case’s human rights dimensions.[i]
Yet, given its subject matter, other international human rights treaties that are binding on the UK are of central relevance to the case. The United Nations Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’, ‘UN Women’s Convention’) defines states parties’ duties to prevent discrimination against women including by enacting legislation and implementing positive action measures in women’s favour, amongst others, with regard to public appointments. Indeed, at an earlier stage of the litigation, FWS challenged the Scottish Government’s scheme based on CEDAW for this reason. However, in 2021, the Outer House of the Court of Session rejected this contention: agreeing with the Scottish Government, the Outer House took the view that CEDAW did permit affirmative action schemes for women to be extended to at least some biological males.
According to the analysis presented here, in this finding, the decision of the Outer House was incorrect. The scope of CEDAW’s protection against discrimination, on the contrary, does not extend to biological males, whether in possession of GRCs or not; temporary special measures in women’s favour cannot, consistently with CEDAW, be extended to all or any biological males; and affirmative action schemes that do extend their scope to males are precluded as contradictory to the duties imposed on states under the Convention in relation inter alia to ending sex discrimination and achieving women’s substantive equality with men, the achievement of gender parity, and addressing gender stereotypes.
If correct, these conclusions are significant. While generally, as noted, questions of statutory interpretation are resolved under domestic law, and even if the incompatibility of the Scottish Government’s scheme with CEDAW was not argued before the Supreme Court, international treaties remain relevant for judicial analysis in cases of statutory ambiguity, which presents as a prominent feature of the current appeal as argued by the parties. Courts and sub-national authorities, besides the UK government itself, moreover have a duty to ensure compliance under CEDAW with the treaty’s requirements.[ii]
More generally, the Supreme Court has relied on international legal rules in holding state action unlawful (see, for example, R (on the application of AAA and others) (Respondents/Cross Appellants) v Secretary of State for the Home Department (Appellant/Cross Respondent (‘Rwanda case’)) paras.19-26, 149). Like non-refoulement, on which the Supreme Court’s decision in the ‘Rwanda case’ was based, the prohibition of sex discrimination has been identified by some authors as a norm of customary international law.[iii]
Hence, other things being equal, the Supreme Court ought not accept the Scottish Government’s suggested interpretation of the statutory framework, if it finds it less or equally plausible to the approach proposed by FWS or the Equality and Human Rights Commission (EHRC). Further, given the Scottish Government’s policy commitment to incorporate CEDAW into Scottish law[iv]; relevant terms of the Scottish Ministerial Code[v]; and the Scottish Government’s claimed objectives in passing the challenged regulations, inconsistency with CEDAW’s purposes and specific provisions may seem pertinent to the Supreme Court’s evaluation of the overall coherence of the Scottish Government’s pleaded arguments.
If it is correct, as argued here, that positive action schemes for women that include biological males are inconsistent with CEDAW, but the Supreme Court does not find in FWS’ favour (and accepts either the Scottish Ministers’ or EHRC’s arguments as presented on appeal, for other reasons) then, and irrespective of the specific rationale for the Supreme Court’s decision, the Court ought at minimum explicitly to identify the breach of the UK’s international obligations. Under CEDAW, as noted, national courts have a duty to secure compliance with the Convention, but where they cannot do this, they must ‘draw any inconsistency between national law…and the State party’s obligations under the Convention to the attention of the appropriate authorities’ (Article 2 CEDAW, General Recommendation No.28, para.33).
Further, in the event the Supreme Court either delivers a judgment that fails to protect women’s rights under CEDAW or delivers a judgement that breaches CEDAW but omits to recognise this, there would appear to be grounds for FWS to challenge this, at the international level, via CEDAW’s Optional Protocol and the procedure it provides for raising complaints before the CEDAW Committee. The specific basis of a communication to the Committee, and whether it should embrace, beyond the Scottish Government scheme, also the Equality Act 2010 and Gender Recognition Act 2004 would depend on the specific terms of the Supreme Court’s judgment, when delivered.
These matters carry significance beyond the UK. One hundred and eighty-six states have ratified CEDAW. The question whether CEDAW’s protection extends to biological males will be of keen interest to these other states parties, given its potentially profound implications for the scope of their international duties as well as national arrangements undertaken to implement them.
In addition, other states, besides the UK, have enacted laws permitting individuals to change legal gender, or policies that, in different ways, allow biological males asserting transgender identities to access facilities, services, schemes and spaces whose protection for women on a single- or separate sex basis is foreseen under CEDAW as well as under other treaties, such as the Council of Europe’s Istanbul Convention.[vi] In Europe, this trend has paralleled the development by the European Court of Human Rights (ECtHR) of a body of case law relating to legal gender identity.
Yet how women’s established international human rights under CEDAW, the ECHR, or other treaties such as the Istanbul Convention should be held to interact with this aspect of the individual right to respect for private and family life under Article 8 of the ECHR are matters that have not yet been specifically considered by the Strasbourg Court, by the CEDAW Committee or any other authoritative mechanism at the regional or international level, underlining the need for their evaluation, with reference to CEDAW.
Section 2 of this note outlines the context of and litigation history preceding the current appeal, For Women Scotland Ltd (Appellant) v The Scottish Ministers (Respondent); readers already familiar with the case’s progression and arguments pleaded in the Supreme Court may wish to proceed directly to the next section.
Section 3 explains state duties arising under CEDAW and their application to the issues raised by FWS’ appeal before the Supreme Court. It begins by explaining the meaning of ‘discrimination’ and ‘women’ under CEDAW (Section 3.1). Next it addresses the duties of states parties under CEDAW inter alia to secure women’s substantive equality, and in relation to temporary special measures (Section 3.2). Section 3.3 then considers state duties to secure women’s equal representation, and gender parity including on public boards. Section 3.4 explains the notion of gender as it features within the CEDAW Committee’s interpretive guidance, as well as how CEDAW relates to gender-neutral measures and gender stereotypes. Section 3.5 addresses CEDAW’s approach ‘intersectional’ discrimination. Section 4 concludes.
2. Background to the case: Scottish Government regulations and guidance
The Scottish Parliament is established under the Scotland Act 1998, which prescribes its legislative competence. Policy areas on which the Scottish Parliament can legislate are ‘devolved’ and others are ‘reserved’ to the Westminster Parliament. Equalities regulation, under the Scotland Act 1998, is generally a reserved matter.
In 2018, the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act. This set targets for increasing the proportion of women on public boards and was promoted by the Scottish Government as a positive action measure aimed at women. Under s1(1) Gender Representation on Public Boards (Scotland) Act 2018,
‘The “gender representation objective” for a public board is that it has 50% of non-executive members who are women.’
While, as just noted, the Scottish Parliament is generally precluded under the Scotland Act 1998 from legislating on equalities, under a statutory exception, it can do so where this has the purpose of securing ‘equal opportunities’.[vii]
For the purposes of this exception, ‘equal opportunities’ is defined as,
‘the prevention, elimination or regulation of discrimination between persons on grounds of sex or marital status, on racial grounds, or on grounds of disability, age, sexual orientation, language or social origin, or of other personal attributes, including beliefs and opinions, such as religious beliefs or political opinions.’[viii]
In addition, it is provided that the Scottish Parliament can legislate to promote equal opportunities in relation to appointments to public boards. In this context, measures to promote equalities on the basis of the “protected characteristic” of sex are permitted, where ‘protected characteristic’ has ‘the same meaning as in the Equality Act 2010’.[ix]
Hence, the meaning of the protected characteristic of ‘sex’, under Scottish legislation that the Parliament is competent to adopt, in relation to equal opportunities on public boards, must be the same meaning of ‘sex’ as found in the UK Equality Act 2010, sections 11[x] and 212.[xi]
Originally, however, the Gender Representation on Public Boards (Scotland) Act 2018 defined ‘woman’ in the following way:
‘…“woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female.’
In its first legal challenge to the Scottish Government’s scheme (FWS1), FWS challenged this definition, as taking the Gender Representation on Public Boards (Scotland) Act 2018 outside the Scottish Parliament’s legislative competence, on the basis that its definition of ‘woman’ differed to that provided for under the Scotland Act 1998, as described above.
In this initial litigation, FWS raised argument inter alia in relation to CEDAW. According to FWS, CEDAW required that ‘temporary special measures’, such as those advanced via the Gender Representation on Public Boards (Scotland) Act 2018 be restricted in scope to biological females. Though not domestically applicable in the UK, as an unincorporated treaty, FWS argued CEDAW might nonetheless be relevant as an aid to statutory interpretation in the context of the case.
While accepting the latter point, the Outer House of the Court of Session disagreed with the former. With reference to the Scottish Government’s submissions on secondary materials developed under CEDAW, in the view of Lady Wise,
‘…[CEDAW] covers both sex-based and gender-based discrimination against women, with gender referring to socially constructed identities, attributes and roles’ [64].
Accordingly, biological males asserting transgender identities might experience discrimination against ‘women’ within the meaning of CEDAW. As a result, she concluded [para.64],
‘There appears…to be no inconsistency between the types of discrimination addressed by CEDAW and the provisions of the 2018 Act.’
Hence, in Lady Wise’s view, CEDAW posed no bar to the conclusion that the UK Gender Recognition Act 2004, in establishing a generally applicable presumption of statutory interpretation, that in the context of the 2010 Equality Act and 2018 Gender Representation on Public Boards (Scotland) Act entailed that “woman” included a person issued with a full GRC in the acquired gender of female, lay within the scope of the equal opportunities exception of the Scotland Act 1998, and moreover ‘[did] not offend against the fundamental principle of equality of treatment’ [para.67].
On appeal, Lady Wise’s decision was overturned. In 2022, the Inner House of the Court of Session found that, in line with the meaning of relevant terms under the Equalities Act 2010, the equal opportunities exception allowing the Scottish Parliament to take steps relating to the inclusion of women, on grounds of the protected characteristic of sex, was limited to allowing provision to be made in respect of a “female of any age”, hence excluding biological males from its scope.
Accordingly, the Inner House declared inter alia that the definition of “woman” in section 2 of the Gender Representation on Public Boards (Scotland) Act 2018 was ‘outside the legislative competence of the Scottish Parliament in that it relates to reserved matters and is accordingly not law in terms of section 29(1) and (2)(b) of the Scotland Act 1998’. CEDAW, it appears, was not raised by either party to the appeal.
In response to the Inner House decision, the Scottish Government amended the Gender Representation on Public Boards (Scotland) Act 2018, so as to articulate with the formal limits on the competence of the Scottish Parliament under the Scotland Act 1998. Section 3 of the Gender Representation on Public Boards (Scotland) Act 2018 as amended provides, as before, the duty to prefer candidates on grounds of the ‘gender representation objective’.
Section 4 of the Act notionally aligns with the Equality Act 2010, as required by the judgement of the Inner House:
However, to accompany the amended Gender Representation on Public Boards (Scotland) Act 2018, the Scottish Government issued new statutory guidance. According to this guidance,
In other words, under its revised guidance, reflecting the terms of the Gender Recognition Act 2004, the Scottish Government sought to maintain the eligibility of biological males for positive action measures otherwise available only to women, under the Gender Representation on Public Boards (Scotland) Act 2018 as amended, where such individuals hold GRCs.
For the reasons already explained above, in order for the guidance to be lawful, under the Scotland Act 1998, it is required that such individuals (i.e. biological males in possession of GRCS) qualify as ‘women’ for the purposes of the Equality Act 2010. Put bluntly, then, the legality of the Scottish Government’s approach depends on whether the Gender Recognition Act 2004 conditions the interpretation of the Equality Act 2010, and the meaning of ‘woman’ thereunder, or vice versa.
In essence, FWS put the latter position to the courts when it embarked on a fresh legal challenge (FWS2) to the Scottish Government’s revised statutory guidance. Unsurprisingly, given that arguments based on CEDAW had not succeeded at first instance in FWS1, they were not renewed by FWS on this occasion.
In 2022, the Outer House of the Court of Session found the Scottish Government’s revised guidance to be lawful. Departing from the judgement of the Inner House in FWS1, Lady Haldane here held [53] that ‘sex’ for the purposes of the 2010 Equality Act, was
‘…not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex,’
albeit with the caveat that ‘sex’ might mean biological sex in other statutory provisions where this meaning was clear from their respective contexts.
On appeal, the Inner House upheld this ruling. Whereas there was some discussion of the implications of the ECHR in the Inner House’s judgment, CEDAW was not discussed, and the case was not determined on human rights grounds. In the court’s conclusion, as a matter of statutory interpretation [65]:
‘A person with a GRC in their acquired gender possesses the protected characteristic of gender reassignment for the purposes of section 7 EA. Separately, for the purposes of section 11 they also possess the protected characteristic of sex according to the terms of their GRC. For the purposes of section 11, individuals without a GRC, whether they have the protected characteristic of gender reassignment or not, retain the sex in which they were born. No conflation of the protected characteristics is involved.’
FWS’ challenge to this decision is the matter recently heard before the Supreme Court. While not directly raised by FWS as the appellant, or by the Scottish Government as respondent, some human rights instruments and arguments were raised by interveners.[xii] Saliently, however, these focused on the ECHR and did not refer to CEDAW. As the next section explains, this is significant, because CEDAW establishes international legal duties for the UK that are both distinct from those arising under the ECHR and which appear material to assessment of the legality of the measures at the centre of the case.
3. CEDAW: character, scope and content of state duties concerning discrimination against women as relevant to FWS v Scottish Ministers
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW or ‘UN Women’s Convention’) defines the duties under international law of states parties with regard to protecting women from discrimination. CEDAW was adopted in 1979, signed by the UK in 1981 and ratified in 1986. As such, in line with the Vienna Convention on the Law of Treaties (VCLT), CEDAW is binding on the UK, and domestic courts in the UK may not invoke national laws to justify a failure to perform CEDAW obligations (Articles 26 and 27 VCLT).
In 2004, the UK additionally became a party to the Optional Protocol to CEDAW, thereby accepting the competence of the UN Committee on the Elimination of All Forms of Violence Against Women (‘UN Women’s Committee’, ‘CEDAW Committee’) to receive complaints from individuals or groups alleging violations of their rights under the Convention.[xiii]
For reasons further addressed below, it is also relevant to note that on ratifying CEDAW, the UK entered a reservation, according to which,
"(a) The United Kingdom understands the main purpose of the Convention, in the light of the definition contained in Article 1, to be the reduction, in accordance with its terms, of discrimination against women, and does not therefore regard the Convention as imposing any requirement to repeal or modify any existing laws, regulations, customs or practices which provide for women to be treated more favourably than men, whether temporarily or in the longer term; the United Kingdom's undertakings under Article 4, paragraph 1, and other provisions of the Convention are to be construed accordingly."
Article 4 of CEDAW, as mentioned in the UK’s reservation, provides that:
1. Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.’
The combined significance of these elements is considered further below in Section 3.2.
3.1 CEDAW: meaning of ‘discrimination’ and ‘woman’
Both the UN Charter and Universal Declaration of Human Rights affirm ‘the equal rights of men and women’. Likewise, the ICCPR and ICESCR oblige states parties to uphold human rights ‘without distinction’ as to ‘sex’. Relatedly, according to some scholars, the prohibition of discrimination on grounds of sex has now attained the status of international customary law.[xiv]
However, given the persistence of discrimination against women as well as differentiated patterns of rights denial between women and men in spite of ‘formal’ anti-discrimination duties such as those under the ICCPR and ICESCR, CEDAW was developed with the aim of securing women’s ‘substantive equality’ with men (General Recommendation No. 25, para.8) and to elaborate states duties to this end.[xv]
Article 1 of CEDAW, consequently, defines ‘discrimination’ against women broadly and purposively:
Like CEDAW’s Preamble, which recalls the UDHR’s prohibition of any ‘distinction based on sex’, Article 1 of CEDAW makes explicit that, for the purposes of CEDAW,
‘“discrimination against women” shall mean any disctinction, exclusion or restriction made on the basis of sex’.
Given the reference here again to ‘sex’, it is clear that CEDAW addresses discrimination against biological females. This conclusion aligns with the ordinary meaning of the treaty text, CEDAW’s purposes as described in its Preamble, CEDAW’s specific institutional as well as historical context, and its subsequent interpretation, by the CEDAW Committee, by states parties, and in scholarship, in other words, sources that are relevant to its construction under the VCLT (Articles 31 and 32).[xvi]
This reading is further consistent, for instance, with the CEDAW Committee’s explanation of the rationale for the notion of ‘gender’. Defining gender as the ‘social meanings given to biological sex differences’ (fn 2), in its General Recommendation No. 25 on temporary special measures, the Committee highlights that ‘socially and culturally constructed differences between women and men’ are supplementary to, and not ontologically or otherwise prior to ‘biological differences between women and men’ (paras.8 and16), while it also refers to‘Women’s biologically determined permanent needs and experiences’ (para.11; see further discussion at Section 3.4 below).
Moreover, the duties of states parties and correlate rights of individuals under CEDAW are circumscribed with reference to sex discrimination suffered by females. As the CEDAW Committee’s General Recommendation No. 25 affirms,
‘The Convention goes beyond the concept of discrimination used in many national and international legal standards and norms. While such standards and norms prohibit discrimination on the grounds of sex and protect both men and women from treatment based on arbitrary, unfair and/or unjustifiable distinctions, the Convention focuses on discrimination against women, emphasizing that women have suffered, and continue to suffer from various forms of discrimination because they are women.’
To sum up, no other meaning can be construed as being reasonably or legally available: CEDAW’s protection extends to biological women and the conclusion of the Outer House at first instance in FWS1 that discrimination experienced by males has been brought within CEDAW’s purview by virtue of the CEDAW Committee’s reference in interpretive materials to the concept of ‘gender’ is not supportable.
Besides reasoning based on the above textual observations, the profound impact that extending the scope of protection under CEDAW to biological males would have for the international legal responsibilities of CEDAW’s one hundred and eighty five other states parties also suggests this. Such a reading would entail that biological males can already seek protection under CEDAW in all such countries; it would likewise entail the illegality of national legal rules and procedures that did not align to this position. It would further give males the right to raise complaints under CEDAW’s Optional Protocol. There is no evidence, in the practice of states, individuals, the CEDAW Committee or other UN human rights entities, to indicate such a legal development has taken place, in the fourteen years since the adoption by CEDAW of its General Recommendation No.28, which refers to the concept of gender, in 2010, and referred to by the Outer House as the basis for its interpretation.[xvii]
Hence, it is this meaning, i.e. ‘discrimination against women’ means discrimination on grounds of their sex, against females, that is carried forward into the rest of CEDAW, in relation to both direct and indirect discrimination against women, in both the public and private spheres. Neither can it be plausibly entertained that a departure from this meaning, so as to include protection for males, would be deemed consistent with the object and purpose of CEDAW, either by the CEDAW Committee or other states parties, in particular given the approach taken by CEDAW to Reservations, and specifically, to Reservations to Article 2, which is viewed by the CEDAW Committee as a core provision of the Convention. In further support of this position, it is noteworthy that the UK has itself entered formal objections to Reservations to CEDAW by other states parties on the grounds of the ambiguity of their effects in relation to obligations arising under the Convention.[xviii]
Contrary to the finding of the Outer House in FWS 1 as noted above, therefore, insofar as CEDAW extends to states parties duties to protect against ‘gender’-based discrimination, this obligation can apply only in relation to gender-based discrimination as suffered by biological females.
3.2 CEDAW: State duties to achieve substantive equality and in relation to temporary special measures
Under CEDAW it is the actual effect on the practical enjoyment of human rights and freedoms by women (which, as just seen, is to say persons of the female sex) on an equal basis with males, that is operative in ascertaining whether discrimination, for the purposes of CEDAW, has occurred, and not mere formal, legal or other ‘in principle’ equality.
This is evidenced by CEDAW Article 2, according to which:
Article 2 has been interpreted by the CEDAW Committee in its General Recommendation No.28 on the core obligations of States parties under Article 2 of CEDAW (2010). As this observes,
‘4. The objective of the Convention is the elimination of all forms of discrimination against women on the basis of sex. It guarantees women the equal recognition, enjoyment and exercise of all human rights and fundamental freedoms in the political, economic, social, cultural, civil, domestic or any other field, irrespective of their marital status, and on a basis of equality with men.
Accordingly, amongst others, Article 2 entails, according to General Recommendation No.28, that,
In addition,
Also, the duty of states parties to achieve women’s substantive equality with men in turn implies the need for legislative measures and in particular affirmative action or ‘temporary special measures’, as specified by CEDAW Articles 3 and 4 respectively:
The operation of these provisions is supported, in Part VI of CEDAW, by a savings provision to protect existing national measures that are more favourable to women from the scope of non-discrimination duties under the Convention, as well as a cross-cutting duty on states to ensure that national measures are fully effective with reference to CEDAW’s overall goals:
Hence, even if the Outer House in FWS1 was correct in suggesting that the CEDAW Committee intended to extend the protection of CEDAW to biological males, implicitly, via acceptance of the concept of ‘gender’ in its General Recommendation No.28, Articles 23, 24 and 2 CEDAW together entail that there is no legal scope under CEDAW to do so: the combined consequence of the latter is that there can be no basis discoverable in CEDAW for unwinding national anti-discrimination measures that are more favourable to females than males, or whose purpose is to redress discrimination against females, whether via the concept of ‘gender’ or otherwise. ‘Gender’ as interpreted by CEDAW cannot, in other words, be a gateway for diluting or diminishing statutory protections enjoyed by females at national level, as the Outer House held in FWS1, nor can such an interpretation be compatible with state duties under CEDAW.
This is further emphasised at various points throughout CEDAW’s General recommendation No. 25: Article 4, paragraph 1, of the Convention (temporary special measures) in which it the CEDAW Committee states, inter alia, that it:
‘…considers that States parties that adopt and implement such measures under the Convention do not discriminate against men.’
The term ‘temporary special measures’ embraces ‘positive action, preferential treatment or quota systems’ (General recommendation No. 5 (1988)). These, as General Recommendation No. 40 (para.25) mentions, are sometimes misunderstood ‘to conflict with constitutional equality or merit-based systems’. In fact, however,
‘…non-identical treatment of women and men is sometimes necessary to address socially and culturally constructed inequalities that hamper a true merit-based system. The Committee underlines the need to establish a strong legal framework, including targeted permanent and temporary special measures, to prevent and address discrimination and ensure substantive equality in order to reach fifty-fifty parity in decision-making systems within a clear time frame...’ [General Recommendation No. 40, para.9]
Indeed, this was the area of concern addressed by the UK when, upon ratifying CEDAW in 1986, it entered a Reservation, according to which:
"(a) The United Kingdom understands the main purpose of the Convention, in the light of the definition contained in Article 1, to be the reduction, in accordance with its terms, of discrimination against women, and does not therefore regard the Convention as imposing any requirement to repeal or modify any existing laws, regulations, customs or practices which provide for women to be treated more favourably than men, whether temporarily or in the longer term; the United Kingdom's undertakings under Article 4, paragraph 1, and other provisions of the Convention are to be construed accordingly."
Hence, even if all the foregoing analysis were to be mistaken, and CEDAW does in fact establish a duty or entitlement on the part of states parties to extend positive action schemes for women to biological males, the UK in 1986 excluded itself from the ambit of this implication as a matter of international law.
These considerations regarding Article 4(1) CEDAW provide a useful segue to reflect also on the consequence of the arguments advanced by the Scottish Government before the Supreme Court, that ‘pregnant men’ (that is to say, females asserting transgender identities who are pregnant) should be excluded from the scope of national statutory maternity protections, including the prohibition of maternity discrimination.
Measures relating to maternity are, under Article 4(2) CEDAW, specifically excluded from the scope of discrimination prohibited by CEDAW, a position further reinforced inter alia by elements of Articles 11 and 12 CEDAW. This, in combination with CEDAW’s focus on the achievement of substantive equality between males and females, and the interests of children as the ‘primordial’ consideration ‘in all cases’ (Article 5(b) CEDAW), likewise suggests that the Scottish Government’s submission, before the Supreme Court, that females asserting transgender identities should be excluded from the scope of maternity provision does not align with the UK’s international obligations. Indeed, such a submission furthermore flies in the face of the fundamental tenet of all international human rights standards, of the inalienability of human rights.
3.3 Equal representation of women, public boards and ‘parity’
A corollary of the substantive equality duty arising under CEDAW is the need for states parties to secure equal female representation in societal decision-making structures. This is highlighted by CEDAW Committee’s General Recommendation No. 40 (2024) on the equal and inclusive representation of women in decision-making systems .
Equal representation, Recommendation No. 40 highlights, is an entitlement of women under the International Covenant on Civil and Political Rights (Articles 1(1) and (3) and other instruments.[xix] Under CEDAW, however, it is defined in more particular terms. ‘Equal and inclusive representation’, as a consequence of CEDAW, Recommendation No.40 affirms is defined as,
‘…fifty-fifty parity between women and men in all their diversity in terms of equal access to and equal power within decision-making systems, hereinafter also referred to simply as “parity”’ [para.2].
Elaborating further on the meaning of ‘fifty-fifty parity’, General Recommendation No. 40 highlights that:
‘14. Targets of 30 per cent for the representation of women in decision-making are incompatible with the Convention’s core aim of elimination of discrimination against women, as they convey a message that inequality between women and men is justifiable. Decision-making will have real and dynamic meaning and lasting effect only when it is based on fifty-fifty parity and takes equal account of the interests of both women and men…
15. As reflected in the concluding observations of the Committee, a growing number of States parties have passed or are considering parity laws for elections and other decision-making roles. Parity means the full and equal sharing of power on a fifty-fifty basis between women and men as a permanent and core feature of all areas, including political, public and economic life. Legislation guaranteeing parity is thus not intended to be removed once women’s historical disadvantages have been redressed but remains as a legal principle and permanent and universal feature of good governance. References to parity in the present general recommendation are always in relation to fifty-fifty parity between women and men in all their diversity.’[xx]
Further, CEDAW Recommendation No.40 observes (para.19, drawing on its earlier General Recommendation No. 23 Political and Public Life (1997)), that the requirement that ‘women enjoy equal rights with men’ for the purposes of CEDAW entails that ‘a tokenistic approach is unacceptable – women must be involved equally in decision-making at all levels’.
Consequently, the CEDAW Committee recommends that states parties [para. 47]:
‘(a) Adopt parity laws for all elections and appointments;
(b) Adopt rules to ensure parity in leadership positions in parliaments, local and regional councils and other community decision-making bodies…’
This duty extends in scope to public boards, as General Recommendation No. 23 makes explicit [para.5]:
‘Article 7 [CEDAW] obliges States parties to take all appropriate measures to eliminate discrimination against women in political and public life and to ensure that they enjoy equality with men in political and public life…The concept also includes many aspects of civil society, including public boards and local councils and the activities of organizations…’
This, it is explained, owes to historical sex-based disparities in participation across human societies, because,
‘Men historically have both dominated public life and exercised the power to confine and subordinate women within the private sphere’ (para. 8, General Recommendation No. 23).
In addition, unequal representation in the public sphere is instrumental to the perpetuation of discrimination against women. As the CEDAW Committee observes,
‘…the most significant factors inhibiting women’s ability to participate in public life have been the cultural framework of values and religious beliefs, the lack of services and men’s failure to share the tasks associated with the organization of the household and with the care and raising of children... [General Recommendation No.23, para. 10],
while
‘...Policies developed and decisions made by men alone reflect only part of human experience and potential [General Recommendation No.23, para.13]’.
The consequences of this are far-reaching. As General Recommendation No.23 underscores,
‘...Even historically stable democracies have failed to integrate fully and equally the opinions and interests of the female half of the population. Societies in which women are excluded from public life and decision-making cannot be described as democratic. The concept of democracy will have real and dynamic meaning and lasting effect only when political decision-making is shared by women and men and takes equal account of the interests of both…[para.14].
National legislation and even national constitutions should hence be amended to institutionalize fifty-fifty parity between women and men in all spheres of decision-making, supported by ‘educational and awareness-raising measures on substantive equality’ (General Recommendation No.23, para.26(b)). Moreover, states should:
‘e) Ensure parity, transparency and integrity in nomination and selection processes for decision-making positions at the local, national, regional and international levels;
(f) Enforce parity requirements by establishing or strengthening monitoring bodies and stipulating penalties for non-compliance.’
Specifically with regard to temporary special measures, General Recommendation No. 23 continues,
‘15. While removal of de jure barriers is necessary, it is not sufficient. Failure to achieve full and equal participation of women can be unintentional and the result of outmoded practices and procedures which inadvertently promote men. Under article 4, the Convention encourages the use of temporary special measures in order to give full effect to articles 7 and 8. Where countries have developed effective temporary strategies in an attempt to achieve equality of participation, a wide range of measures has been implemented, including recruiting, financially assisting and training women candidates, amending electoral procedures, developing campaigns directed at equal participation, setting numerical goals and quotas and targeting women for appointment to public positions such as the judiciary or other professional groups that play an essential part in the everyday life of all societies. The formal removal of barriers and the introduction of temporary special measures to encourage the equal participation of both men and women in the public life of their societies are essential prerequisites to true equality in political life. In order, however, to overcome centuries of male domination of the public sphere, women also require the encouragement and support of all sectors of society to achieve full and effective participation, encouragement which must be led by States parties to the Convention, as well as by political parties and public officials. States parties have an obligation to ensure that temporary special measures are clearly designed to support the principle of equality and therefore comply with constitutional principles which guarantee equality to all citizens.’
Finally, states parties are also obliged under CEDAW,
‘27. …to ensure that barriers to women’s full participation in the formulation of government policy are identified and overcome. These barriers include complacency when token women are appointed…’
Thus, the CEDAW Committee recommends that states parties to CEDAW:
‘41. …ensure that their constitutions and legislation comply with the principles of the Convention, and in particular with articles 7 and 8…
43. …identify and implement temporary special measures to ensure the equal representation of women in all fields covered by articles 7 and 8’.
Such measures should include,
46. Under article 7, paragraph (b)…those designed to ensure: (a) Equality of representation of women in the formulation of government policy; (b) Women’s enjoyment in practice of the equal right to hold public office; (c) Recruiting processes directed at women that are open and subject to appeal.
Types of positive action measures that are foreseen, the Recommendation notes, include:
‘29.…adoption of a rule whereby, when potential appointees are equally qualified, preference will be given to a woman nominee; the adoption of a rule that neither sex should constitute less than 40 per cent of the members of a public body; a quota for women members of cabinet and for appointment to public office…’
In line with CEDAW’s overall duty on states parties to secure substantive and not merely formal equality between males and females, measures to ensure equal representation and parity, in particular, should also include,
47. Under article 7, paragraph (c)…those designed to: (a) Ensure that effective legislation is enacted prohibiting discrimination against women…’.
Finally, to support the realisation of the above responsibilities, General Recommendation No. 23 highlights that,
48. When reporting under article 7, States parties should:
(a) Describe the legal provisions that give effect to the rights contained in article 7;
(b) Provide details of any restrictions to those rights, whether arising from legal provisions or from traditional, religious or cultural practices;
(c) Describe the measures introduced and designed to overcome barriers to the exercise of those rights;
(d) Include statistical data, disaggregated by sex, showing the percentage of women relative to men who enjoy those rights;
(e) Describe the types of policy formulation, including that associated with development programmes, in which women participate and the level and extent of their participation…
The CEDAW Committee’s most recent General Recommendation No.40 (2024) resumes its focus on equal representation including in public appointments. Concerning the ‘Obligations of States parties in relation to the equal and inclusive representation of women in decision‑making systems’ (Chapter V), and in particular state duties under Articles 1-4, 7 and 8 CEDAW, General Recommendation No.40 sets down the following guidance:
In sum, there appears to be no room to doubt, given Articles 1, 2, 4, 7, and 8 CEDAW as amplified inter alia by General Recommendations Nos. 23, 25, 28 and 40, that a statutory scheme claiming the protection of CEDAW, by virtue of its espousal of a notional objective of affirmative action for women towards the specific goal of securing equal female representation on public boards, but which in fact admits biological males, is not consistent with the UK’s legal duties under CEDAW.
A further implication of the above standards, it seems reasonable to content, would be that if measures to secure equal treatment for males asserting transgender identities are sought to be implemented at national level, then any preferences afforded such individuals should operate in relation to other biological males, and not females.
At this point it is relevant to acknowledge that, in 2019, in the course of reviewing the UK’s compliance with its treaty obligations, the CEDAW Committee highlighted the Gender Representation on Public Boards (Scotland) Act as a positive legislative reform[xxi]:
Participation in political and public life
37. The Committee welcomes the increasing number of women who are represented in Parliament, the judiciary and the police force. Nevertheless, the Committee remains concerned about the underrepresentation of women in political and public life…While welcoming the adoption in Scotland of the Gender Representation on Public Boards (Scotland) Act in March 2018, which is aimed at achieving the objective of 50 per cent representation of women in non-executive positions on the boards of certain public bodies by December 2022, the Committee remains concerned about the inadequacy of measures adopted by the State party to accelerate the representation of women in all areas of political and public life throughout the whole of the State party’s territory.’
Though the specific information on which the Committee’s assessment here was based has not been conclusively established for the purposes of this note, it seems plausible, from the above text, that the positive view taken by the Committee of the Gender Representation on Public Boards (Scotland) Act owed to an understanding of it according to which it embodied a goal of 50:50 representation as between biological females and males.[xxii]
3.4 ‘Gender’, gender stereotypes and gender neutrality
As discussed above (Section 3.2), CEDAW prohibits discrimination against women on grounds of their sex, where sex refers to ‘biological differences between women and men’. In addition, Article 5 CEDAW, together with Articles 1 and 2 (f) CEDAW, provides a basis for the prohibition of discrimination against women based on their gender and gender stereotypes. Under Article 5,
As highlighted by CEDAW General Recommendation 28 (para.5),
5. Although the Convention only refers to sex-based discrimination, interpreting article 1 together with articles 2 (f) and 5 (a) indicates that the Convention covers gender-based discrimination against women. The term “sex” here refers to biological differences between men and women. The term “gender” refers to socially constructed identities, attributes and roles for women and men and society’s social and cultural meaning for these biological differences resulting in hierarchical relationships between women and men and in the distribution of power and rights favouring men and disadvantaging women. This social positioning of women and men is affected by political, economic, cultural, social, religious, ideological and environmental factors and can be changed by culture, society and community. The application of the Convention to gender-based discrimination is made clear by the definition of discrimination contained in article 1. This definition points out that any distinction, exclusion or restriction which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women of human rights and fundamental freedoms is discrimination, even where discrimination was not intended. This would mean that identical or neutral treatment of women and men might constitute discrimination against women if such treatment resulted in or had the effect of women being denied the exercise of a right because there was no recognition of the pre-existing gender-based disadvantage and inequality that women face. The views of the Committee on this matter are evidenced by its consideration of reports, its general recommendations, decisions, suggestions and statements, its consideration of individual communications and its conduct of inquiries under the Optional Protocol.’
Hence, to reiterate, the scope of gender-based discrimination against women, for the purposes of CEDAW, must follow the scope of discrimination against women, for the purpose of CEDAW, as set out in CEDAW Article 1, i.e. discrimination against women on grounds of their sex. CEDAW does not and cannot extend to states parties duties in relation to gender-based discrimination against males, whether they assert transgender identities or not;[xxiii] it moreover prohibits such an extension (i.e. treating males as females) for at least the reasons that firstly, this fails to recognise the gender-based historical and persisting advantages enjoyed by males relative to females; secondly, it applies a gender-neutral criterion that advantages males over females and denies females the exercise of their rights; and thirdly, it precludes the achievement of state duties to provide adequate legal and policy machinery to secure the achievement of 50:50 sex parity. The intention of positive action measures is moreover irrelevant in this context: discrimination effected unintentionally against women is proscribed under CEDAW as readily as deliberate sex discrimination, as seen above.
Still further implications flow from the above important passage. Where a positive action scheme, such as that sought to be operated by the Scottish Ministers, permits the admission of biological males to the category of ‘woman’ or ‘female’, by reference to the indicator of ‘living as a woman’, as under the Gender Recognition Act 2004, this is likely in itself discriminatory against women under CEDAW, as being predicated on gendered stereotypes, given that biological sex cannot be changed.
3.5 Intersectionality
CEDAW General Recommendation No.40 (2024) also addresses the topic of intersectionality. Scrutinising the CEDAW Committee’s interpretation of the Convention’s implications in this area is important, given that an ‘intersectional’ approach or ‘lens’ is sometimes advocated as providing a rationale for the promotion or adoption of ‘trans-inclusive’ definitions of ‘woman’, ‘sex discrimination’ and so on.[xxiv] If the CEDAW Committee had an intention to do so, it would therefore plausibly be under this heading that it would seek to address the question of whether duties of states parties under CEDAW or measures required to implement them should be inclusive of males asserting transgender identities.
However, the CEDAW Committee’s approach in this area is aligned with its general articulation of the concept of discrimination against women and its implications for states parties, as outlined in the foregoing analysis presented in this note. As General Recommendation No. 40 clarifies,
17. Under the Convention, States parties must address discrimination against women that intersects with other forms of discrimination, including newly emerging forms of discrimination. In its general recommendation No. 28 (2010) on the core obligations of States parties under article 2 of the Convention, the Committee clarifies that intersectionality is a basic concept for understanding the scope of States parties’ obligations, a concept further clarified in general recommendation No. 33 (2015) on women’s access to justice and No. 35 (2017) on gender-based violence against women, updating general recommendation No. 19. The Committee consistently issues recommendations to address intersecting and evolving forms of discrimination, including in relation to decision-making roles, and has also issued general recommendations No. 18 (1991) on disabled women, No. 27 (2010) on older women and the protection of their human rights, No. 34 (2016) on the rights of rural women and No. 39 (2022) on the rights of Indigenous women and girls, in all of which it calls for equal and inclusive decision-making. To ensure truly inclusive decision-making systems, women in all their diversity, with particular attention to young people as guarantors of the sustainability of parity, need to be the leading forces in legislation, strategies, policies and programmes aimed at realizing this right.
There is no indication here that the Committee’s interpretation, in 2024, of the ambit of protection afforded under CEDAW has evolved, via intersectionality, or through references to ‘women in all their diversity’ so as to embrace biological males. As stated earlier, this would represent a profound change to the scope of the Convention overall. It cannot be plausibly maintained that such a change has been effected by the CEDAW Committee by sleight of hand, given the omission of any mention at all, in the text just cited, of the issue of gender identity, of transgender individuals, transexuals, the possible loss of protection under CEDAW by females asserting male or other gender identities, or other related matters, and the explicit references made in the cited text, by contrast, to other groups.[xxv]
Text elsewhere in General Recommendation No.40 further supports this reading. For instance, at para.27, it is stated that,
‘In various general recommendations and concluding observations, the Committee observes how discrimination against women interacts with other forms of discrimination, including that based on race, ethnicity, indigenous status, religion, belief, health, status, disability, age, class, caste, sexual orientation, gender identity, political opinion, national origin, marital and/or maternal status, socioeconomic status, and refugee, asylum-seeking, displaced or migratory status. That list is non-exhaustive and might vary across countries and over time and include newly emerging forms of discrimination, such as discrimination against climate refugees. The Committee has also specifically and constantly stressed the rights of women in all their diversity to participate in decision-making at all levels.’
Finally, the work of ‘queer feminist’ human rights scholars critical of CEDAW also supports this view. Illustrative of a consensus view amongst such scholars, Otto, for instance, complains of ‘the limitations of the CEDAW text’ in terms of its ‘dualistic conception of gender’, a normative focus on heterosexuality, and the Committee’s almost ‘complete…silen[ce] about transgendered discrimination’. [xxvi]
4. Conclusion
To recall, at the outset of what has been a long, complex and costly litigation process, FWS argued directly that that Scottish Government’s scheme and approach did not comply with CEDAW. In the Outer House’ summary of the argumentation advanced on FWS’ behalf, at that stage,
‘[21]…while not incorporated, the Convention was relevant, including the recommendations of the Committee established under it, which were deserving of respect (R (A) v Home Secretary [2020] EWCA Civ 130, at paragraph 23). Articles 3, 4, 5 and 11 of the Convention [CEDAW] set out some of the principles and enjoined state parties to take measures to eliminate discrimination against women. Special measures aimed at accelerating equality between the sexes were approved, including those protecting maternity. Such measures were for the protection of biological women. The 2018 Act conflicted with the requirements of CEDAW and the court could grant a bare declarator to that effect…’
By contrast, for the Scottish Government it was maintained that whereas
‘[25]…CEDAW should be given respect insofar as the general recommendations (Nos 28 and 35) of the relative Committee commented on these matters…Scottish Government policy was that transgender women are to be treated as non-transgender women unless to do so would be prohibited by law...[and s]uch a policy reflected the recommendations of CEDAW...’
In addition,
‘[39] In relation to CEDAW in respect of which the petitioner was seeking a declarator, [this was] emphasised [to be an] unincorporated international treaty [that] does not give rise to enforceable obligations in domestic law - R (SG and others) v Secretary of State for Work and Pensions (Child Poverty Action Group and another intervening) [2015] 1 WLR 1449 at 1474. As CEDAW was not currently enforceable as a matter of domestic law, it could not be a constraint on the legislative competence of the Scottish Parliament as it did not fall within the provisions of section 29 of the 1998 Act.’
Moreover,
‘[39]….while CEDAW could be used as an aid to construction, having regard to the General Recommendations of the relative UN Committee on the Elimination of Discrimination against Women, those supported the respondents’ stance. In particular, General Recommendation No 28 made clear that gender included socially constructed identities and went beyond biological sex. Further, it made clear that discrimination of women based on sex and gender is inextricably linked with other factors affecting women, including gender identity. The declarator sought on the basis of purported incompatibility of the 2018 Act with CEDAW should be refused as incompetent.’
Having considered these submissions, the Outer House concluded that,
‘[64] CEDAW and the associated recommendations of the UN Committee on the Elimination of Discrimination against Women (“the Committee”) do not support the petitioner’s argument. Article 4 of CEDAW approves the adoption of temporary special measures aimed at accelerating de facto equality between men and women. General Recommendation No 28 of the Committee confirms (at paragraph 5) that the Convention covers both sex-based and gender-based discrimination against women, with gender referring to socially constructed identities, attributes and roles. The intersectionality of discrimination based on sex and gender and other factors is emphasised at paragraph 18. General Recommendation No 35, which addresses gender based violence, is not directed only at protecting women whose biological sex is female. Notably, that recommendation (published in 2019) acknowledges the 2018 Act within a list of positive efforts made towards CEDAW’s aims. There appears to me to be no inconsistency between the types of discrimination addressed by CEDAW and the provisions of the 2018 Act.’
It is suggested that, in light of the analysis presented in Section 3 of this note, the reasoning and decision reached by the Outer House cannot hold. To restate the key elements and consequences of that analysis, for the purposes of CEDAW:
1) Based on the text, Preamble, purposes, context, interpretation and the related practice of states parties, as well as the VCLT, under CEDAW, ‘woman’ means biological female and ‘discrimination against women’ means discrimination against biological females;
2) Contrariwise, ‘woman’ does not refer to biological males, and ‘discrimination against women’ cannot refer to disadvantage experienced by biological males;
3) ‘Gender-based’ discrimination refers only to discrimination experienced by women i.e. biological females; ‘gender identity’ refers likewise to the gender identity of biological females; and intersectional discrimination refers to discrimination suffered by females by virtue of their sex in combination with other characteristics (for example, insofar as they might identify as “trans men” “non-binary” or other transgender identity); furthermore, biological females cannot lose their protection under CEDAW, regardless of any change of gender identity;
4) States parties are obliged to implement effective measures to eliminate discrimination against women and to secure equal representation of women with men, which means achieving 50:50 parity, including in appointments to public boards;
5) Temporary special measures in women’s favour are not discriminatory; biological males are not and cannot become eligible to participate in or benefit from temporary special measures in women’s favour whether via ‘certificated sex’ or otherwise;
6) Admitting males to the scope of protections for women, based on sex, gender or gender identity contradicts: i) states’ core duties; ii) the requirement to avoid tokenistic appointments of women, particularly where this is based on criteria that themselves reinforce gender stereotypes; iii) the requirements to undertake adequate monitoring on the basis of sex-disaggregated data of the achievement of women’s substantive equality with men,[xxvii] and to implement effective appeals mechanisms for individual cases; and potentially also iv) states’ duties in relation to gender stereotypes Such an approach also deprives temporary special measures of their intended effect in balancing public decision-making as between the experiences and interests of women and men and encouraging women towards public office;
7) Even if the CEDAW Committee were to reach conclusions contradicting those above, admitting males to temporary special measures for females would be incompatible with terms of the UK’s Reservation to CEDAW Article 4;
8) The Supreme Court is bound, by virtue of the UK’s status as a state party to CEDAW, to uphold the Convention’s terms; if it cannot do so, it must at minimum ‘draw any inconsistency between national law…and the State party’s obligations under the Convention to the attention of the appropriate authorities’ (Article 2 CEDAW, General Recommendation No.28, para.33).
Lastly, it seems plausible that public authorities that sustain schemes claiming to advance CEDAW’s goals but which demonstrably undermine them, in face of repeated legal challenge by women human rights defenders on grounds of inconsistency with CEDAW, might eventually attract criticism from human rights mechanisms on that basis.
While the analysis presented here has not as such sought to evaluate the consistency of the Equality Act 2010 or the Gender Recognition Act 2004 with CEDAW, if either of these, or both operating in combination are held by the Supreme Court to require, or to permit, the measures adopted by the Scottish Government and complained of by FWS in the current appeal, the reasoning outlined above would apply mutatis mutandis to those enactments as well.
Claire Methven O’Brien is Reader in Law in the School of Law, University of Dundee and a member of the Scottish Human Rights Commission. This article is written in a personal capacity. It is not intended and should not be understood, quoted or cited as representing the views of the Scottish Human Rights Commission or any other organisation. The information provided is not and shall not be construed as legal or other professional advice.
[i] To the extent human rights law was considered, written submissions and oral argument during the hearing focused on the scope of the right to gender identity as an aspect of Article 8 ECHR, following the decision of the Strasbourg Court in Goodwin v UK; impacts of the Scottish Government’s scheme on the human rights of women and same-sex attracted persons under Article 8 and other ECHR provisions were alluded to in passing. None of the parties or interveners referred to CEDAW or other general international treaties to which the UK is a party, or those specifically addressing the human rights of women, such as the Council of Europe’s Istanbul Convention (on which in this context see further C Methven O’Brien, The Equality Act 2010 and support services for rape survivors: Does the UK comply with its international human rights obligations? ; Should judges and lawyers in rape proceedings refer to biologically male defendants as ‘she’? and Recording the sex of rapists: what does the law require?
[ii] See e.g. CEDAW Article 2, 24; Articles 26 and 27, Vienna Convention on the Law of Treaties.
[iii] See e.g. M Shaw, International Law 9th Edn (2021), 256-257 which suggests that discrimination on grounds of ‘gender’ may be a norm of customary international law, with reference to CEDAW Article 1’s prohibition and definition of sex discrimination, and also R McKean, Equality, Ch.10, A Bayefsky, ‘Equality’; T. Meron, Human rights law-making , Ch.2; R. Cook, ‘Women’s International Human Rights Law, 15 Human Rights Quarterly, 1993, 230; and R Cook (ed) Human Rights of Women (1994); as well as the UN General Assembly Declaration on Elimination of Violence Against Women, 33 ILM, 1994, 1049. See also, W Schabas, 'Equality', in The Customary International Law of Human Rights (Oxford, 2021; online edn, Oxford Academic, 19 Aug. 2021); cf. H Charlesworth and C Chinkin, ‘The Gender of Jus Cogens’, 15(1) Human Rights Quarterly 1993, 63–76. This note’s analysis based on CEDAW is independent from and does not require proof of the contention that the prohibition of sex (or gender) discrimination has achieved the status of a norm of customary international law. While Shaw’s text seems to regard ‘sex’ and ‘gender’ as interchangeable, moreover, this appears inadvertent, rather than the result of any considered reflection, with reference to CEDAW or other materials.
[iv] Scottish Government, A Human Rights Bill for Scotland: consultation (2023).
[v] The Scottish Ministerial Code 2016 edition provides:
1.2. The Ministerial Code should be read against the background of the overarching duty on Ministers to comply with the law, including international law and treaty obligations, and to uphold the administration of justice and to protect the integrity of public life.
[vi] See further, C Methven O’Brien, ‘The Equality Act 2010 and support services for rape survivors: Does the UK comply with its international human rights obligations?’ (18 November 2024).
[vii] There is an exception to the L2 Reservation, concerning ‘Equal Opportunities’, which permits both legislation and the exercise of executive functions in respect of equal opportunities so far as relating to the inclusion of persons with protected characteristics in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions (the “Public Boards Exception”): Scotland Act 1998, Schedule 5, Reserved Matters, Part II, Section L2.
[viii] Scotland Act 1998, Schedule 5, Reserved Matters, Part II, Section F107. Under the same section, ‘Equal opportunity requirements’ means ‘the requirements of the law for the time being relating to equal opportunities’.
[ix] Per Scotland Act 1998, Schedule 5, Reserved Matters, Part II, Section F107, “‘Protected characteristic’ has the same meaning as in the Equality Act 2010”.
[x] Section 11 of the Equality Act 2010 provides: Sex. In relation to the protected characteristic of sex— (a) a reference to a person who has a particular protected characteristic is a reference to a man or to a woman; (b) a reference to persons who share a protected characteristic is a reference to persons of the same sex.
[xi] Under Equality Act 2010, section 212, it is further defined that “man” means a male of any age; and “woman” means a female of any age.
[xii] Parties intervening in the case were Sex Matters; Scottish Lesbians, Lesbian Project and LGB Alliance; the UK Equality and Human Rights Commission and Amnesty International UK. Their written arguments are available here https://forwomen.scot/22/10/2024/uk-supreme-court/.
[xiii] Part V of CEDAW establishes an independent expert committee with oversight over the interpretation and states’ implementation of Convention. The Committee’s views on the meaning of various provisions and their application are found in its General Recommendations. For introductory information concerning UN treaty bodies, see: https://www.ohchr.org/en/treaty-bodies/what-treaty-bodies-do.
[xiv] See sources cited at n(iii) above.
[xv] See further H Charlesworth and C Chinkin, The Boundaries of International Law. A feminist analysis (Juris, 2000), pp.212-218; D Otto, Women’s Rights, Ch.16 in Moeckli et al International Human Rights Law 3rd Edn, sections 2.1-2.2, pp 312-314.
[xvi] See further, on the context, purpose and interpretation of CEDAW, H Charlesworth and C Chinkin, The Boundaries of International Law. A feminist analysis (Juris, 2000), pp.212-218; UN Special Rapporteur on Violence Against Women, Position paper on the definition of “woman” in international human rights treaties, in particular the Convention on the Elimination of All Forms of Discrimination Against Women Special Rapporteur on violence against women and girls, Reem Alsalem (2024).
[xvii] There are no communications identified for example by CEDAW’s complaints database where the affected rights-holders are biological males: https://www.ohchr.org/en/treaty-bodies/cedaw/individual-communications . For discussion of contrasting views internationally regarding the scope of equality protections under human rights treaties, see e.g. L. Thio, Equality and Non-Discrimination in International Human Rights Law (2020, Heritage Foundation).
[xviii] See CEDAW, Declarations, reservations, objections and notifications of withdrawal of reservations relating to the Convention on the Elimination of All Forms of Discrimination against Women (10 April 2006), p.46.
[xix] CEDAW general recommendation No. 23 (1997) on women in political and public life.
At para 22: Other conventions, declarations and international analyses place great importance on the participation of women in public life and have set a framework of international standards of equality. These include the Universal Declaration of Human Rights,1 the International Covenant on Civil and Political Rights,2 the Convention on the Political Rights of Women,3 the Vienna Declaration, 4 paragraph 13 of the Beijing Declaration and Platform for Action, 5 general recommendations 5 and 8 under the Convention, 6 general comment No. 25 adopted by the Human Rights Committee,7 the recommendation adopted by the Council of the European Union on balanced participation of women and men in the decision-making process8 and the European Commission’s “How to Create a Gender Balance in Political Decision-making”.
[xx] Notably this text strikes a more strident chord than that presented, in some places, in the Committee’s earlier General Recommendation 25 (2004) on temporary special measures.
[xxi] 14 March 2019 Concluding observations on the eighth periodic report of the United Kingdom of Great Britain and Northern Ireland* CEDAW/C/GBR/CO/8.
[xxii] See also the Committee’s comments at para.16(c) recommending revision of the Public Sector Equality Duty under the Equality Act 2010 so as to address intersecting discrimination against ‘transgender women and intersex persons’: again the difference in formulation (‘women’ versus ‘persons’) applied to refer to these two groups suggests the exclusion of biological males from the treaty’s legal scope.
[xxiii] See further R. Holtmaat and P. Post (2015), ‘Enhancing LGBTI Rights by Changing the Interpretation of the Convention on the Elimination of All Forms of Discrimination Against Women?’ Nordic Journal of Human Rights, 33(4), 319–336, finding, based on a review of the CEDAW Committee’s Concluding Observations, that it has not used Article 5(a) to extend the Convention’s scope in relation to ‘LGBTI’ persons’ ‘sexual freedom’ and ‘gender identity’.
[xxiv] See e.g. D Otto, Women’s Rights, Ch.16 and M. O’Flaherty, Sexual Orientation and Gender Identity, Ch. 15 in Moeckli et al International Human Rights Law 3rd Edn (2018).
[xxv] Notably, CEDAW General Recommendation 40 was adopted in these terms despite objections from Norway regarding the prescriptive character of the 50:50 parity requirement; and also from ILGA World, urging the need to ‘provide an understanding of ‘women’ through a framework for the entirety of the General Recommendation that is inclusive of LBTI women, enabling the instrument to be read systemically in a manner that embraces diverse and intersectional identities’.
[xxvi] D. Otto, Women’s Rights, Ch. 16 in D. Moeckli et al, International Human Rights Law (3rd Edn, 2018); see also D. Otto, (2015), ‘Queering Gender [Identity] in International Law’, Nordic Journal of Human Rights, 33(4), 299–318, providing ‘examples from [CEDAW] which illustrate a reluctance to fully pursue the opportunities opened by new understandings of sex/gender and the related unwillingness to address gendered discrimination suffered by men and other genders’; S. Duffy, ‘Contested Subjects of Human Rights: Trans- and Gender-variant Subjects of International Human Rights Law’ 84 (5) Modern Law Review (2021), pp.1041-1065, concluding that ‘The CEDAW Convention established a differently gendered subject in the legal mainstream and consolidated the place of women in international human rights law, although scholars have latterly problematised the manner in which CEDAW challenges male/female hierarchies, but leaves in place an assumed male/female binary gender separation’.
See also, Rosenblum, D., (2011), ‘Unsex Cedaw, or What's wrong with Women's Rights’ Colum. J. Gender & l., 20, p.98, cf. Berta Esperanza Hernandez-Truyol, "Unsex Cedaw - No - Super-Sex It," Columbia Journal of Gender and Law 20, no. 2 (2011): 195-223; Simm, G. (2020). Queering CEDAW? Sexual orientation, gender identity and expression and sex characteristics (SOGIESC) in international human rights law. Griffith Law Review, 29(3), 374–400; E. Krivenko, ‘Sex and Gender in International Human Rights Law through the Prism of the ‘Women’ Category in Recent Case Law,’ 24(2) Human Rights Law Review 2024.
A chapter by O’Flaherty, ‘Sexual Orientation and Gender Identity’, omits reference to CEDAW (Ch. 15 in Moeckli et al International Human Rights Law 3rd Edn (2018)); an article, O’Flaherty, M. (2015). The Yogyakarta Principles at Ten. Nordic Journal of Human Rights, 33(4), 280–298, in relation to CEDAW, identifies only one reference by the CEDAW Committee to the terminology of ‘sexual orientation and gender identity’ (Concluding Observation of the Committee on the Elimination of Discrimination against Women, Panama 5 February 2010, CEDAW/C/PAN/CO/7, para 22), in evaluating the Yogyakarta Principles’ impact at international level. The report of a workshop held in 2021, recording the contents of a presentation by a member of the CEDAW Committee, summarising relevant excerpts from General Recommendations and Concluding Observations of the Committee, does not disclose any material to suggest that males have so far been admitted to protection under the Convention: Ulster University Transitional Justice Institute, The United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) and Sexual Orientation and Gender Identity, Workshop Report 2-3 June 2021. A presentation by the then UN Special Rapporteur on Sexual Orientation and Gender Identity at the same workshop, in relation to CEDAW related only that, ‘The CEDAW Committee, for example, affirms that discrimination against women based on sex and or gender is often inextricably linked with and compounded by other factors that affect women such as being lesbian, bisexual or trans.’
[xxvii] For further discussion of the UK’s international legal duties to produce sex-disaggregated data, in relation to violence against women see C. Methven O’Brien, Recording the sex of rapists: what does the law require? (21 September 2024).