Opinion on consistency with international human rights law*

Dr Claire Methven O’Brien**

Executive Summary

This opinion considers the consistency of the Prostitution (Offences and Support) (Scotland) Bill (the Bill) with international human rights law applicable in Scotland and the UK. Currently in Scotland, soliciting for prostitution is a criminal offence.^[1] The Bill seeks to repeal this offence and quash historic soliciting convictions.^[2] In parallel it would establish a new criminal offence of paying for sexual acts^[3] and a right to support for individuals exiting prostitution.^[4]

Based on treaties to which the UK is a party, and associated interpretive materials, this opinion considers that:

1. In criminalising the sale of sexual acts by individuals engaged in prostitution, Scottish law breaches applicable human rights treaty obligations, due to the discriminatory character of this approach of regulating prostitution with regard to women and girls.^[5] To achieve offence of soliciting under section 46 Civic Government (Scotland) Act 1982, should accordingly be repealed, and historical soliciting convictions pardoned / disregarded, as the Bill proposes.

2. De-regulating both the sale and purchase of sexual acts in Scotland would be inconsistent with applicable treaty obligations, given legal duties on the UK and Scottish Governments to take all reasonable measure to eliminate discrimination and prevent violence against women, to reduce demand for trafficking and for commercial sex, and to address other human rights abuses experienced by individuals in prostitution.

3. Adopting demand-side or ‘Nordic’ model legislation on prostitution in Scotland, which criminalises the purchase of sexual acts, as proposed by the Bill, does not present a risk of non-compliance with the UK’s human rights obligations. In particular, any interference with the right to privacy by legislation criminalizing the purchase of sexual acts while decriminalizing their sale and supporting exit is likely to be assessed as lawful by human rights courts or other mechanisms supervising instruments to which the UK is a party.

4. Overall, the measures proposed by the Bill would both resolve a matter giving rise to a persistent breach of international human rights laws in Scotland and contribute significantly to fulfilling international human rights duties owed to women in Scotland and borne by the UK and Scottish governments

The Prostitution (Offences and Support) (Scotland) Bill:

Opinion on consistency with international human rights law

1. Introduction

Adults and children engaging in prostitution, most of whom are female, experience high levels of homicide, rape, assault, trafficking, forced and exploitative labour practices, negative health impacts and social and economic discrimination and disadvantage.^[6] Accordingly, individuals engaged in prostitution are frequently victims of serious human rights violations.

This opinion considers the consistency with international human rights laws binding on the UK of proposals contained in the Prostitution (Offences and Support) (Scotland) Bill (the Bill).^[7] The Bill is an example of a “demand-side” (or ‘Nordic model’) prostitution law. Under this model of prostitution regulation, with the aim of eliminating and preventing prostitution, and addressing discrimination and human rights abuses experienced particularly by women and girls that are associated with prostitution, the purchase of sexual services is criminalised, while selling sexual acts is decriminalised and support made available to those exiting prostitution.

This opinion identifies the human rights of individuals and corresponding duties of states relevant to the context of prostitution and its regulation via domestic law. It concludes that:

· Scotland’s existing legal framework, which criminalizes soliciting while declining to criminalise the purchase of sexual acts, breaches the UK’s international human rights obligations, due to its discriminatory character and failure adequately to suppress violence against women and other human rights abuses linked to prostitution, the exploitation of prostitution and demand for trafficking, and because prostitution cannot be regarded as consistent with minimum international labour standards

· De-regulating both the sale and purchase of sexual acts in Scotland would be inconsistent with applicable treaty obligations, specifically those requiring that government take all reasonable measure to eliminate discrimination and prevent violence against women, to suppress demand for trafficking, and to address other human rights abuses experienced by individuals in prostitution

· Adopting demand-side or ‘Nordic’ model legislation on prostitution in Scotland, as proposed by the Bill, does not present a risk of non-compliance with the UK’s human rights obligations. In particular, any interference with the right to privacy (Article 8 ECHR) by legislation criminalizing the purchase of sexual acts while decriminalizing their sale and supporting exit is likely to be assessed as justified by the pursuit of legitimate public interest objectives, proportionate, and therefore lawful by human rights courts or other mechanisms supervising instruments to which the UK is a party.

· If duly implemented in combination with reasonable measures to support exit from prostitution, the Bill’s proposals to decriminalize soliciting, quash historical soliciting convictions and establish a new offence of purchasing sexual acts would reduce the risk of non-compliance by Scotland with international human rights law and contribute to fulfilling international human rights duties binding on the UK and Scottish governments.

Scope and method: This opinion is based on a review of relevant human rights law treaties and related interpretive materials from the United Nations and Council of Europe systems of human rights protection. It has primarily considered rights and duties arising under the ICCPR, CEDAW, ECHR, Council of Europe Istanbul Convention, standards of the International Labour Organisation and anti-trafficking obligations.

2. Prostitution: Human rights law framework

2.1 Protecting life, bodily integrity and security and the prevention of forced labour

All individuals have the human rights to life, bodily integrity and security, freedom from inhuman and degrading treatment and forced labour.^[8] Homicide, rape and assault are associated with prostitution^[9] as are trafficking, abuses of the human rights of children of women engaged in prostitution, negative health impacts, social and economic discrimination and disadvantage and breaches of minimum international labour standards.

Governments and their agents must not engage in or act complicitly with conduct or practices causing such abuses. Rather, they must enact and enforce criminal and other laws to prevent violent and sexual crime, all forms of trafficking and coerced labour including by private actors.^[10] They must further adopt measures to prevent discriminatory patterns of violence as between women and men, and girls and boys, which is prohibited on grounds of sex.^[11]

Where the UK or Scottish government fails to take reasonable and effective steps to prevent or respond to violence, physical coercion or harm, and the risks thereof to individuals, this breaches legal duties arising under human rights treaties. To avoid this, they must exercise ‘due diligence’ to protect individuals from reasonably foreseeable human rights abuses resulting from the violent acts of other individuals and reduce their incidence. In doing so, they must not act in a way that is discriminatory with reference to protected characteristics, such as sex or race.

2.2 Preventing and addressing violence and discrimination against women and girls

Rape and sexual assault are grave human rights violations. Rape may comprise torture or inhuman treatment contrary to Article 7 ICCPR and Article 3 ECHR. States must act effectively and with due diligence to prevent, criminalise and prosecute rape in accordance with international legal standards.^[12] In the context of prostitution, whether it is legal or illegal under domestic law, the effective prosecution of rape, other sexual assault and violence against women faces many obstacles.

As women and girls are disproportionately their victims, rape and sexual assault are analysed by international human rights mechanisms as gender-based violence, a form of systemic discrimination against women, and a violation of women’s right to substantive equality with men.^[13] Rape and other violence against women are associated with a wide range of other civil and political and economic, social and cultural rights violations, which also affect the children of women who are their direct victims.^[14]

Women and girls and others who sell sexual acts are at increased risk of rape, assault, and homicide.^[15] Individuals who buy sex are frequently perpetrators of violence against women, including femicide.^[16] Studies show a strong correlation between men’s use of prostitution and rape and domestic violence.^[17] In meeting commercial demand for sexual acts, ‘third parties that organize and profit from prostitution also commit significant violence against victims’.^[18]

Given these and other known risks of human rights abuse affecting individuals engaged in prostitution and their children, government duties owed towards them are heightened.^[19] Accordingly, the government’s failure to protect women against violence owing to prostitution may reasonably be assessed as a breach of their right to equal protection of the law with no requirement that this breach be intentional.^[20] Governmental and social tolerance of violence against women, including where such violence is regarded as a ‘private matter’, and in the context of prostitution, furthermore facilitates the wider persistence of violence against women and sex discrimination, and is a form of impunity for human rights abuses.^[21]

Concerning prostitution specifically, Article 6 of the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires that states,

‘take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of the prostitution of women’.

The UN Special Rapporteur on Violence Against Women has highlighted that by virtue of Article 6,

‘[CEDAW] recognize[s] the prostitution of women as a form of discrimination against women within the meaning of article 1 of the Convention, obliging States to adopt all measures to eliminate it.’^[22]

The same report analyses prostitution as ‘a system of violence’ against women and girls,^[23] that leads directly and indirectly to serious violence against women and associated human rights denials.^[24] Women are disproportionately criminalised for prostitution,^[25] which is discriminatory. Prostitution is further a cause and driver of discrimination on other grounds besides sex, including ‘Disability, age, social class, race, ethnicity, migratory and legal status, sexual orientation and gender identity’.^[26]

This view conforms with that of the CEDAW Committee which has consistently called for the decriminalisation of women in prostitution; of the sale of sexual acts, soliciting and loitering; the removal of other legal penalties; and measures to address historic convictions of women for offences related to prostitution.^[27]

Specifically with particular reference to the UK, the CEDAW Committee recommended in its most recent evaluation, that the government (para.36):

(b) Take effective measures to reduce demand for commercial sex, including by carrying out educational and awareness-raising measures targeted at men and boys and focused on combating all notions of the subordination and objectification of women;

(c) Revise legislation to decriminalize prostitution and clear the criminal records of women who have been convicted for offences related to prostitution to enable them to seek alternative forms of employment;

d) Ensure the availability of specialist services that are adequately funded, inclusive and accessible to assist women and girls in exiting prostitution;

(e) Create educational and employment opportunities for women who wish to exit prostitution;

(f) Undertake research into the prevalence and nature of prostitution in Northern Ireland and Scotland, in addition to the research that is currently under way in England and Wales, to identify the necessary changes to be made to legislation and policy;

(g) Revise its legislation to shift the burden of proof from the prosecution to the purchaser of sexual services for cases involving minors, as previously recommended (CEDAW/C/GBR/CO/7, para. 41).^[28]

These materials support the view that under instruments applicable to the UK prostitution is appropriately analysed as a practice that is inherently discriminatory and constitutes violence against women. Accordingly, a domestic legal framework that permits the commercial purchase of sexual acts,

‘provides tacit permission or encouragement to perpetrate acts of gender-based violence against women’.^[29]

On this basis, it follows that states have a duty to prevent and eliminate prostitution.^[30] This is because, under CEDAW, states are bound to repeal laws ‘which cause, promote or justify gender-based violence or perpetuate impunity’ for discriminatory acts.^[31] Besides, states must,

‘take all appropriate measures to alter the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women’.^[32]

While the text of the CEDAW itself does not explicitly require the criminalisation of the purchase of sexual acts by buyers, on the basis of extensive practice, the CEDAW Committee may be viewed as supporting prostitution’s abolition, notwithstanding the persistence of diverse national approaches to its regulation^[33] and disparate views amongst stakeholders.^[34]

The European Court of Human Rights has further affirmed the relevance of CEDAW in ‘interpreting the provisions of the Convention and the scope of the State’s obligations in specific cases’.^[35]

The UK is also a party to the Council of Europe’s Istanbul Convention (2011).^[36] This obliges the government to take comprehensive measures to prevent violence against women, protect victims and prosecute perpetrators (Articles 5–6). While the Convention’s text does not explicitly address prostitution, its preventive and protective duties regarding violence against women encompass women subjected to sexual exploitation via prostitution, as do its obligations on awareness-raising on harmful gender stereotypes (Article 17) and support services for victims (Articles 18–23). The European Court of Human Rights has informed its interpretation of positive duties of states under the ECHR (Articles 3 and 8) to prevent gender-based violence against women with reference to the Istanbul Convention, highlighting the need for special diligence where risks of abuse are heightened and the need for coordinated preventive action.^[37]

Given the foregoing analysis, a domestic legal framework, under which, as in Scotland currently, soliciting by women is criminalised while the purchase of sexual acts by men is not may reasonably be assessed as giving rise to a breach of duties on the UK under CEDAW, the ECHR and the Istanbul Convention to repeal laws that discriminate against women; to take all reasonable measures to prevent violence and discrimination against women; to end impunity for discrimination against women; and not to perpetuate practices and prejudices of a character discriminatory on grounds of sex.

2.3 Human trafficking: demand for prostitution as a root cause

As a party to the ICCPR, CEDAW, UNCRC, ECHR, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Palermo Protocol, 2000) and the Council of Europe Convention on Action against Trafficking in Human Beings (2005), the UK has legal duties to prevent and punish human trafficking and to protect victims. The Human Trafficking and Exploitation (Scotland) Act 2015 and Modern Slavery Act 2015 give partial effect to the state’s duties under the Palermo Protocol and the Council of Europe Trafficking Convention.

Such instruments establish duties on states with regard to suppressing market or commercial demand for trafficked people. Under the Palermo Protocol (Art 9(5)),

‘States Parties shall adopt or strengthen legislative or other measures, such as educational, social or cultural measures, including through bilateral and multilateral cooperation, to discourage the demand that fosters all forms of exploitation of persons, especially women and children, that leads to trafficking.’^[38]

Under CEDAW, demand is identified as a ‘root cause’ of trafficking in women and girls.^[39] ‘Failure to recognize the [role of] demand’, according to the CEDAW Committee, is ‘a major barrier to States addressing trafficking in persons, and perpetuates sexual exploitation of women.^[40] Consequently, states have a duty ‘…to discourage the demand that fosters exploitation and leads to trafficking’.^[41] This extends to investigating, prosecuting and convicting perpetrators, and implementing educational, social and cultural measures that target potential buyers.^[42] Likewise in the Council of Europe, anti-trafficking strategies must address demand, with a particular focus on demand for women and children.^[43]

A domestic legal framework such as Scotland’s, which permits the purchase of sexual acts, is on this basis may reasonably be assessed as non-compliant with international anti-trafficking obligations, given that prostitution is a significant source of demand for trafficked persons, especially women and female children.^[44]

2.4 International labour standards

The International Labour Organisation (ILO) sets minimum global labour standards. ILO ‘Core Labour Standards’ apply to all ILO member states and require freedom of association and the right to collective bargaining; elimination of forced or compulsory labour; abolition of child labour; elimination of discrimination in employment, on grounds of sex; and a safe and healthy working environment.^[45]

Amongst these, ILO Convention No. 182 (C182) on the worst forms of child labour, to which the UK is a party, obliges (Art 1) states to,

‘take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency.’

The ‘worst forms’ of child labour include ‘Child prostitution and child pornography’, and any other ‘work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children’.^[46] A ‘child’ is anyone under 18 years old (Art 2). Governments must take immediate, effective and time-bound measures, amongst others, to prevent children engaging in the worst forms of child labour; and take account of the special situation of girls (Art 7).

ILO Recommendation No.190 defines state duties to criminalise the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; to detect and prosecute those involved whether at home or abroad; to register perpetrators; and to ensure effective enforcement measures against individuals or enterprises. It also indicates a range of supportive measures for victims and those at risk of child prostitution (Art 15).

State obligations such as those arising under C182 are relevant in assessing the compliance with international law of a domestic legal framework where the purchase of sexual acts with adults is permitted given the role of the former as a driver of the subjection of children to child prostitution and sexual exploitation, for instance, because buyers do not discriminate between individuals selling sex who are under or over the legal age of majority; via the role of adult prostitution in driving and facilitating grooming and trafficking networks that also trade in children; and because if adult prostitution is tolerated or condoned by the state this inevitably enhance the social acceptability of buying sex from minors and negative stereotypes of females which affect and discriminate against girls as well as women.

Turning to ‘Decent Work’, under ILO standards, this is defined as,

‘productive work for women and men in conditions of freedom, equity, security and human dignity”.^[47]

Gender equality is a cross-cutting decent work objective. Under the ILO Violence and Harassment Convention No. 190 (2019), to which the UK is a party, states must ensure that work is free from gender-based violence and harassment, which are human rights violations, threaten equal opportunities, and are “unacceptable and incompatible with decent work’. According to C190 (Art 1),

a) “violence and harassment” in the world of work ‘refers to a range of unacceptable behaviours and practices, or threats thereof, whether a single occurrence or repeated, that aim at, result in, or are likely to result in physical, psychological, sexual or economic harm, and includes gender-based violence and harassment;

(b) the term “gender-based violence and harassment” means violence and harassment directed at persons because of their sex or gender, or affecting persons of a particular sex or gender disproportionately, and includes sexual harassment.’

ILO C190 applies to all workers regardless of employment status and in the informal economy. States have a duty in particular to identify,

‘sectors or occupations and work arrangements in which workers and other persons concerned are more exposed to violence and harassment’

and to take measures to effectively protect such persons.

Given the above standards and requirements, prostitution is not recognised as a legitimate form of work or as ‘decent work’ by the ILO. While the ILO has not adopted specific standards on the criminalisation of prostitution, the UK and Scottish governments have legal duties arising from ILO standards to take measures to prevent and address risks of violence, harassment, indignity, discrimination, unfairness and any involvement of persons under 18 in prostitution as one of the worst forms of child labour, with the particular requirements regarding criminalisation under C182 and Recommendation 190 as indicated above.

A domestic legal framework, such as Scotland’s that permits the purchase of sexual acts while exposing women to criminalisation for soliciting, entails a significant risk of non-compliance with ILO minimum standards. Likewise, a legal framework that does not penalise the purchase of sexual acts arguably appears inconsistent with duties owed in relation to preventing the harassment, sex-based discrimination, forced labour, and the worst forms of child labour, amongst others, and achieving decent work. Enacting legislation seeking to reduce demand for prostitution by decriminalising the sale of sex but criminalising its purchase, would by contrast reduce the risk of non-compliance with ILO standards.

3. Regulating prostitution through domestic law

3.1 State duties to implement human rights treaties at national level

A state may breach its treaty obligations because of an inadequate legal framework at national level or a failure by the state to prevent, punish, investigate or redress harms to human rights caused by private persons or entities.^[48] Domestic laws or practices which are inconsistent with treaty obligations must be repealed or changed.^[49]

Systemic failures to prosecute or to ensure victim protection can also violate states’ treaty obligations, which require them

‘…to investigate violations; to take appropriate measures in respect of the perpetrators…by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered…and to take other necessary steps to prevent a recurrence of violations.’ ^[50]

The duty on states to take steps to give effect to human rights protected by treaties to which they are party ‘is unqualified and of immediate effect’. Failure by government to ensure individuals’ effective enjoyment of human rights can violate international obligations and ‘cannot be justified by reference to political, social, cultural or economic considerations within the State.’ ^[51]

A victim of a human rights violation is entitled to an effective remedy.^[52] In the current context, this includes women victims of physical or sexual violence associated with prostitution; other women engaged in prostitution, as an inherently discriminatory practice and a form of violence against women; children of individuals engaged in prostitution; victims of trafficking; and those who have been subjected to any breach of core labour standards or other discrimination in the enjoyment of human rights linked to prostitution.

Such individuals are entitled to reparation, which may take the form of,

‘restitution, rehabilitation and measures of satisfaction, such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations’.^[53]

The duty on states to ensure reparation for violations is fundamental. As the UN Human Rights Committee has highlighted,

‘…the purposes of the [ICCPR] would be defeated without an obligation…to take measures to prevent a recurrence…Accordingly…[there is a] need for measures, beyond a victim-specific remedy, to be taken to avoid recurrence of the type of violation in question. Such measures may require changes in the State Party’s laws or practices…’

This means that where a practice such as prostitution, and the state’s existing approach to regulating it, are systematically associated with human rights violations, legislative reform is an international legal obligation.

3.2 Application to prostitution

Accordingly, on the basis of the preceding analysis, the Scottish government is obliged to deter, prevent and remedy human rights abuses cause by or linked to prostitution. As a result, they must ensure a legal framework that is effective in addressing physical and sexual violence, forced labour and trafficking, discrimination, harassment and indignity, and risks to health and safety linked to prostitution as well as any involvement of children in and impacts on children of prostitution.

Complexity in analysing the impacts of different legislative models in the short term have been acknowledged by human rights mechanisms,^[54] while states have historically maintained varying approaches. Nevertheless, the following conclusions may be drawn from the survey of materials above as considered in this opinion:

· Domestic legal regimes whereby the sale of sexual acts is criminalised, but the purchase is not, are discriminatory against women in that prostituted women and girls are disproportionately arrested and prosecuted, socially marginalized, persecuted, incriminated and incarcerated^[55]

· Given the duty to repeal laws that discriminate against women, which includes offences of solicitation,^[56] Scotland’s current legal framework entails a source of non-compliance with international obligations

· Where the purchase of sexual acts is not criminalised under national law, there is a significant risk of violation of duties arising under human rights treaties of non-discrimination on grounds of sex, to prevent violence against women and child prostitution, to reduce demand that leads to exploitative prostitution and trafficking, and to ensure decent work in compliance with minimum labour standards.

National approaches that ‘regulate’ prostitution as a legitimate form of work, and decriminalise both the sale and purchase of sexual acts arguably do not adequately prevent or deter human rights abuses inherent in or incidental to prostitution. Besides, in encouraging the sale of sexual acts and creating opportunities for exploitation by third parties, they appear contrary to obligations to reduce demand and duties of remedy and reparation, as well as the duty to combat social practices and stereotypes that are discriminatory on grounds of sex.^[57]

As the UN Special Rapporteur on Violence Against Women has observed, many states maintain domestic laws, in breach of their international commitments, which,

‘…foster conditions for increasing the risks of women and girls being vulnerable to entering prostitution, remaining trapped in it and being unable to exit it. States may also deliberately fail to protect prostituted women and girls because they benefit financially from the exploitation and abuse of prostituted women and girls. It is therefore relevant to speak of the “pimping State” – a State that leads efforts to sanitize and legitimize prostitution, thereby promoting the industry and render invisible its inherent exploitation. Such goals may be achieved through a variety of actions, such as criminalizing and punishing women and girls while turning a blind eye to the activities and financial gains made by pimps, or failing to take steps to stem demand or hold sexual act buyers and pimps accountable’.^[58]

Such approaches, the UN Special Rapporteur finds, have

‘aided traffickers, boosted sex tourism and expanded the overall size of the prostitution market’; ‘failed to discourage unsafe sexual practices and widened the spectrum of “offers” to include even pregnant women, and attracted vulnerable young women into the sex trade. They also place the ‘burden on prostituted women, especially those subjected to unsafe or slavery-like conditions, to pursue costly and protracted legal action against their employers through labour courts’.^[59]

This analysis accords with the consistent approach of the CEDAW Committee, which has, including with reference to the UK,

‘Signall[ed] support for abolishing prostitution, even voluntary sex work…called upon states parties to discourage demand for prostitution, [and] to develop programmes to prevent women from entering into prostitution’.^[60]

It may therefore be concluded that legislation which proposes to criminalise the purchase of sexual acts, decriminalising solicitation, quash historical solicitation convictions and support exit from prostitution (the ‘Nordic model’) is consistent with and likely to contribute to realising human rights duties applicable to the UK at international level.

5. Decisions of European human rights supervisory mechanisms

This conclusion is also consistent with the adoption by several European states— Sweden (1999), Norway (2009), Iceland (2009), France (2016), and Ireland (2017) - of laws implementing demand-side criminalisation as well as decisions of European human rights supervisory mechanisms. GRETA, the Council of Europe anti-trafficking body, has affirmed that such laws, in criminalising the purchase of sex, constitute a measure that will reduce demand for trafficked persons,^[61] at the same time highlighting the need for monitoring of new laws’ impacts to promote respect for the rights of individuals engaged in prostitution.^[62]

In addition, several cases before the European Court of Human Rights have concerned prostitution and/or trafficking and elaborated on state duties in this regard, for example:

In V.T. v. France,^[63] the ECtHR held that coercive prostitution was incompatible with the rights and dignity of the human person. In S.M. v. Croatia,^[64] the Court underlined that Article 4 ECHR, prohibiting slavery and forced labour, extends to forced prostitution and obliges states ‘to establish a legislative and administrative system prohibiting and suppressing trafficking and to take operational measures to protect actual or potential victims of trafficking, as well as a procedural obligation to investigate situations of potential trafficking.

In Krachunova v. Bulgaria,^[65] which concerned trafficking and exploitative prostitution, the Court held the state had a positive duty to ensure a victim received financial compensation for income retained by her trafficker/pimp.

In T.V. v. Spain,^[66] the Court held that the positive duty on states to investigate credible allegations of forced labour and trafficking arising under Article 4 ECHR (here concerning a minor trafficked for prostitution) were breached by significant shortcomings in the investigation into a criminal complaint she made to the Spanish authorities.

B.B. v. Slovakia (2024)^[67] concerned states’ positive duties to investigate and prosecute trafficking for prostitution under Article 4 ECHR. The Court alluded to GRETA’s recommendation to the national authorities to ensure that trafficking cases lead to effective, proportionate and dissuasive sanctions at national level for trafficking for prostitution. It found that criminal proceedings had been defective and disregarded the applicant’s notional consent to work as a prostitute in the UK, as what ‘truly mattered was her vulnerable position and the lack of any real or reasonable alternatives at the time’.

Most saliently, in the context of this opinion, in MA and Others v France (2024)^[68] the applicants challenged France’s ‘Nordic model’ legislation that criminalized the purchase of sexual acts between consenting adults as a breach of Articles 2, 3 and 8 ECHR.^[69] The applicants argued that criminalising prostitution infringed personal autonomy and sexual freedom; had diminished demand for their services, decreased their incomes, causing financial insecurity; caused them to engage in unsafe practices, entailing negative health impacts; increased their exposure to violence and rape, amongst others, by forcing them into secrecy and to resort to online solicitation because of diminished street demand. They also criticised the terms and benefits of exit programmes as inadequate.

In response, the French government argued the legislation was required by the state’s ‘positive obligations’ to protect individuals against breaches of the rights to life, against inhuman and degrading treatment and the freedom from forced labour and slavery, respectively under Articles 2, 3 and 4 ECHR.

Electing to considering the applications with reference only to Article 8 for factual reasons, the Court unanimously rejected the applications. According to the Court, it was unnecessary, in order to decide the claim, to determine whether prostitution can be freely consented to or always results from coercion, which the Court recognised might result from socioeconomic conditions. While acknowledging that personal autonomy extends to choice about how to exercise one’s sexuality,^[70] it held this principle did not apply where, as here, what was at stake was the ability to engage in prostitution as a profession or economic activity, rather than to engage in certain sexual acts at all.^[71]

The French law, the Court found, pursued legitimate aims within the meaning of Article 8(2). As part of a comprehensive framework to combat the practice of prostitution, it sought to eliminate demand for prostitution and human trafficking networks, by penalizing purchasers of sexual acts, pimping, sexual exploitation – described as ‘activities based on the coercion and enslavement of human beings’ - and to ensure the safeguarding of human dignity, to preserve public order and prevent crime.

As a matter of high social importance, where no legislative approach was yet free from controversy, the Court was bound to apply a broad margin of appreciation. On this basis, any interference with rights under Article 8(1) was assessed as proportionate to the aims pursued, in which context the Court noted inter alia: the unanimous support of all parties and interveners for decriminalising the sale of sexual acts; that the law sought to reverse the power dynamic for victims of violence linked to prostitution, by enabling them to denounce clients; measures to combat social stigma for individuals in prostitution and strengthening access to rights and protective measures; and that the sale of sexual acts by individuals was not subject to criminal prohibition.

While the applicants alleged the resources allocated to supporting exit from prostitution were inadequate, this was not sufficient to undermine the law in light of the legitimate aims pursued, ‘particularly when this choice aims to bring about profound societal changes whose effects only fully unfold over time.’ Accordingly, the French authorities had struck a fair balance between the interests at stake, and the applications failed.

Notably, in reaching its decision the Court acknowledged positively the intervention of the UN Special Rapporteur on Violence against Women, expressing support for the French law with reference to CEDAW, Recommendation No. 38, the Palermo Protocol, and UN Resolution 77/194 on trafficking in women and girls of 15 December 2022; and noting its intended deterrent effect, educational value, its potential role in combating child prostitution, and in mitigating the vulnerability of individuals in prostitution who would otherwise be at risk of solicitation charges. On the other hand, the decision reached by the Court did not refer to or align with arguments against criminalisation of the purchase of sexual acts advanced by the UN Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, such as that ‘Criminalization of sex work constitutes a direct violation of the right to privacy’^[72] or materials advanced by the Commissioner of the Council of Europe of similar effect.^[73]

6. Compatibility of Bill with human rights standards: conclusion

The Prostitution (Offences and Support) (Scotland) Bill seeks to criminalise the purchase of sexual acts, decriminalise soliciting, quash historical soliciting convictions and support exit from prostitution. This opinion has considered the consistency of such measures with international human rights obligations under treaties binding on the UK. While the Scottish Government is not itself a party to human rights treaties, it and the Scottish Parliament are bound to exercise devolved powers consistently with the UK’s international obligations.^[74]

According to the analysis presented in this opinion, Scotland’s current legal framework on prostitution may reasonably be assessed as in breach of such obligations in several respects. Enacting the Bill’s proposals could rectify such breaches, with reference to state duties concerning sex discrimination, violence against women, forced labour and trafficking, child rights and minimum labour standards, while contributing to the realisation of other human rights for individuals engaged in or at risk of engaging in prostitution at the same time.

Claire Methven O’Brien, 8 January 2026

* Disclaimer: This opinion was prepared at the request of Ash Regan MSP. This work expresses the author’s scholarly opinion in their personal capacity as a legal academic. The views expressed do not represent those of any institution with which the author is affiliated. Nothing herein is intended to constitute legal advice, nor should it be relied upon as such.

** Reader in Law, School of Law, University of Dundee.

^[1] Under Section 46 Civic Government (Scotland) Act 1982 soliciting, loitering and importuning in public for the sale of sexual acts are criminal offences. For the purposes of this paper, ‘soliciting’ refers to all three and the term is also used interchangeably with the term ‘the sale of sex’ and ‘selling sex’. Under Scottish law, the sale of sexual acts by a single individual from a residential or other establishment is not an offence, while trafficking for prostitution and brothel-keeping are.

^[2] Note however that the Bill’s promoter now proposes to amend the Bill to substitute for the draft clause on quashing a provision enacting an automatic statutory pardon for all eligible convictions and a voluntary disregard scheme for women who wish their records to be amended, modelled on the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018. For discussion, see: Scottish Parliament Criminal Justice Committee, Official Report, 26 November 2025.

^[3] Soliciting for the sale of sexual acts (kerb-crawling) is already an offence: Section 1, Prostitution (Public Places) (Scotland) Act 2007.

^[4] Prostitution (Offences and Support) (Scotland) Bill, Explanatory Notes.

^[5] While the offence of soliciting under existing legislation applies to females and males, “’the fact that s 46 of the Civic Government (Scotland) Act 1982 is phrased in gender-neutral language belies the fact that in practice the vast majority of sex workers are women’: Pamela R. Ferguson and Claire McDiarmid, Scots Criminal Law: A Critical Analysis (2025, EUP), para 15.13.1).

^[6] UN Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences, Prostitution and Violence against Women and Girls, 7 May 2024, UN Doc. A/HRC/56/4; UN Working Group on discrimination against women and girls, Guidance document of the Working Group on discrimination against women and girls, 7 Dec 2023 UN Doc A/HRC/WG.11/39/1.

^[7] Prostitution (Offences and Support) (Scotland) Bill (as introduced). See further, Scottish Parliament, Prostitution (Offences and Support) (Scotland) Bill (last visited 14.12.25.

^[8] International Convention on Civil and Political Rights (ICCPR) Arts 6, 7, 8, 9; European Convention on Human Rights (ECHR), Arts 2, 3, 4, 5; International Labour Organisation Forced Labour Convention No 29 (1930). See also, UK Modern Slavery Act 2015, s1. Under the UN Convention on the Rights of the Child (CRC), states have a duty to protect every child from “all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse” (Art 19).

^[9] UN Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences, Prostitution and Violence against Women and Girls, 7 May 2024, UN Doc. A/HRC/56/4, para16.

^[10] See e.g. UN Human Rights Committee, General Comment no. 31 (2004), The nature of the general legal obligation imposed on States Parties to the Covenant.

^[11] ICCPR Art 2; ECHR, Art14; UNCRC Art 2.

^[12] CEDAW Committee, General Recommendation No 35, para 24, Istanbul Convention (2011), Art 5.

^[13] Committee on the Elimination of Discrimination against Women, general comment No. 19 (1992), para. 6.

^[14] CEDAW Committee, General Recommendation No 19 (1992); CEDAW Committee, General Recommendation No 35 on gender-based violence against women, updating general recommendation No 19.

^[15] CEDAW Committee, General Recommendation No 19 (1992), para7; UN Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences, Prostitution and Violence against Women and Girls, 7 May 2024, UN Doc. A/HRC/56/4.

^[16] Ibid, para.26, citing UNODC, Global Study on Homicide, 2019, fn114; see also Lord Advocate Dorothy Bain KC, Letter to Scottish Parliament Criminal Justice Committee, 9 December 2025.

^[17] Ibid, para.23, citing UNDP, UN Multi-Country Study on Men and Violence in Asia and the Pacific, 2013, fn97.

^[18] Ibid.

^[19] See e.g. Osman v UK (1998), Vilnes & others v Norway (2013), Eremia v Moldova (2013), Brincat & others v Malta (2014). As acknowledged e.g. by the EU Directive on Combating Violence against Women and Domestic Violence: rec. 71.

^[20] Eremia v Moldova (2013), para.85.

^[21] CEDAW Committee, General Recommendation No 35, para19.

^[22] UN Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences, Prostitution and Violence against Women and Girls, supra n10, Para 36, emphasis added.

^[23] Ibid.

^[24] Ibid., paras 10-16, 17-18, 21, 22-24.

^[25] CEDAW Committee, General Recommendation No 33, para5.

^[26] Ibid., para 8.

^[27] J Chuang, S Sarugaser-Hug, ‘Article 6’, in The UN Convention on the Elimination of All Forms of Discrimination against Women and Its Optional Protocol A Commentary, P Schulz et al eds (2^nd Edn, 2022), p272 citing CO UK CEDAW/C/GBR/CO/8 (2019), para 36c. See also CO Nepal, CEDAW/C/NPL/CO/6 (2018) para27(a) and CO Mauritius, CEDAW/C/MUS/CO/8 (2018), para19(g), CO Norway CEDAW/C/NOR/CO/9 (2017) para 29(a).

^[28] CEDAW/C/GBR/CO/8 (2019).

^[29] CEDAW Committee, General Recommendation No 35, para 24.

^[30] CEDAW Committee, General Recommendation No 38 on trafficking in women and girls in the context of global migration (2020), para63(a); see J Chuang, S Sarugaser-Hug, ‘Article 6’, above n22, p265.

^[31] CEDAW Committee, General Recommendation No 35., para 26 (a).

^[32] CEDAW Committee, General Recommendation No 38 on trafficking in women and girls in the context of global migration (2020), 30 with reference to Article 5 CEDAW.

^[33] J Chuang, S Sarugaser-Hug, ‘Article 6’, above n22.

^[34] See e.g. Amnesty International policy on state obligations to respect, protect and fulfil the human rights of sex workers (2016).

^[35] Opuz v Turkey (2009), para.164.

^[36] Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (2011) CETS No 210.

^[37] See e.g. Talpis v Italy (2017), Kurt v Austria (2021), A and B v Georgia (2022).

^[38] EU Directive on Combating Violence against Women and Domestic Violence similarly requires EU Member States to deploy preventive measures that ‘shall aim to target and reduce the demand for victims of sexual exploitation’; Art. 34(6).

^[39] CEDAW Committee, General Recommendation No 35, para 30, with reference to Article 9(5), Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000). See also Council of Europe Convention on Action against Trafficking in Human Beings (2005), Art 6.

^[40] CEDAW Committee, General Recommendation No 35., para 30, with reference to article 9 (5), Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (2000).

^[41] CEDAW Committee, General Recommendation No 38 on trafficking in women and girls in the context of global migration (2020), para 6.

^[42] GR No 38, paras 61-64; J Chuang, S Sarugaser-Hug, ‘Article 6’, in The UN Convention on the Elimination of All Forms of Discrimination against Women and Its Optional Protocol A Commentary, P Schulz et al eds (2^nd Edn, 2022), p267.

^[43] Council of Europe Convention on Action against Trafficking in Human Beings (2005), Art 6.

^[44] UN Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences, Prostitution and Violence against Women and Girls, 7 May 2024, UN Doc. A/HRC/56/48, para.25, 29.

^[45] ILO, Declaration on Fundamental Principles and Rights at Work (1998, 2022)

^[46] ILO Convention No.182 Worst Forms of Child Labour, 1999 (No. 182), Art 3.

^[47] ILO, Proceedings of the 87th Session, International Labour Conference; Geneva, Switzerland. 1 June 1999: https://www.ilo.org/public/english/standards/relm/ilc/ilc87/rep-i.htm.

^[48] UN Human Rights Committee, General Comment no. 31 (2004), The nature of the general legal obligation imposed on States Parties to the Covenant.

^[49] Ibid. See also Basic Principles and Guidelines, Principle 35(b).

^[50] Updated Set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1), 2005.

^[51] Ibid, para. 14 with reference to Article 2 (2) ICCPR.

^[52] Basic Principles and Guidelines, supra n31.

^[53] Ibid., para.6 with reference to Art 2(3) ICCPR.

^[54] MA and Others v France (2024), discussed in next section.

^[55] Ibid., para 28. Accordingly, for instance, GRETA has, for instance, urged Hungary to repeal legislation permitting children aged 14-18 to be fined for prostitution. The Minor Offences Act was amended in 2020 to provide that persons under the age of 18 shall not be punished for the provision of sexual service.

^[56] CEDAW, Article 2 (g).

^[57] Ibid., para 29. Total decriminalisation may increase demand and increase sex trafficking, violence, abuse and rape, as well as money laundering and drug trafficking: Ibid., para. 144.

^[58] UN Special Rapporteur on Violence Against Women and Girls, Its Causes and Consequences, Prostitution and Violence against Women and Girls, 7 May 2024, UN Doc. A/HRC/56/48, para 26.

^[59] Ibid. para. 150.

^[60] J Chuang, S Sarugaser-Hug, ‘Article 6’, in The UN Convention on the Elimination of All Forms of Discrimination against Women and Its Optional Protocol A Commentary, P Schulz et al eds (2^nd Edn, 2022), p274, footnotes omitted.

^[61] GRETA, Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Norway, GRETA (2013)5; Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by France GRETA (2017)17.

^[62] GRETA Third Evaluation Report on Ireland, GRETA 2022(12).

^[63] VT v France, App. no. 37194/02, 11 September 2007.

^[64] S.M. v. Croatia [GC], no. 60561/14, 25 June 2020.

^[65] Krachunova v. Bulgaria, no. 18269/18, §§ 67-75, 28 November 2023. See further, Stoyanova, V. (2024). KRACHUNOVA V. BULGARIA: NEW POSITIVE OBLIGATION UNDER ARTICLE 4 ECHR TO COMPENSATE VICTIMS OF HUMAN TRAFFICKING FOR PECUNIARY DAMAGES, Strasbourg Observers (2024).

^[66] T.V. v. Spain 19 (application no. 22512/21), delivered on 10 October 2024.

^[67] B.B. v. Slovakia 20 (application No. 48587/21) 24 October 2024.

^[68] M.A. and Others v France Application Nos 63664/19 and 4 others, 16 December 2024.

^[69] Law no. 2016-444 of April 13, 2016, articles 611-1 and 225-12-1 French Penal Code.

^[70] Affaire KA et AD v Belgique (Requêtes nos 42758/98 et 45558/99), 6 July 2005, para.85.

^[71] In this respect the decision contradicts the contention that ‘As a matter of design, criminalization of consensual sex work between adults undermines the right to privacy’; that ‘all laws prohibiting consensual sex outside marriage may be in breach of Article 17 (privacy) of the ICCPR’ and that the

‘right to privacy equally applies to consensual sex between adults for remuneration’ in the same way it applies to homosexuality: Amnesty International, Policy on state obligations to respect, protect and fulfil the human rights of sex workers (2016), p29.

^[72] MA v France, Intervention of the UNSR on Health, 30 September 2021.

^[73] A legal challenge to Belgian legislation passed in 2022 decriminalising prostitution, on the basis that commodifying sexual acts via commercial contracts is inconsistent with women’s human dignity and equality, under Article 3 ECHR and CEDAW Articles 2 and 6, has recently been initiated, underlining the legal risk for states owing to frameworks that fail to meet states’ positive obligations to protect against rights violations linked to prostitution: European Women’s Lobby, ‘Complaint against Belgium’s Prostitution Law’ (Press Release, 2023).

^[74] Under the Scotland Act 1998 the Scottish Parliament may not enact legislation incompatible with the ECHR and Scottish Ministers must act consistently with the Convention: Scotland Act 1998 s29(2)(d), s57(2).

This note demonstrates that, when it comes to individualised risk assessment, what matters is not if it’s done, but how it’s done: the selection of factors or parameters with reference to which risks are identified and assessed is crucial.

If only risks to the rights of one category of prisoners, or recognised by one legal standard, for example, are cited, in guidance for decision-makers, then the outcome may be as good as a foregone conclusion.

What is unmentioned matters as much as what is mentioned.

The note refers mostly to the SPS’ 2014 policy, because more information is publicly available on outcomes of decision-making under it (see further here) than under the SPS’ revised 2024 policy. In material respects, the 2024 and 2014 policies are the same.

1. Scottish Prison Service policy on the allocation of trans prisoners (2014)

1.1 The SPS’ Gender Identity and Gender Reassignment Policy for those in our Custody (2014) aimed ‘to ensure that individuals who identify as transgender people or who intend to undergo, are undergoing or have undergone gender reassignment receive respect and fairness at all times from the Scottish Prison Service.’

1.2 Under this policy, inter alia [emphasis added]:

- ‘The person in custody’s gender identity and corresponding name and pronouns must be respected.’

- ‘The accommodation provided must be the one that best suits the [transgender] person in custody’s needs and should reflect the gender in which the person in custody is currently living.’

- ‘Restrictions to association with other people in custody should be avoided wherever possible.’

- ‘Rubdown and body searches should be conducted in accordance with the gender in which the person in custody is currently living, rather than their physical characteristics’

- ‘Confidentiality must be maintained. Information about a person in custody’s gender reassignment should only be shared with other staff without the person in custody’s permission where this is essential to manage the risk of crime. Staff must not reveal information about a person in custody’s gender reassignment to other people in custody’

- ‘The social gender in which the person in custody is living should be fully respected regardless of whether or not the person in custody provides any evidence of having a gender recognition certificate under the Gender Recognition Act 2004’.

1.3 Further,

- ‘A male-to-female person in custody living permanently as a woman without genital surgery should be allocated to a female establishment. She should not be automatically regarded as posing a high sexual offence risk to other people in custody and should not be subject to any automatic restrictions of her association with other people in custody. However, if there is clear evidence that she, as an individual, may pose a sexual offence risk, then this should be dealt with as for any other person in custody posing a risk. Only where a risk assessment determines it is justified, should she be subject to increased staff supervision or restrictions of her association with other people in custody.’

- ‘The genital appearance of a transgender person in custody must not be used to determine which gender of Prison Officer should search them. There is no legal requirement for a transgender person to undergo any surgery as part of their gender reassignment’;

- ‘Any staff concerns about performing searches on transgender people in custody should be initially addressed through the provision of additional staff training and information about gender reassignment and equality requirements.’

- Where a transfer to an alternative establishment is being considered for a transgender person in custody, a gender reassignment case conference should be convened which additionally involves a manager from the potential alternative establishment. The case conference should explore the specifics of how the person in custody will be accommodated if transferred to the alternative establishment and the decision rationale recorded fully. The case conference should consider whether the transfer is likely to improve or reduce the following:

i. respect for the person in custody’s gender identity;

ii. the dignity of the person in custody in regard to their gender identity;

iii. the person in custody’s mental health and wellbeing;

iv. the person in custody’s social integration and access to mainstream offender outcomes provision;

v. the safety of the person in custody and other people in custody.

vi. Where there are concerns about potential reduction in any of the above as a result of the proposed transfer, the gender reassignment case management conference should consider and record decisions about strategies for preventing such reduction and clarify the rationale behind the proposed transfer.

1.4 As regards human rights, the 2014 SPS policy provided:

‘The Human Rights Act 1998 incorporates the European Convention on Human Rights into UK law for everyone. It means that everyone has the right not to be discriminated against on grounds of gender identity and gender reassignment in relation to any of the human rights contained in the European Convention on Human Rights.

a. The right to respect for private and family life, home and correspondence: This includes the right to privacy about undergoing gender reassignment so the Scottish Prison Service must not reveal without permission, except to protect safety or prevent crime, any information about a person in custody’s gender reassignment.

b. This includes the right to have any new name, title and gender used in all correspondence and in public sector records.

c. The right to freedom of expression: This includes the right to freedom of expression of gender identity [sic] whether or not this conforms with the sex assigned at birth. Free expression of gender identity can involve modification of bodily appearance or function by medical, surgical or other means and other expressions of gender, including dress, speech and mannerisms.’

1.5 With regard to UK equality legislation, the 2014 SPS policy summarised its potential implications for the protected characteristics of gender reassignment and disability only as they concern transgender prisoners, and not any protected characteristics applicable to women prisoners or female prison staff.

1.6 In summary, the 2014 SPS policy did not acknowledge, at all, the internationally-protected human rights of women prisoners and female prison staff. These include the absolute right against torture, inhuman and degrading treatment under Article 3 ECHR. The Article 3 ECHR rights of biological women and female prison staff must be interpreted in light of their specific characteristics, as a general population, and individually.

Other internationally-protected human rights of women, and correlate duties of public authorities, that require to be considered in the context of any impact assessment preparatory to decisions to allocate biological males to female prisons would also include those under the Council of Europe’s Istanbul Convention, CEDAW. Likewise relevant are other international standards relating to the rights of women in detention, such as the Mandela and Bangkok rules.[1]

1.7 Accordingly,

- The 2014 SPS policy did not provide for an adequate or complete human rights-based process of evaluating decisions regarding the management and accommodation of transgender prisoners, with due regard to the potential for violation of the rights of female prisoners and female prison staff;

- Failed to acknowledge the potential for direct or indirect sex-based discrimination, in the enjoyment of internationally protected rights, including Article 3, 8, 9 or 10 ECHR, as a result of the policy’s application, or the particularly grave character of the violation of Article 3 ECHR on the basis of a protected characteristic;

- Generally failed to require due regard to be had, in the context of relevant decision-making, to the internationally-protected human rights of female prisoners and female prison staff.

2. Application of SPS 2014 policy

2.1 In early 2023, specific cases applying the SPS 2014 policy were widely reported by Scottish, UK and international news media.

2.2 In one case, a transgender woman who was convicted (as a woman) of raping two women (when a man) was initially remanded in custody to a women’s prison, Cornton Vale (Isla Bryson: What is the transgender prisoners row all about? BBC 30.01.23). Following debate in the Scottish Parliament, the prisoner in question was reportedly transferred to the male wing of another prison.

2.3 In a second case, a transgender prisoner with a history of violent offending, including offences against women, prior to and during his detention, reportedly sought under the policy to be transferred to a women’s facility (Tiffany Scott: Call to block trans prisoner's move to women's jail, BBC, 29.01.23).

2.4 These cases prompted renewed media and political focus on earlier instances where individuals with histories of violent offending were allocated or sought allocation to women’s prisons (e.g. Prison service criticised for moving trans woman to Cornton Vale, BBC, 01.12.22, SCOTLAND: Serial Rapist Seeking Transfer to Women’s Prison Following Name Change, Reduxx, 15.01.23: SCOTLAND: Rapist Begins Identifying As Transgender, Boasts of Potential Transfer to Women’s Prison, Reduxx, 21.01.23).

2.5 Media reporting at this time also highlighted the testimony of women prisoners, including survivors of violence against women, about experiences of detention in prisons where male-to-female transgender prisoners were accommodated (e.g. Ex-prisoner was 'shaking with fear' while sharing shower block with violent trans inmates at Scots prison, Daily Record, 29.01.23). One former prison governor of a Scottish prison publicly shared a similar account relating, for instance, female prisoners’ relapse into substance misuse and psychological breakdown as a result of allocations.

2.6 In addition, such cases revealed other potential breaches of the human rights of women and girls, and failure to protect them against violence, arising from the policies and approaches of criminal justice actors relating to the management and oversight of transgender persons charged with violent offences prior to trial (Transgender double rapist enrolled on a beauty course at college and attended classes with unsuspecting teenage female students AFTER being charged for sex attacks, Daily Mail, 26.01.23; Isla Bryson: Former classmate of trans rapist feels 'violated', BBC, 28.01.23).

3. 2024 SPS Policy and Operational Guidance on transgender prisoners

3.1 A new policy on transgender prisoners was published by the SPS in December 2023. The policy was accompanied by Operational Guidance published in February 2024.

3.2 Yet in material respects the 2024 policy is the same as the 2014 policy. Both emphasise individualised risk assessment of trans prisoners, while failing to reflect women’s internationally-protected human rights under the ECHR, CEDAW, the Istanbul Convention or other applicable standards and materials relating to the rights of women in detention.

3.3 The 2024 Policy indicates its ‘policy intent’ as being to

‘…admit, place, and manage transgender people in a way which is rights-based, consistent with the obligations of SPS as an Executive Agency of the Scottish Government, as a public body, and as a prison service which seeks to promote the health, safety, and wellbeing of all people who live in Scotland's prison system.’

3.4 Yet the 2024 SPS policy, like the old one, restricts its focus on ‘rights’ to one segment of the prison population: transgender individuals. With regard to female prisoners and prison staff, the 2024 policy focuses on ‘safety’ – which is clearly taken to mean their physical safety - rather than broader set of parameters relevant to an assessment of impacts on their rights under the instruments enumerated above.

3.5 Then, even on the basis of this rump parameter of physical safety, via its Violence against Women and Girls (VAWG) Criteria, the 2024 SPS Policy fails to take a precautionary approach:

- The policy establishes only a weak presumption that ‘transgender women’ that have committed sexual or violent offences against women will not be admitted to women’s prisons

- The presumption only applies in cases where a ‘transgender woman’ has been convicted, remanded or found to have committed one of a closed list of specified offences, against a woman, which sets a very high threshold, given the high proportion of non-reporting and delayed-reporting of such crimes by victims, and which excludes, for example, cases where individuals may have been charged, where complaints might have been made against them, or where data from support or other services might indicate risk factors or behaviour

- The presumption can be rebutted where an SPS ‘Risk Management Panel’ and ‘Executive Panel’, find there to be ‘compelling evidence’ that the transgender prisoner in question ‘does not present an unacceptable risk of harm to those in the women's prison’.

The assessment of risk, which might be based on objective criteria, is hence subordinated to the vague notion of ‘acceptability’ to the SPS, which is not further defined, nor parameters set for what evidence is admissible in this context, or what might make it ‘compelling’.

4. Conclusion

4.1 Given the above, besides the question of consistency with the UK Equality Act 2010, the SPS’ previous and current policies on accommodation and allocation of transgender prisoners, and the approach taken to implementation of such policies in practice, appear to breach women’s internationally protected human rights and correlate duties arising on public authorities as articulated by the Istanbul Convention and the ECHR, as well as other international standards relating to females in detention.

4.2 It is not correct, either, to claim, as the Scottish Government did in its response (3 April 2025) to my letter sent to John Swinney for International Women’s Day, that the SPS’ guidance is compliant with the ‘ECHR, the Equality Act 2010 and all other relevant legal instruments’.

4.3 It is crucial to recall that previously, the SPS and other prison services already had a framework for managing the risks posed to women by male prisoners. It was called sex-segregation.

4.4 There is one very good reason, then, why the SPS had to devise a new policy and risk assessment framework in 2014, and why that framework had to be one that considered all the (established and putative) human rights of transgender prisoners, while excluding from view all the human rights of women prisoners from the analysis. If both sets of rights, and risks to them, had been included, the policy outcome yielded by the exercise would have been the same one it started with: a sex-segregated prison establishment.

4.5 Only by erasing women’s internationally protected human rights from the face of the ‘individualised’ risk assessment exercise to which the SPS committed, could the outcome preferred be guaranteed. What is unmentioned matters as much as what is mentioned.

[1] See further: Women in prison [Factsheet] - CPT (coe.int); Solitary confinement of prisoners - CPT (coe.int); Imprisonment - CPT (coe.int); Guide on Article 3 of the European Convention on Human Rights; Guide on Article 8 of the European Convention on Human Rights; Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention; United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders with their Commentary; United Nations Standard Minimum Rules for the Treatment of Prisoners.

Readers should also note that this response was issued by the Scottish Government in April.

BY EMAIL

3 March 2025

Dear First Minister

International Women’s Day 2025: Abuse of women’s human rights in Scotland

I am a member of the Scottish Human Rights Commission. This letter is written in a personal capacity and should not be taken as representing those of the Scottish Human Rights Commission or any other organisation.

I am writing to you on the occasion of International Women’s Day 2025 to highlight continuing abuses of women’s human rights in Scotland, resulting from policies adopted by the Scottish Government and other duty bearers further to the view that biological males asserting transgender identities should be treated as women or girls.

In line with the international treaties discussed below, the Scotland Act 1998,[1] Human Rights 1998 and Scottish Ministerial Code,[2] the Scottish Government has a duty to act to end these abuses. It should do so and facilitate adequate remediation for those who have suffered as a result, with urgency. Failure to do so exposes the Scottish Government and Scottish public authorities to potential liabilities under the Human Rights Act 1998, and Equality Act 2010, amongst others. It also directly contradicts the Scottish Government’s high-profile and regularly advertised commitments to ‘create an inclusive Scotland that protects, respects and fulfils internationally recognised human rights’.

1. Women’s human rights under international law binding on the UK

The UN Charter and Universal Declaration of Human Rights affirm ‘the equal rights of men and women’. Women bear all the rights enumerated by the ICCPR and ICESCR, each of which obliges states parties to uphold human rights ‘without distinction’ as to ‘sex’.

In addition, the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) was adopted to secure women’s ‘substantive equality’ with men (CEDAW General Recommendation No. 25, para.8).

CEDAW defines states parties’ duties to protect women from and eliminate discrimination against them. It was ratified by the UK in 1986 and in line with the Vienna Convention on the Law of Treaties (VCLT) it is binding on the UK.

Article 1 CEDAW defines ‘discrimination’ against women broadly, providing that:

…‘the term "discrimination against women" shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’

As the CEDAW Committee has highlighted, on this basis, state duties under CEDAW,

‘[go] 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’.

Under Article 2 CEDAW, which defines states’ core obligations under the Convention:

“States Parties condemn discrimination against women in all its forms, agree to pursue by all appropriate means and without delay a policy of eliminating discrimination against women and, to this end, undertake:

(a) To embody the principle of the equality of men and women in their national constitutions or other appropriate legislation if not yet incorporated therein and to ensure, through law and other appropriate means, the practical realization of this principle;

(b) To adopt appropriate legislative and other measures, including sanctions where appropriate, prohibiting all discrimination against women;

(c) To establish legal protection of the rights of women on an equal basis with men and to ensure through competent national tribunals and other public institutions the effective protection of women against any act of discrimination;

(d) To refrain from engaging in any act or practice of discrimination against women and to ensure that public authorities and institutions shall act in conformity with this obligation;

(e) To take all appropriate measures to eliminate discrimination against women by any person, organization or enterprise;

(f) To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women…’

As the CEDAW Committee has clarified, under Article 2 CEDAW,[3]

“16. States parties are under an obligation to respect, protect and fulfil the right to non-discrimination of women and to ensure the development and advancement of women in order that they improve their position and implement their right of de jure and de facto or substantive equality with men. States parties shall ensure that there is neither direct nor indirect discrimination against women. Direct discrimination against women constitutes different treatment explicitly based on grounds of sex and gender differences. Indirect discrimination against women occurs when a law, policy, programme or practice appears to be neutral in so far as it relates to men and women, but has a discriminatory effect in practice on women because pre-existing inequalities are not addressed by the apparently neutral measure. Moreover, indirect discrimination can exacerbate existing inequalities owing to a failure to recognize structural and historical patterns of discrimination and unequal power relationships between women and men.”

In addition,

“17. States parties also have an obligation to ensure that women are protected against discrimination committed by public authorities, the judiciary, organizations, enterprises or private individuals, in the public and private spheres. This protection shall be provided by competent tribunals and other public institutions and enforced by sanctions and remedies, where appropriate. States parties should ensure that all Government bodies and organs are fully aware of the principles of equality and non-discrimination on the basis of sex and gender and that adequate training and awareness-raising programmes are set up and carried out in this respect.”

Amongst further relevant provisions of CEDAW, Article 3 provides that:

“States Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men.”

Although the position has been argued for the Scottish Government in litigation, there is currently no legal basis for the view that CEDAW extends in the scope of its protection to biological males.[4] If it did, CEDAW would be deprived of its central purpose and the rights it seeks to establish for women of all meaning.

In addition to the instruments discussed above, women with particular characteristics such as disability enjoy human rights under the UN’s other relevant specialised treaties and, at Council of Europe level, under the Istanbul Convention and European Convention on Human Rights (ECHR), the latter given effect domestically via the Human Rights Act 1998.

This, in outline, is the framework of women’s international human rights to which law, policy and practice in Scotland must give effect and with reference to which the following measures and situations in Scotland amount to continuing denials of women’s human rights. Domestic legal rules, such as those contained in the Equality Act 2010, which aim to secure equal treatment for women, and other rules that may affect the achievement of women’s substantive equality with men, such as the Gender Recognition Act 2004, must furthermore be situated in this broader legal context.

2. Prisons: SPS Policy for the Management of Transgender People in Custody

The human right against torture, inhuman or degrading treatment or punishment is absolute and may not be balanced against other human rights, governmental objectives or individual needs. [5]

For detained persons, custody entails ‘an inevitable element of suffering and humiliation’ that does not per se violate the prohibition against torture. Notwithstanding, the vulnerability inherent in detention entails a duty to guarantee prisoners’ wellbeing. Penitentiary systems must be organised ‘to ensure respect for the dignity of detainees, regardless of financial or logistical difficulties’ (Mamedova v Russia). Suffering not strictly required by a detainee’s own conduct may diminish human dignity (Ribitsch v Germany): solitary confinement; segregation (X v Turkey); strip-searches, where not linked to security needs, or being required to undress before the opposite sex have hence breached Article 3 of the ECHR. The duration and cumulative effect of conditions of detention (Dougoz), as well as specific impacts experienced by individuals (Kalashnikov v Russia) must be accounted in assessing whether the minimum level of severity required by Article 3 has been met.

The prohibition of torture is universal. But its threshold may vary according to the specific status and characteristics of individuals. For women, these are reflected in international standards on women’s human rights, on the prohibition against torture as it applies to women prisoners, and minimum international standards concerning women prisoners. The common assumption of international minimum standards on prisons, as well as the UK Prison Rules, is that prisoners should be accommodated on a single-sex basis. State duties to prevent violence against women, furthermore, extend to preventing women’s psychological as well as physical safety in custodial settings. Such duties owed to women prisoners are not therefore limited only to the prevention of physical inter-prisoner violence or sexual assault.

Criminal justice research and international monitoring of UK and Scottish prisons[6] highlight the likelihood that female prisoners are survivors of physical violence, sexual, psychological or emotional abuse affected by trauma, mental illness, anxiety, depression, self-harm and substance misuse. These factors are crucial in evaluating the consistency with the requirements of Article 3 ECHR of conditions of women’s detention, and hence the legality of policies and decisions to place males in the female estate. Since in detaining an individual, the state interferes directly with protected human rights, the question of ‘balancing’ rights under Article 3 with the rights of others does not arise, nor is there any a necessity to show a discriminatory intent or effect for Article 3’s violation.[7]

According to Scottish Prison Service policy, trans-identifying male prisoners may be accommodated in the female estate, following an individualised decision-making process. While the relevant human rights and equality impact assessment alludes to the human rights of ‘non-transgender’ women prisoners, it does not accurately reflect the risks posed to females by admission of biological males to the female estate, or their legal implications. Due consideration of potential impacts on women prisoners’ human rights under Article 3 is lacking; public authorities’ obligations under the Istanbul Convention are not even mentioned. Rather, throughout the assessment, risks to women’s human rights are systematically diminished, discounted or deemed acceptable. In tandem, the scope in law and content of transgender individuals’ rights is overestimated, with reference to materials that lack legal consequence, such as the Yogyakarta Principles. Accordingly, the policy appears inconsistent with women’s right to be free from torture, inhuman and degrading treatment or punishment, under European and UN standards.

In addition, given more males than females assert transgender identities; the smaller numbers of female prisoners in total; their greater vulnerability to physical violence; and the incidence of conditions entailing psychological vulnerability amongst female detainees, amongst other considerations, the policy appears to entail discrimination against women under CEDAW.

3. Violence against women: Istanbul Convention

i) Single-sex survivor services for victims of violence against women

The Council of Europe’s Istanbul Convention defines the duties of states parties to prevent, protect and support victims of violence against women. One of its specific requirements is the provision of rape crisis services for survivors of violence against women and girls (VAWG) on a single- and separate-sex basis.[8]

In Scotland, albeit some providers have recently changed their policies in this regard, the majority of rape crisis service providers in Scotland appear to operate policies according to which these are open to biological males. Under Council of Europe standards, this puts women survivors at risk of secondary victimisation or re-traumatisation, and means that rape crisis services are not appropriate, accessible or suitable to the needs of female victims.[9]

The Scottish Government should inform rape crisis service providers of the applicable duties arising under human rights laws that are binding in the UK and ensure that compliance with them is a condition of Scottish government funding, as a matter of urgency.

ii) Violence against women: sex-disaggregated data

The Istanbul Convention also requires states parties to collect data on all forms of violence against women. As a ‘minimum requirement’, recorded data on victims and perpetrators should be disaggregated by sex, age, type of violence as well as the relationship of the perpetrator to the victim and geographical location.[10] This requirement is reinforced by CEDAW and other international human rights and statistical standards.[11]

Such standards are not met however by current policy and practice in Scotland. On all its systems, and in relation to all offences, Police Scotland uses sex and gender interchangeably. The force does not ‘routinely ask for information of gender or sex but bases its sex/gender identification of individuals on self-declaration or ‘…on how the person presents to officers at the time of engagement’, unless doing otherwise is ‘evidentially critical’, without requiring authentication of biological sex or gender identity.

According to Police Scotland, this approach reflects ‘legislative compliance, operational need and the values of respect, integrity, fairness and human rights’, while also ‘promoting a strong sense of belonging’. In truth, however, it directly contradicts explicit international human rights requirements as noted above. The Scottish Courts and Tribunals Service, and the Crown Office and Procurator Fiscal Service mirror Police Scotland’s approach, in line with Scottish Government Guidance for public bodies on collecting sex and gender data (2021) for operational, statistical and research purposes.

The Scottish Government and other duty bearers in Scotland have a duty to ensure the collection of accurate and comprehensive data on violence against women, without which it cannot be effectively addressed. Besides, violence against transgender individuals cannot be tracked without information on both the sex and gender of victims. The Scottish Government make this clear to Police Scotland and urge the force to undertake to respect these obligations in the context of its current ‘wide-ranging’ sex and gender review.[12]

4. Strip searches: British Transport Police and UK National Police Chiefs’ Council

Permitting individuals to be stripped searched by law enforcement officers of the opposite sex prima facie breaches Articles 3 and 8 of the ECHR and parallel protections under other human rights treaties.[13]

The British Transport Police operate in Scotland.[14] Its Transgender Search Policy seeks to permit male officers with Gender Recognition Certificates (GRC) to strip-search women. The UK National Police Chiefs Council (NPCC) also appears set to propose guidance that police forces should allow biologically male officers with a GRC to strip search women and girls. Further, the NPCC guidance appears to suggest that females objecting to strip search by a member of the opposite sex should be subject to sanctions.

With reference to rights established under CEDAW, the Istanbul Convention and ECHR as outlined above, these policies embody an unlawful, unacceptable and discriminatory regression in the protection of women’s human rights in Scotland. Again, the Scottish Government, as a duty bearer under the ECHR and Human Rights Act 1998, must engage with both bodies to ensure that these policies are abandoned and the protection of women’s human rights restored.

5. School toilets

Currently the law in Scotland requires that all school toilets are single-sex. This protects children’s bodily privacy and shields them from the risk of physical and sexual assault, indecent exposure, voyeurism, upskirting and other forms of cyber-abuse.

In light of Scottish Government guidance, many schools are however ignoring this obligation: a 2024 survey found that only 1 in 20 Scottish schools have enough single-sex toilets, while the same number have no single sex toilets at all. It has been reported that, as a result, pupils and especially girls are using supermarket toilets at lunch, not drinking during the day, or not using toilets during school hours, entailing adverse health risks. The Scottish Government is now consulting on removing the statutory requirement for equal provision of separate male and female toilets, which would put girls’ rights to privacy, bodily autonomy and equal rights to education in further jeopardy.

Under Article 19 of the UN Convention on the Rights of the Child, states must, without discrimination,

‘…take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.’

Article 24 CRC establishes children’s right to the highest attainable standard of health. Article 34 CRC obliges states parties to protect children from all forms of sexual exploitation and sexual abuse.

Under CEDAW, states furthermore have the duty to take all appropriate measures to eliminate discrimination against women and girls and ensure their achievement of substantive equality with males in education. The Istanbul Convention entails duties for government to prevent and protect girls against violence and cyber violence against women and girls.[15] Dis-establishing single sex toilet facilities in schools cannot be squared with these duties. The Scottish Government must accordingly redress current shortcomings in the provision in practice of separate sex school toilets and ensure that any future changes to the regulation of school toilet provision advance rather undermine children’s protection.

6. Single-sex spaces and changing facilities

This issue has received much attention in the Scottish Parliament and media recently, in light of the ongoing case of Peggie v NHS Fife and that of For Women Scotland v Scottish Ministers in which judgment is pending.[16]

Aside from these cases, there can be no doubt that the internationally-protected human rights of women to privacy, to bodily integrity and protection against sexual and other violence, to freedom of movement and association, to non-discrimination in the enjoyment of all human rights and in the world of work, and the substantive human right to equality of women and girls with men under CEDAW, in combination with the principles of interdependence, indivisibility and effectiveness of human rights, demand the provision of single-sex spaces and facilities in a variety of social contexts, just as they require sex de-segregation in others.

Vice versa, requiring women and girls to expose their naked bodies before members of the opposite sex as an effective condition of accessing employment, public services, private commercial services and education is manifestly consistent with those rights and principles. A legal and policy regime under which separate sex facilities are not reliably guaranteed is moreover likely to have a discriminatory chilling effect on the uptake of employment by women in roles where shared changing rooms feature.[17]

The positions taken by the Scottish Government and public authorities in policy and recent litigation in relation to single sex space provisions under the Equality Act 2010 run counter to the protections outlined above that are owed to women under international law.

It is quite misleading, furthermore, for the Scottish Government to disclaim responsibility in this area on the grounds that equalities is a reserved matter under the Scotland Act 1998. The Scottish Government remains responsible for human rights under the Human Rights Act 1998[18]; the Scottish parliament retains competence with regard to observing and implementing international obligations, as earlier noted; and international human rights treaties, to which the Scottish Government has volubly committed itself, include non-discrimination provisions addressed to women on grounds of sex. Last, but not least, the Scottish Government’s position in these areas is in direct contradiction to its ambition to incorporated CEDAW into Scottish law – the very instrument that makes it clearest that such a position is legally insupportable.

7. Conclusion

This year marks the thirtieth anniversary of the adoption of the Beijing Declaration and Platform for Action on Women’s Human Rights, an historic landmark for human rights, in which governments committed to ensure the full enjoyment by women and the girl child of all human rights and fundamental freedoms, to eliminate all forms of discrimination against women and the girl child and remove all obstacles to gender equality and the advancement and empowerment of women; and to tackle violence against women, amongst others.

It is a matter of profound concern that today in Scotland, besides the other significant challenges they and society more broadly face, women’s most fundamental human rights are being abused, as identified above, with state complicity and government approval. Furthermore, women human rights defenders and others who have highlighted the issues related here have over recent years been subject to smearing, intimidation and harassment, including by those holding public office, to a level perhaps unprecedented in Scotland in modern times.

The Scottish Government should take the opportunity of the Beijing Declaration’s anniversary and International Women’s Day 2025 to now make a final and decisive break from past mistakes and clearly enunciate its unreserved commitment to upholding the internationally protected human rights of women and girls by addressing the abuses raised above.

Sincerely

Dr. Claire Methven O’Brien

[1] Para. 7(2)(a) Schedule 5 Scotland Act 1998 puts it within the legislative competence of the Scottish Parliament to ‘observe and implement international obligations’.

[2] 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 (Scottish Government, Scottish Ministerial Code 2016 edition (31 August 2016).

[3] Committee on the Elimination of Discrimination against Women, General Recommendation No. 28 on the core obligations of States parties under Article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, UN Doc. CEDAW/C/GC/28 (16 December 2010).

[4] C. Methven O’Brien, ‘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’, Substack (29 December 2025).

[5] Article 3 ECHR, Article 7 ICCPR; European Court of Human Rights, Guide on Article 3 ECHR; C. Methven O’Brien, Accommodation of transgender prisoners and Article 3 ECHR (Scottish Legal News, 20 February 2023).

[6] See e.g. Council of Europe, Council of Europe anti-torture Committee publishes report on the United Kingdom, focusing on police and prisons in Scotland, 11.10.19; Council of Europe, Council of Europe anti-torture Committee publishes report on the United Kingdom focusing on Scottish prisons, 08.10.20.

[7] Cf. X v Turkey; R(FDJ) v Secretary of State for Justice [2021] EWHC 1746 (Admin).

[8] 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? (Substack, 18 November 2024).

[9] Ibid.

[10] See further, C. Methven O’Brien, Recording the sex of rapists: what does the law require? (Legal Feminist, 21 September 2024).

[11] Ibid.

[12] https://www.spa.police.uk/publication-library/parliamentary-correspondence-police-scotland-review-sex-and-gender/ .

[13] See e.g. Sex Matters, Statement of Facts and Grounds, R on the application of Sex Matters v Chief Constable of the British Transport Police; The Baird Inquiry, An independent report into the experience of people who are arrested and taken into custody by Greater Manchester Police with a focus on women and girls (July 2024), https://www.greatermanchester-ca.gov.uk/media/9861/the-baird-inquiry.pdf.

[14] https://www.btp.police.uk/lt/local-teams/scotland/.

[15] See further, Council of Europe, GREVIO General Recommendation No. 1 on the digital dimension of violence against women, 20.10.21.

[16] C. Methven O’Brien, The Equality Act 2010 and support services for rape survivors: Does the UK comply with its international human rights obligations? (Substack, 18 November 2024).

[17] Commercial toilets: https://metro.co.uk/2019/03/16/transgender-woman-18-sexually-assaulted-girl-10-morrisons-toilet-8914577/

Other educational settings: https://www.bbc.co.uk/news/uk-scotland-glasgow-west-64430756

[18] Peggie v NHS Fife case, Articles 3 and 8 were raised by the claimant’s solicitor with the Scottish government https://archive.is/2025.02.16-080620/https://www.heraldscotland.com/news/24937927.sandie-peggie-tribunal-gray-told-nhs-fife-acted-illegally/

In September 2024, I published a post on the Legal Feminist blog highlighting the duty on states, under the Istanbul Convention, to produce crime data on a sex-disaggregated basis as prerequisite to meaningful monitoring of violence against women – contrary to current policy and practice in Scotland.

In this November 2024 Substack post, I highlighted the requirement under the Istanbul Convention for states to ensure single- and separate-sex provision of services for female survivors of rape and other forms of sexual violence. This duty is not currently fulfilled in the UK, in the context of an ambiguous legal framework and deficient statutory guidance.

In my most recent Substack post, on the case of For Women Scotland v Scottish Ministers, which was heard before the UK Supreme Court in November 2024, I explained why ‘gender-neutral’ rules and policies may breach state duties owed to women under the UN women’s treaty (CEDAW).

All three of these points have been underlined by the Council of Europe’s expert body on violence against women (GREVIO) in three new reports on Sweden, Finland and Denmark that it published at the end of 2024.

These publications further testify to the urgent need for the UK and devolved governments, regulators and public authorities, including the police, to implement corrective actions in relevant areas.

They are therefore material, amongst others, to:

- The UK Equality and Human Rights Commission’s current review of its Code of practice for services, public functions and associations

- Police Scotland’s review of the use of sex and gender data in Scottish policing (for details, see Scottish Police Authority’s Sex and Gender Review Update page)

- The pending decision of the Supreme Court in For Women Scotland v Scottish Ministers and the response to it by the UK and Scottish governments

- Policies, guidance and practices of human rights bodies, public, private and third sector providers of services to women including but not limited to support services for survivors of violence against women.

More generally, given the Istanbul Convention’s purposes, which extend to contributing to eliminating discriminating against women and promoting substantive equality between women and men (Article 1b), and its particular provisions in the areas of Fundamental rights, equality and non-discrimination (Article 4), state due diligence requirements (Article 5), gender-sensitive policies (Article 6), provisions on prevention and empowerment of women (Article 12) and sexual harassment (Article 40) amongst others, the approach taken and standards articulated in these areas by GREVIO are also potentially relevant to current cases linked to failures to provide single-sex facilities the employment context, for instance

- Peggie vs Fife Health Board and Upton (see commentaries here and here)

- Darlington Nurses v County Durham and Darlington NHS Foundation Trust (press coverage for example here and here).

1. The ‘deterrent effect’ of mixed-sex services for survivors of violence against women

The Istanbul Convention requires states to ensure provision of both general and specialist support services for survivors of violence against women (Articles 20, 22; see also Articles 23-25 on shelters, helplines and rape crisis and sexual violence referral centres). As discussed here, such services must under the Convention be available on a single-sex basis.

In the UK, compliance with this specific requirement is currently undermined by a legal framework and statutory guidance that fail to acknowledge it explicitly, while leaving service-providers in doubt as to whether and if so to what precise extent single-sex provision is allowed by the Equality Act 2010, in general as well as in this particular context. Access to single-sex services for survivors of violence against women has consequently been eroded (see Section 2.2 of my 18 November 2024 post for examples).

In its recent report on Finland, in relation to specialist support services (Article 22), GREVIO registered its

‘115. …concern that…domestic violence shelters in Finland are accessible to both male and female victims of domestic violence... While some shelters are equipped with separate entrances for male and female victims of violence, others feature shared entrances and common areas, such as kitchens and living rooms. GREVIO acknowledges shelter representatives’ assurance that the mixed-sex nature of these shelters has not led to security issues thus far, and that women residents have not voiced discomfort regarding sharing spaces with male victims…Nevertheless, GREVIO highlights the potential deterrent effect that mixed-sex shelters may have on certain women victims of violence in seeking refuge, underscoring the necessity to increase the availability of women-only shelters to address their specific needs and concerns.

116. In light of the aforementioned, GREVIO observes an overall gender-neutral approach to service provision in addressing violence against women in Finland, with only a limited number of specialist services exclusively tailored to women victims of violence and their specific needs...

(In passing, it is notable in these passages, that the word ‘woman’ is used synonymously with ‘female’, in line with the Istanbul Convention’s definitional provisions, object and purpose and general text and other provisions, as I previously discussed).

Accordingly, in its recommendations to the Finnish government, on Specialist Support Services for survivors of VAW,

‘122. … GREVIO urges the Finnish authorities to take measures to: a. increase the number and capacity of women-only shelters providing safe accommodation to victims of all forms of violence against women, in line with the standards set by the Istanbul Convention and in an adequate geographical distribution..; b. ensure that shelters can accommodate and cater for the needs of women subject to intersectional discrimination, including Sami women and women with addiction issues; c. ensure the availability of immediate, medium and long-term specialist support services, including psychological support to victims of all forms of violence against women, in an appropriate geographical distribution, while catering for the specific needs of vulnerable women subject to intersectional discrimination.’

2. Gender-neutral policies: ‘a worrisome development’

A key correlate of the adoption of ‘trans’ or ‘LGBTQI+’-inclusive’ policies and approaches is ‘gender-neutrality’, which entails in turn the elimination of female sex-specific vocabulary, on the presumed basis that retaining vocabulary that refers to the female sex is exclusive or discriminatory against individuals asserting transgender identities.

Such approaches have their advocates, including amongst human rights organisations.

However, gender-neutral approaches are antithetical to the basic assumptions underlying international legal instruments on the human rights of women while they are also incompatible with the specific content of state duties established under them.

This is reinforced by GREVIO in its recent reports on Sweden and Denmark.

On Sweden, GREVIO’s report includes a section entitled, ‘Steps towards a more gender-neutral approach: a worrisome development’ (p.10).

While acknowledging the prominence of the goal of combating violence against women and achieving gender equality in Swedish measures, here GREVIO expresses concern at,

‘…changes in policies on violence against women and in their practical implementation that would suggest a shift towards a more gender-neutral approach that is at odds with the spirit of the Istanbul Convention’ (para.4).

Such changes, GREVIO observes, include that,

‘…certain forms of violence against women appear to be increasingly addressed in a gender-neutral manner, notably as gender-based violence affecting both men and women, with less focus on the specific experience of women and girls.’

One concrete consequence of this is the depletion of funding available for women-specific services, as

‘…men’s shelter organisations and organisations that provide assistance to the wider category of “victims of crime” can compete…alongside women’s shelter associations’.

This problem is also manifest in the UK. As early as 2014, the UK Joint Committee on Human Rights acknowledged (as I note in my 18 November 2024 post) that government commissioning processes were, in the wake of the Equality Act 2010, demanding that service providers offer ‘gender-neutral’ domestic abuse counselling and referral services.

Local authorities, evidence submitted to the Committee suggested, were misinterpreting the Equality Act 2010 and lacked ‘clear direction on their obligations to address violence against women and girls.’ Accordingly, in its report, the JCHR recommended that, ‘…the Government issue guidance to all local authorities on the correct application of the law on equality to the services required under the Istanbul Convention.’

Whereas no such guidance has been forthcoming, the problem persists up to the present day (see e.g. 'Gender-neutral’ domestic abuse plan could force Women's Aid closures, council is warned,’ 26 November 2024, Holyrood Daily).

Turning to Denmark, in its December 2024 report, with regard to Article 3 (Definitions) of the Istanbul Convention, and reinforcing a point made in its Mid-term Horizontal Review of GREVIO baseline evaluation reports GREVIO,

‘…stresses the importance of continuing to address violence against women and domestic violence as a gendered phenomenon as it has had occasion to note previously that gender is a primary motive of gender‑based violence against women and, consequently, policies and measures that are gender-neutral will not effectively respond to the specific experiences of women and girls’ (p.11).

Since 2005, according to GREVIO, Denmark’s legal and policy frameworks on violence against women, have ‘operate[d] on the basis of the concept of “violence in close relationships”, which ‘…reflects a gender-neutral understanding of this form of violence with women and men considered as both victims and perpetrators.’

As a result,

‘…successive policy approaches, concepts and theoretical underpinning of the national response to domestic violence have gradually created a situation in which the gendered nature of this type of violence has become less visible, and in which more and more resources are directed towards women’s perpetration of intimate partner violence…

While of the introduction of policies offering protection and support to male victims of domestic violence in itself do not run counter to the Istanbul Convention, GREVIO recalls that Article 2, paragraph 2, of the Istanbul Convention emphasises that in doing so, “Parties shall pay particular attention to women victims of gender-based violence in implementing the provisions of this Convention”, as women are disproportionately affected.’

Illustrating the concrete consequences for survivors of this conceptual shift and the concomitant ‘diminished focus on women’s specifically gendered experiences of domestic violence’, GREVIO highlights the reluctance amongst Danish law enforcement officers to impose emergency barring orders against perpetrators where they lack alternative accommodation or where they share children with a victim.

Contrary to this tendency, under the Istanbul Convention (Article 52(2)), ‘Considerations for the safety of victims and children should…take precedence over contact with children until safe and durable solutions’ are found.

In sum, according to GREVIO, and highlighting the links between state duties under the UN Women’s Convention and under the Istanbul Convention,

‘15…the policy choices made by the Danish authorities in recent years to run counter to the obligations set out in Article 2, paragraph 2, and Article 3 of the convention, and do not lay the foundation for women’s and girls’ trust in the delivery of support, protection and justice for experiences of gender-based violence. GREVIO recalls the Concluding observations of the CEDAW Committee on the ninth periodic report on Denmark in which the committee called upon the Danish authorities to strengthen the legislative and policy framework on domestic violence, with a special focus on women who are victims of violence and by avoiding the use of gender-neutral terms, in accordance with the Istanbul Convention.’

In conclusion, with regard to this issue, GREVIO consequently,

16…strongly encourage[d] the Danish authorities to embed in any definitions of the forms of violence against women covered in the Istanbul Convention in use in Denmark an adequate understanding of violence against women as a human rights violation and a form of discrimination against women, as well as recognition of their gender-based nature.’

Demonstrating the systemic risks for women’s human rights entailed by gender-neutrality, and how it may articulate with fading policy concern to prevent male violence, GREVIO returns to it also in assessing Denmark’s fulfilment of its General Obligations under the Istanbul Convention (Article 12).

Here, with regard to violence prevention,

‘52…While GREVIO acknowledges…prevention measures taken by the Danish authorities and, to a certain extent, their acknowledgement of women’s increased exposure to certain forms of violence compared to men, it observes an overall lack of a gendered and integrated approach to tackle the root causes of violence against women and girls. Specifically, there is a notable absence of measures addressing societal attitudes, cultural norms and gender stereotypes rooted in the perceived inferiority of women. In this respect, GREVIO draws the attention of the Danish authorities to Recommendation CM/Rec(2019)1 of the Committee of Ministers to member States on preventing and combating sexism, which can provide guidance on raising awareness of gender-based prejudices and stereotypes. GREVIO also did not obtain any information on to what extent these campaigns sought to involve men and boys in the prevention of gender-based violence against women. Compounded by the overarching gender-neutral tone prevalent in national policy making, GREVIO considers that the prevention efforts of the Danish authorities run the risk of neglecting the unique experiences encountered by women in cases of violence.’

As a result, GREVIO

‘54…urge[d] the Danish authorities to prioritise a gendered approach in their initiatives aimed at preventing all forms of violence against women covered by the Istanbul Convention, including by promoting the understanding within society of the gendered nature of violence against women and by advocating changes in the mentalities and attitudes that inadvertently support and perpetuate such violence.’

For many in the UK, there will be chilling echoes of this pattern, observed abroad, in the callous inattention of public duty-bearers as well as other actors in the UK over recent years to the human rights and safeguarding needs of women and female children, whether in prisons, policing, survivor services or other contexts, in spite of clear international legal obligations and commitments to the contrary.

It may also be noted, in the light of the arguments heard before the Supreme Court in For Women Scotland v Scottish Ministers, and in particular those made on behalf of the Scottish Government and the Equality and Human Rights Commission, that gender-neutrality would be the logical consequence of defining sex as legal sex, rather than biological sex, in the context of the Equality Act 2010 or otherwise.

3. Sex-disaggregated data on violence against women

As related in more detail in my September 2024 post for Legal Feminist and my op-ed for The Times, there are incontrovertible requirements on states parties to the Istanbul Convention to produce data on violence against women disaggregated by sex, rather than by ‘gender’.

This is clearly illustrated by GREVIO’s reports on Sweden and Denmark.

While much more detailed discussion of relevant data and gaps in it is entered into by GREVIO in its respective reports on these countries, the following conclusions can relevantly be highlighted here.

On Sweden, amongst ‘issues that require sustained action in order to effectively build trust by delivering protection, support and justice for acts of violence against women (p.5), and noting that law enforcement data on perpetrators is not currently disaggregated ‘by sex’ (p.17), GREVIO identifies the needs to:

- ‘…harmonise the collection of data on all forms of violence against women and domestic violence between law-enforcement agencies, prosecution and the judiciary, with the aim of tracing the progress of cases from reporting to conviction and to identify attrition rates, ensuring that the data are disaggregated by sex of both the victim and the perpetrator, the age, the relationship of the perpetrator to the victim and the geographical location as well as other factors deemed relevant;

- ensure the collection of data related to violence against women and domestic violence, disaggregated by sex, age and relationship of the perpetrator to the victim, type of violence and geographical location, as well as other factors deemed relevant in the healthcare sector and by social services and specialist support service providers, including those managed privately (p.5)’

Similarly, with regard to Denmark, GREVIO identifies the need for the government,

- to ensure that data collected by all relevant stakeholders are disaggregated by sex, age, relationship, geographical location, and forms of violence covered by the Istanbul Convention… (p.5)

Currently, by contrast, GREVIO finds,

‘…the absence of specific data categories concerning the relationship between victims and perpetrators. Combined with the limited disaggregation by sex, this posed challenges in identifying cases of intimate partner violence against women. The inadequacy of data related to emergency barring and protection orders, lacking any breakdown by sex or relationship, had further compounded the issue. Within the justice sector, the data-collection systems had not enabled the comprehensive tracking of cases of violence against women across the criminal justice system. GREVIO had further highlighted the absence of data on violence against women in the crucial aspects of the justice sector, such as custody decisions, the use of special measures in court, compensation claims, legal aid and post-sentence programmes. In GREVIO’s view, this lack of information masked the challenges women encounter in accessing protection and justice, prompting GREVIO to emphasise the need for systematic sex-disaggregated data collection in Denmark (p.16).

At risk of repetition, it may be worth stating again here that where the police or other justice actors record only gender, whether legal or self-identified, rather than biological sex (or biological sex as well as gender) this entails a loss of data required to be collected by states under the Istanbul Convention, as well as other human rights instruments.

Any evaluation of interference with privacy or other rights protected by the European Convention on Human Rights, its justification and/or proportionality, claimed to be entailed by collecting such data must engage with this legal fact.

4. Conclusion

There can be little doubt at this point about the character or extent of state duties arising under the Istanbul Convention in the areas addressed here: women victims of violence must be able to access single-sex survivor services; gender-neutral approaches in relation to violence against women run counter to the basic principles and core obligations of states under the Istanbul Convention, as well as CEDAW; and the duty to produce sex-disaggregated data on violence against women is non-negotiable, short of the UK’s withdrawal from the Istanbul Convention itself.

Given the purposes of the Istanbul Convention, and its provisions on prevention, due diligence, women’s substantive equality with men and empowerment, and specifically as regards sexual harassment, which it defines as,

‘any form of unwanted verbal, non-verbal or physical conduct of a sexual nature with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, degrading, humiliating or offensive environment, is subject to criminal or other legal sanction’ (Article 40),

its implications for the need to ensure women’s access to single-sex spaces, particularly where these are of a confined nature, such as is the case in changing or dressing rooms, or toilets, if not explicit, also seem clear.

It is now pressing, given rising public concerns over violence against women and diminishing trust in authorities’ attitudes and effectiveness towards it, that the UK and devolved governments, stakeholders in the public sector and civil society, as well as human rights actors - ever keen to profess their commitments and credentials on women’s human rights - firstly, acknowledge these specific legal requirements, and secondly, implement the necessary revisions in UK law, policies and guidance to meet them.

The continued reticence of the UK and Scottish governments and other responsible bodies in this regard is inexplicable, particularly given the extensive access to legal expertise they enjoy. In some cases, it also entails a default on statutory and international mandates.

In all respects, accountability is long overdue. Women deserve better, and human rights standards to which the UK and Scottish Governments subscribe voluntarily demand it.

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.

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 9^th 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 3^rd 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 3^rd 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 (3^rd 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 3^rd 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).

But does it comply, or does the UK rather breach its international obligations, if national equality legislation de facto permits providers of such services to apply gender self-identification in relation to staff and users of such services and, vice versa, if the complexity and ambiguity of UK equality law renders unclear the true extent of legally permissible separate- or single-sex provision?

According to the analysis presented here, the Istanbul Convention requires the provision of single- and separate-sex rape crisis services for survivors of violence against women and girls (VAWG). Yet with reference to the Equality Act 2010, as interpreted and applied in light of subsequent legislation, such services have in various cases been withdrawn, while a perception has increasingly prevailed amongst relevant actors that this is mandated or at any rate permitted by statutory requirements.

The UK Supreme Court will shortly hear argument in For Women Scotland Ltd vs the Scottish Ministers. Whatever the Court decides, regarding the correct statutory construction of the Equality Act 2010, and its use of the term ‘woman’, as a matter of domestic law, it remains important to consider whether, as matters stand, and by virtue of the Equality Act 2010, the UK can be assessed as truly compliant with its Istanbul Convention obligations in this area, for a number of reasons. Inter alia these include that:

1)      The Supreme Court can rely 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) paras.19-26, 149)

2)      The consequential breach of duties under the Istanbul Convention would  be material in assessing any claimed engagement of or interference with the ECHR Article 8 rights of biological males, or more generally their rights under international human rights law, arising from single- or separate-sex provision of VAWG survivor services by virtue of the Equality Act 2010 or other instruments

3)      The Council of Europe is currently evaluating the compliance of the UK with its Istanbul Convention obligations, and access to services for VAWG survivors has been raised by various submissions in this context.[i]

Section 1 of this note considers the duty of state parties under the Istanbul Convention to provide services to VAWG survivors; substantive criteria such services must meet including accessibility, and gender-sensitivity; and explains why such services must, under the Convention, be provided on a single-sex basis.  

Section 2 considers UK compliance with these duties. Section 2.1 briefly outlines the basis on which the UK government has asserted its compliance. As Section 2.2 demonstrates, however, single- and/or separate-sex VAWG survivor services meeting Istanbul Convention requirements are not effectively guaranteed in the UK, despite the purported intent of the Equality Act 2010 and associated guidance to safeguard provision in that context.

Section 3 identifies a number of additional reasons that support the view that mixed-sex provision of VAWG survivor services is precluded by the Istanbul Convention, with reference to Council of Europe and United Nations human rights instruments.

Section 4 concludes.

1. Access to services for victim-survivors of violence against women: international obligations

The Council of Europe’s Convention on preventing and combating violence against women and domestic violence (‘Istanbul Convention’) articulates a ‘comprehensive framework’ of ‘policies and measures for the protection of and assistance to all victims of violence against women and domestic violence’ (Article 1(c)). 

It was signed by the UK in 2011 and ratified in 2022 with the support of devolved administrations in Scotland, Wales and Northern Ireland. The UK government maintains that the country as a whole complies with its obligations under it.[ii]

The Istanbul Convention aims to establish integrated national approaches to tackle violence against women and girls (VAWG). Accordingly, it defines broad-ranging state duties spanning matters such as research and data collection, violence prevention and education, protection and support for victims, and investigation and prosecution of criminal offences relating to VAWG.

Articles 18 to 28 of the Istanbul Convention define states’ duties concerning victim protection and support. These require the provision of ‘general’ and ‘specialised’ support services; shelters and helplines; access to complaints mechanisms and information for victims; and child protection measures, amongst others.

Regarding victim support services, the Istanbul Convention defines state duties in three categories.

Under ‘General support services’ (Article 20), the Convention provides that states must,

‘…take the necessary legislative or other measures to ensure that victims have access to services facilitating their recovery from violence. These measures should include, when necessary, services such as legal and psychological counselling, financial assistance, housing, education, training and assistance in finding employment…’

Second, in terms of ‘Specialised support services’ (Article 22), states must,

‘…take the necessary legislative or other measures to provide or arrange for, in an adequate geographical distribution, immediate, short- and long-term specialist support services to any victim subjected to any of the acts of violence covered by the scope of this Convention’ (Article 22(1)).

and

‘…provide or arrange for specialist women’s support services to all women victims of violence and their children’ (Art 22(2)).

Third, states are obliged to provide ‘Support for victims of sexual violence’.  Article 25 of the Istanbul Convention requires that states parties, in particular,

‘…take the necessary legislative or other measures to provide for the setting up of appropriate, easily accessible rape crisis or sexual violence referral centres for victims in sufficient numbers to provide for medical and forensic examination, trauma support and counselling for victims.’

As elaborated by the Istanbul Convention’s accompanying official Explanatory Report, Article 22 ‘…and the following provisions require Parties to the Convention to set up or arrange for a well-resourced specialist support sector.’  ‘The aim of such specialised support’, it clarifies,

‘…is to ensure the complex task of empowering victims through optimal support and assistance catered to their specific needs. Much of this is best ensured by women’s organisations and by support services provided, for example, by local authorities with specialised and experienced staff with in-depth knowledge of gender-based violence. It is important to ensure these services are sufficiently spread throughout the country and accessible for all victims. Moreover, these services and their staff need to be able to address the different types of violence covered by the scope of this Convention and provide support to all groups of victims, including hard-to-reach groups. The types of support that such dedicated services need to offer include providing shelter and safe accommodation, immediate medical support, the collection of forensic medical evidence in cases of rape and sexual assault, short and long-term psychological counselling, trauma care, legal counselling, advocacy and outreach services, telephone helplines to direct victims to the right type of service and specific services for children as victims or witnesses’.

The Explanatory Report further highlights that, by contrast with the ‘general support services’ referred to by Article 20, ‘specialist support services under Article 22’, address ‘the – often immediate – needs of victims of specific forms of violence against women or domestic violence and are not open to the general public. While these may be services run or funded by government authorities, the large majority of specialist services are offered by NGOs [non-governmental organisations].’ 

The Explanatory Report also underscores the duty of states under Article 25 of the Istanbul Convention to provide support services for women victims of sexual violence:

‘The traumatic nature of sexual violence, including rape requires a particularly sensitive response by trained and specialised staff. Victims of this type of violence need immediate medical care and trauma support combined with immediate forensic examinations to collect the evidence needed for prosecution. Furthermore, there is often a great need for psychological counselling and therapy…’ (para. 138).

Consequently,

‘Article 25…lays particular emphasis on providing this type of specialised support by obliging Parties to provide for the setting-up of accessible rape crisis or sexual violence referral centres’(para. 139). 

‘Rape crisis’ and ‘sexual violence referral’ services are thus separately identified under Article 25.

 ‘[R]ape crisis centres’, according to the Explanatory Report,

‘Typically…offer long term help that centres on counselling and therapy by offering face-to-face counselling, support groups and contact with other services. They also support victims during court proceedings by providing woman-to-woman advocacy and other practical help’. 

By contrast, sexual violence referral centres ‘…may specialise in immediate medical care, high-quality forensic practice and crisis intervention’, (para. 141), and work closely with services providing longer term care by ‘referring the victim to specialised community-based organisations for further services…’ or ‘…immediate and adequate referral of the victim to appropriate, specialised organisations as to provide the necessary care as determined by Article 25…’

Saliently, in this context, according to the Explanatory Report, ‘The [use of the] term “appropriate” intends to ensure that the services offered are suitable for the needs of victims’ (para. 142, emphasis added). 

The Council of Europe has established an expert body to monitor state parties’ compliance with the Istanbul Convention (GREVIO).

Based on its monitoring work across Europe, in a report published last year, this body provided additional commentary on ‘The role and importance of rape crisis and sexual violence referral centres’.

‘It is of paramount importance’, GREVIO’s report highlights, that legislative reforms on VAWG,

‘…go hand in hand with the setting up and/or strengthening of specialised services for victims of sexual violence. Such support services are of essence to ensure victims’ recovery and to address the consequences stemming from the violence, including self-blame and a sense of shame. They are also essential to facilitate access to justice as they empower victims and provide the needed forensic evidence to enable effective prosecutorial action and an eventual conviction (p.50).

Further, GREVIO observed that,

‘…victims of sexual violence can suffer multiple and enduring consequences, including possible physical consequences such as injury, sexually transmitted infections, unwanted pregnancies and unsafe abortions, as well as a wide range of psychological consequences, such as anxiety, depression and suicidal thoughts’ (p.50).

Consequently,

‘Studies have shown that that post-traumatic stress disorder (PTSD) is highly prevalent among victims of sexual violence, with one study finding 94% of rape victims met the PTSD criteria approximately two weeks post-rape, and 47% continued to meet the criteria after three months (p.120).

Such ‘psychological consequences also raise the chances of future drug addiction as well as re-victimisation’ (p.50-51). ‘In addition,’ GREVIO noted,

‘…research has highlighted that a rape victim’s first encounter with the support system can have very negative long-term consequences in terms of recovery, if the support is not adequate’ (p.51).

Where victims have poor experiences with services intended to help them, therefore, this ‘…can cause further harm to them, unless certain protection measures are taken and psychological counselling and trauma support is provided in parallel’ (p.50).

As a result, relevant processes and institutions should, ‘…giv[e] victims the control over the decisions taken’. In addition, ‘Victims must be granted services regardless of their willingness to report or testify against the perpetrator’ (p.51).

An unequivocal rationale for GREVIO’s emphasis in this context on centring women victims within prevention, legislative, judicial and policy responses to VAWG, and survivor services is provided by Article 7 of the Convention itself. Under Article 7(2),

‘Parties shall ensure that [legislation and policies addressing VAWG] place the rights of the victim at the centre of all measures and are implemented by way of effective co-operation among all relevant agencies, institutions and organisations.’

Notably, no reservations were entered by the UK to Article 7 or the other provisions referred to above when ratifying the Istanbul Convention in 2022.

At global level, the UN Women’s Committee has expounded on state duties regarding referral services for victim-survivors under the UN Convention on the Elimination of All Forms of Discrimination against Women in similar terms.

The Committee’s General Recommendation No. 35, for instance, highlights that,

‘All measures should be implemented with an approach centred around the victim/survivor, acknowledging women as right holders and promoting their agency and autonomy,’ (para.28)

Likewise, the Recommendation notes states’ parties’ obligation to,

‘Ensure that all legal proceedings, protective and support measures and services concerning victims/survivors respect and strengthen their autonomy’ (para. 31(a)(v)).

2. Assessing UK compliance with Istanbul Convention requirements concerning services for VAWG survivors

2.1 The basis for compliance as asserted by the UK government

In preparing to ratify the Istanbul Convention, the UK government developed a series of five annual national progress reports. According to the last of these, in 2021 the UK was fully compliant with the treaty’s various requirements relating to survivor services, including under Articles 20, 22 and 25.

Given that, for purposes of devolution under the Scotland Act 1998, the area is one of mixed competence, in reaching this assessment arrangements for provision in England, Wales, Northern Ireland and Scotland were documented.

Concerning England and Wales, for example, it was reported,

And as regards Scotland,

2.2 Non-compliance deriving from the Equality Act 2010, associated materials and consequent failure to provide adequate single-sex VAWG survivor services

The UK’s claimed compliance with the Istanbul Convention, based on the provision arrangements centrally and across devolved regions as just described, however hinges on whether the services as delivered meet the standards identified above, including those of ‘accessibility, ‘appropriateness’ and ‘suitability for the needs’ of all victims of VAWG.

Certainly, such services should also avoid the exposure of victim-survivors who use such services to secondary victimisation or re-traumatisation, as alluded to by the European Court of Human Rights with reference inter alia to Articles 3 and 8 of the ECHR, as discussed here.

Gradually, however, it has emerged that some, and perhaps a majority of rape crisis services across the UK have operated gender self-identification policies in relation to service users and staff. In Scotland, for instance, it was suggested in 2022 that all rape crisis services nationally were open to biological males.

There is moreover evidence that this approach has impacted on the content, manner of delivery and effective accessibility of their services to victims of VAWG in ways that appear to obstruct the UK’s full compliance with Istanbul Convention requirements.

Amongst others, this has been highlighted in the course of the Employment Tribunal’s judgment in Adams v Edinburgh Rape Crisis Centre (ERCC).

In Adams, according to the Tribunal’s decision, the respondent rape crisis centre had refused to provide rape crisis services to female victims seeking referral to counsellors of their own biological sex. It had further refused to refer victims to other rape crisis centres where such services might be obtained.  

Subsequently, an organisational review found that ERCC documents and the ERCC website did not advertise ‘dedicated spaces/times for women and girls’ or ‘women-only services’.

This, according to the organisational review, ‘[Put] women in the position of having to discuss whether the service they receive [would] be provided by someone who was born and continues to identify as female’. In turn, the review found, this

‘…caused damage [to victims] and does not amount to the provision of protected ‘women only’ spaces.’  

Overall, according to the review,

‘…requiring women to specify that they want a service delivered by a biological woman/female amounts to a ‘core failure’ assessed against applicable standards for rape crisis centres.’

Similar cases have arisen elsewhere in the UK. Some providers of rape crisis services have adopted policies in this area that combine statements of ‘in principle’ support for single-sex rape counselling services with the devolution of decision-making to the level of individual centres on ‘whether to deliver some or all as single-sex services’. 

Other providers appear more committed to gender-neutral or ‘trans-inclusive’ approaches. In Scotland, for instance, Rape Crisis Scotland, indicates its services ‘are normally open to people of all genders unless explicitly mentioned’.

Such cases occur against a wider background of increasing difficulties for providers of single- and separate-sex services, beyond the area of VAWG, in navigating their statutory duties under the framework of national equality law.

The Equality Act 2010 establishes general duties not to discriminate on grounds of protected characteristics, including sex. While it permits, in derogation from these general duties, the provision of separate-sex and single-sex services in some circumstances, establishing their legality is not straightforward, including as regards services provided to survivors of VAWG.

Indeed, as early as 2014, evidence was put by women’s organisations before the UK Parliament’s Joint Committee on Human Rights (JCHR), during its inquiry on violence against women and girls, that government commissioning processes were, in the wake of the Equality Act 2010, demanding that service providers offer ‘gender-neutral’ domestic abuse counselling and referral services.

Local authorities, their evidence suggested, were misinterpreting the Equality Act 2010 and lacked ‘clear direction on their obligations to address violence against women and girls.’  The government at the time rejected this evidence.

Nevertheless, in its report, the JCHR recommended that,

‘…the Government issue guidance to all local authorities on the correct application of the law on equality to the services required under the Istanbul Convention.’

Whereas this was not done, subsequently, uncertainties over the interpretation of exceptions, relating to separate sex and single sex services, to the Equality Act’s general non-discrimination duties, continued to manifest across a widening policy domain.

Ultimately, this led to the publication, in 2022, by the UK Equality and Human Rights Commission [EHRC] of a new ‘practical guide’, entitled Separate and single-sex service providers: a guide on the Equality Act sex and gender reassignment provisions.  While not in itself legally authoritative regarding the construction to be put on the Equality Act 2010, nonetheless the Guide is significant, given its practical influence on the way the Act is understood and applied by duty-bearers in practice.  According to the EHRC’s 2022 Guide,

‘To establish a separate or single-sex service, you must show that you meet at least one of a number of statutory conditions…and that limiting the service on the basis of sex is a proportionate means of achieving a legitimate aim. For example, a legitimate aim could be for reasons of privacy, decency, to prevent trauma or to ensure health and safety. You must then be able to show that your action is a proportionate way of achieving that aim.’

En passant, the EHRC Guide suggests that single-sex rape crisis services may on this basis be permitted under the Equality Act 2010.  Giving an example of a lawful exception to general equality duties arising under the statute, the Guide highlights that,

‘…a women-only support unit for women who have experienced domestic or sexual violence can be set up, even if there is no parallel men-only unit because of insufficient demand’.

However, the law’s requirements, according to the EHRC Guide, are still more complicated when it comes to demonstrating the legality of the exclusion of transgender individuals (with or without gender recognition certificates) from separate sex or single-sex services, where these are provided.

Here, according to the 2022 EHRC Guide,

‘There are circumstances where a lawfully-established separate or single-sex service provider can prevent, limit or modify trans people’s access to the service….However, limiting or modifying access to, or excluding a trans person from, the separate or single-sex service of the gender in which they present might be unlawful if you cannot show such action is a proportionate means of achieving a legitimate aim. This applies whether the person has a Gender Recognition Certificate or not.

When considering how your service is provided to trans people, you must balance the impact on all service users and show that there is a sufficiently good reason for excluding trans people or limiting or modifying their access to the service. Some service providers may find it helpful to have a policy for how services are provided to trans people. Where this is the case we recommend you develop a policy but this is not a legal requirement. If you do have a policy you should be prepared to consider whether particular circumstances justify departing from the policy.’

In addition, the EHRC Guide informs service providers that they,

‘…must be able to demonstrate that providing a separate or single-sex service is a proportionate means of achieving a legitimate aim. It is therefore good practice to record the reasons why you have taken the decision to provide a separate or single-sex service, along with any supporting evidence. For example, you have chosen to provide a single-sex hospital ward because patients have told you they have legitimate concerns about staying on a mixed ward, e.g. privacy. If this is the reason for your decision, it would be good practice to support this with evidence, such as a patient survey.’

The procedural requirements on service providers, under the Guide, are thus technically complex and administratively onerous, extending to commissioning service-user surveys and obtaining legal advice, for example, as well as re-evaluating the legality of arrangements on a case-by-case basis.  In effect, this last point in particular entails that no single-sex service can be guaranteed as such to prospective users, according to the Guide.

Moreover, the 2022 EHRC Guide does not explicitly refer to, or implicitly reflect, the clear and binding obligations to provide ‘accessible’, ‘appropriate’, ‘sensitive’ and trauma-informed general and specialist services that are ‘suitable for the needs’ of all victims that arise under the Istanbul Convention.

Indeed, the EHRC Guide does not refer anywhere to the Istanbul Convention, the rights it establishes for victims of VAWG or corresponding duties on the state, public authorities and private service providers, nor flag the need for interpretation of the Equality Act 2010, its duties and exceptions, in line with the Istanbul Convention’s requirements.

Neither does the EHRC Guide consider the scope for the exposure of survivors of VAWG to re-traumatisation, repeat or secondary victimisation in this context,[iii] or associated breaches of relevant substantive articles of the European Convention on Human Rights, such as Articles 3, 8 or, following the Forstater case, Article 9, nor the rights to non-discrimination in relation to the enjoyment of Convention rights (Article 14) or the right to an effective remedy for breaches of protected rights (Article 13).  

Given that the EHRC Guide encompasses services that the state is required to provide to women under the Istanbul Convention, these are significant oversights that would appear to undermine not just the completeness and consequently the authority of the EHRC Guide, but which also the credibility of the UK government’s claim that the duties under inter alia Article 25 of the Istanbul Convention to ‘…take the necessary legislative or other measures to provide for the setting up of appropriate, easily accessible rape crisis or sexual violence referral centres’ is met.

Of final note, while the Scottish Human Rights Commission acknowledged uncertainties concerning the scope and integrity of single-sex services for survivors of VAWG linked to the operation of gender identity-based policies (p.18) in its 2023 submission to the Council of Europe’s Istanbul Convention baseline assessment of the UK, the EHRC did not, referring only to its 2022 Guide (p.61).

3. Can the UK’s prima facie non-compliance with the Istanbul Convention be avoided?

To recap on the analysis presented here so far, firstly, the Istanbul Convention establishes binding international obligations for parties to it, including the UK, that extend to the provision, whether directly by the state itself or via NGO or other intermediaries, of rape crisis and other services for survivors of VAWG.  The services provided in this context must meet certain qualitative requirements, which include accessibility, appropriateness, suitability to the needs of victims, gender-sensitivity and victim-centredness. They should not expose survivors to secondary-victimisation or re-traumatisation, nor should they breach survivors’ human rights, such as those under Articles 3, 8, 9, 13 or 14 of the ECHR.

Secondly, there is credible evidence to suggest, at minimum, that such standards have not been and are not universally met in the UK, as a result of the adoption and operation of ‘gender-neutral’, ‘mixed-sex’ and/or ‘trans-inclusive’ polices by rape crisis service providers; even on a conservative view, it would appear there are substantial gaps in provision of the requisite services.

Thirdly, it appears that the Equality Act 2010, which regulates the provision of single- and separate-sex services, engenders the breach, either as the material cause of the operation of such approaches by service providers, or because, to date, the Act as interpreted by its statutory regulators and other actors (and particularly though not exclusively in conjunction with the Gender Recognition Act 2004) has failed to provide a sufficiently clear basis for identifying or challenging mixed-sex delivery of VAWG services as illegal.

Accepting this argument, a further question to be considered is, then, whether the Equality Act as interpreted (and whether this interpretation is correct, mistaken, necessary or avoidable, as a question of domestic law) can be spared its apparent inconsistency with Istanbul Convention requirements by virtue of any other legal reason?  

As considered next, this does not seem likely.

3.1 Does the Istanbul Convention really require separate and/or single-sex survivor services?

One route by which the Equality Act 2010, and the provision of mixed-sex survivor services, could be saved, for purposes of the Istanbul Convention, would be if the latter did not truly require separate- or single-sex provision of support services for survivors of VAWG but rather foresaw the fused provision of services for both sexes ‘from the get-go’.

While even for advocates of trans-inclusive policies in this area, this must be an unattractive interpretation, it is also one of little plausibility.

The Istanbul Convention is an instrument devoted to combating violence against ‘women’. That this means biological women is clear from its text, its accompanying Explanatory Report, its drafting history and as well as its interpretation by GREVIO, for reasons including the following. First, this meaning accords with the ordinary meaning of the word ‘woman’. Second, this interpretation is reinforced by specific elements of the Istanbul Convention, such as provisions, without qualification, addressing ‘Female Genital Mutilation’ (Article 38) and ‘forced abortion’ (Article 39); and standards relating to ‘pregnant women’, ‘unwanted pregnancies and unsafe abortions’. Regarding Article 39, the Explanatory Report clarifies that this relates to ‘women’s natural reproductive capacity’ (para.203) and that the criminal offence of ‘forced abortion’ relates to ‘forced abortion performed on a woman or girl’ (para.204).  Of further support, thirdly, the use of the term ‘gender’, as highlighted by the Explanatory Report, ‘is not intended as a replacement for the terms “women” and “men” used in the Convention’ (para.43). Accordingly, ‘violence against women’ (Article 3 (a)) and ‘gender-based violence against women’ (Article 3 (d)), and ‘sexual violence’ as it appears in Article 25 are all restricted in their scope of reference to biological women.

Fourthly, while it is true that, as regards domestic violence, the Istanbul Convention’s definition, following a specific proposal made during the drafting process, extends to male and female victims (Article 3(b)), and that where it refers to children this includes biological boys and girls, these exceptions only serve to clarify that in general the Convention’s protection extends to women, understood as biological females.

Accordingly, Article 22(2)’s duty to provide ‘specialist women’s support services to all women victims of violence and their children’ refers to biological females and their children of either sex, and the duty arising under ‘Article 25 - Support for victims of sexual violence’ to,

‘…provide for the setting up of appropriate, easily accessible rape crisis or sexual violence referral centres for victims in sufficient numbers to provide for medical and forensic examination, trauma support and counselling for victims’,

likewise extends to female victims.

Interpreting ‘women’ in general, across the full text of the Convention, so as to include biological males, would thus deprive such key provisions, and the instrument as a whole, of any coherent function or meaning.

3.2 Does the Istanbul Convention permit services to be delivered on a generally mixed-sex basis to males and female victims of sexual and domestic violence?

It might be, nevertheless, that despite generally using ‘woman’ and ‘women’ to denote biological females, the Convention still permitted states parties to engage in mixed sex provision of survivor services, so long as the duties owed to biologically female survivors were at the same time met.

After all, states are not precluded by Article 25 from establishing survivor services relating to sexual violence suffered by biological males, and other human rights standards would certainly support this. Male victims of domestic violence are also encompassed by state duties arising under Article 3(b). Can survivor services for males, as victims of sexual violence or domestic violence, both those asserting transgender identities and others, be provided in conjunction with those provided to females, generally on a mixed sex basis?

Again, given the text, objectives, context, drafting history and expert interpretation of the Istanbul Convention, as well as practice and operational standards in the field, this conclusion is clearly insupportable in relation to male victims of sexual violence and domestic violence at large, and indeed antithetical to the whole notion of ‘gender-sensitive’, ‘victim-centred’, trauma-informed services for survivors of VAWG.

It is also specifically contradicted by the approach taken by GREVIO, for instance, (i) regarding Article 50’s requirements concerning law enforcement responses to VAWG; (ii) in the area of asylum; and (iii) concerning the adoption of ‘gender-neutral’ approaches by some states parties in relation to domestic violence, as considered next.

(i) Article 50 - Immediate response, prevention and protection

Under Article 50(1) of the Istanbul Convention states are obliged to,

‘…take the necessary legislative or other measures to ensure that the responsible law enforcement agencies respond to all forms of violence covered by the scope of this Convention promptly and appropriately by offering adequate and immediate protection to victims’.

In articulating the content of this duty, the Explanatory Report clarifies that this clause requires, inter alia the treatment of victims by law enforcement in an ‘appropriate manner’ and thus ‘hearing victims…by…where appropriate by female, staff’ and ‘…an adequate number of female law enforcement officers, including at high levels of responsibility’ (para.258).

(ii) Article 60 – Gender-based asylum claims

Under Article 60(3), states are required to ‘take the necessary legislative or other measures to develop gender-sensitive reception procedures and support services for asylum-seekers as well as gender guidelines and gender-sensitive asylum procedures’.

As elucidated by the Explanatory Report, ‘gender-sensitivity’ in this context requires

‘…inter alia : …the separate accommodation of single men and women; separate toilet facilities, or at a minimum, different timetables established and monitored for their use by males and females; rooms that can be locked by their occupants; adequate lighting throughout the reception centre; guard protection, including female guards, trained on the gender-specific needs of residents;…and provision of information to women and girls on gender-based violence and available assistance services’.

(iii) Gender-neutrality as inconsistent with ‘gender-sensitivity’

While the Istanbul Convention deliberately recommends gender-neutrality in the defining offences of sexual and domestic violence in criminal law, the adoption more broadly of ‘gender-neutral’ approaches in defining and delivering survivor services has been singled out for criticism by GREVIO as inconsistent with the duty on states, explicitly established by Article 6, to implement ‘gender-sensitive’ policies.

In some states parties, GREVIO observes,

‘…authorities use the concept of gender‑based violence rather than that of violence against women in an effort to be inclusive of men and boys, as well as LBTI women, fearing that a different approach would be discriminatory’ (para.19).

While ‘appreciat[ing] the willingness of the authorities to pursue a policy to combat gender‑based violence taking into account all victims without discrimination,’ GREVIO states,

‘…policies and measures need to separately target gender‑based violence against women ‑ violence against women risking otherwise to become invisible and inadequately addressed. GREVIO has also highlighted in this respect that such an approach fails to address the specific experiences of women, hindering their effective protection.’

This led to criticism by GREVIO, of Finland, for example, where ‘the entry into force of the convention’ had not led to adoption of,

‘…policies that consider the specific experiences of women experiencing violence, such as the setting up of women‑only support services’ (para.28)

Notably, in its 2017 General Recommendation on gender-based violence against women, updating general recommendation No.19 (1992), the UN Committee on the Elimination of Discrimination Against Women (CEDAW) also addressed gender-neutrality, recommending, as regards legislative measures to be taken by states parties, that ‘gender-neutral laws and policies’ must not 'create or perpetuate existing inequalities and be repealed or modified if they do so’ (para. 29 (d)).

Generally, according to GREVIO, gender-neutral policies and approaches, ‘[fail] to take into account that gender is a primary motive of gender‑based violence against women and, consequently, policies and measures that are gender neutral will not effectively respond to the specific experiences of women and girls.’

3.3 Does the Istanbul Convention permit survivor services to be delivered on a limited mixed basis i.e. fused services for biological males asserting transgender identities who are victims of sexual or domestic violence along with females?

Having excluded that the Istanbul Convention generally permits delivery of survivor services to female and male victims of domestic, sexual or other VAWG, on a mixed-sex basis, can it be supported, nevertheless, that it permits admission of biological males who assert transgender identities to otherwise single-sex services and facilities?

Here again the answer is negative. As seen above, ‘women’ and ‘women’ in the Convention, are terms used to refer to biological women, given their ordinary and natural meaning, and interpreted in their specific legislative context.

This entails that where the Convention’s non-discrimination clause (Article 4) makes reference to ‘gender identity’,[iv] this refers to gender identity (whether this is male, female or otherwise) as asserted by biologically female individuals.

Also notable, in this context, is that CEDAW, in its General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women, in defining groups of women who are ‘particularly vulnerable to discrimination through civil and penal laws, regulations and customary law and practices’ does not either refer to gender identity but only to ‘women deprived of their liberty, refugees, asylum seeking and migrant women, stateless women, lesbian women, disabled women, women victims of trafficking, widows and elderly women’.

Besides this, there is no other textual basis within the Convention, Explanatory Report, or in the Conventions expert interpretation to suggest that ‘woman’ includes males asserting transgender identities.

This view is further supported by the materials discussed just above, highlighting the need inter alia for female law enforcement staff, separate sex asylum facilities, and women-only services, even where legislation and policy and national level is formulated in general neutral terms.

Furthermore, Convention’s the discrimination clause is qualified so as to permit sex selection in women’s favour. Under Article 4(4) of the Convention,

‘Special measures that are necessary to prevent and protect women from gender-based violence shall not be considered discrimination under the terms of this Convention’.

Recalling that, under the Convention’s definition of ‘violence against women’ (Article 3(a)), violence includes acts or threats of acts likely to cause psychological harm, as well as the approach generally taken by GREVIO towards protective and support services for women, this would also appear to exclude room for the operation of ‘trans-inclusive’ VAWG survivor services - or indeed, for equality legislation that requires, is perceived to require, or even permits or is perceived to permit them.  Services for VAWG survivors, the Explanatory Report and GREVIO’s expert analyses make clear, must be victim-centred and empowering, respect the autonomy and avoid re-traumatisation of survivors from the very start of the process, and cannot put them in a position where they are shamed because of a preference for same-sex treatment or forced to request ‘woman-to-woman’ counselling by services funded and intended to help them.

To recapitulate, in the Explanatory Report, it is clarified as a cross-cutting obligation of states parties that,

‘…all measures taken shall be based on a gendered understanding of violence against women and domestic violence. This means that services offered need to demonstrate an approach, relevant to their users, which recognises the gendered dynamics, impact and consequences of these forms of violence and which operates within a gender equality and human rights framework’ (para.115, concerning Article 18 General Obligations).

Further, it is highlighted that,

‘…measures and services that mean well but do not adequately take into consideration the devastating effects of violence and the length of the recovery process or that treat victims insensitively run the risk of re-victimising service users.’

4. Conclusion

In R (Elan-Cane) v. Home Secretary [2021] UKSC 56 [2023] AC 559, the Supreme Court considered a claim that regulations requiring UK passports would only be issued indicating the holder as being of male or female sex, and not with an ‘unspecified gender marker’. As the Court observed,

“52. … Some rights differ according to whether a person is a man or a woman: for example, rights of succession to hereditary titles. There are criminal offences that can only be committed against persons of a particular gender: for example, female genital mutilation.  There is a raft of legislation which assumes that only a woman can give birth to, or be the mother of, a child, including legislation relating to maternity rights and benefits, health provision and fertility treatment, and nationality. …. Equality legislation protects people from discrimination if it arises from their being a man or a woman.

53. A binary approach to gender also forms the basis of the provision of a wide variety of public services. The prison estate, for example, is divided into male and female prisons. Hospitals have wards where patients can only be of a single sex. Local authorities may fund rape crisis centres or domestic abuse refuges which offer their services only to women. Many schools only admit pupils of a particular sex. Much of this is underpinned by, or permitted by, legislation.”

Unfortunately, as this note has shown, albeit the Court’s assumptions here may have seemed reasonable, not all were sound.  In the UK today, the provision of single-sex services for survivors of VAWG, though required by the Istanbul Convention, is not effectively safeguarded.

Whether this situation owes to a correct and necessary, or flawed, interpretation of the Equality Act 2010, in interaction with other statutory protections, is a question on which the Supreme Court will duly pronounce.

While the parties’ arguments in the FWS case, as others have  highlighted, focus on domestic law, the UK’s international duties are not without significance in this context.

As CEDAW’s General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women recalls, under that instrument (under Article 2(c)),

‘…courts are bound to apply the principle of equality as embodied in the Convention and to interpret the law, to the maximum extent possible, in line with the obligations of States parties under the Convention. However, where it is not possible to do so, courts should draw any inconsistency between national law, including national religious and customary laws, and the State party’s obligations under the Convention to the attention of the appropriate authorities, since domestic laws may never be used as justification for failures by States parties to carry out their international obligations.’ 

As the Committee further observes, in its General Recommendation No.35,

‘An erosion of the legal and policy frameworks that aim to eliminate gender-based discrimination or violence, often justified in the name of tradition, culture, religion or fundamentalist ideology…further weaken States responses.’ In the context of shrinking democratic spaces and the consequent deterioration of the rule of law, all of those factors contribute to the pervasiveness of gender-based violence against women and lead to a culture of impunity’ [para.7].

On this basis, a Supreme Court decision that fails at minimum to notice the deficiencies of the UK’s current legal framework, when judged against applicable international legal standards, and the grave impacts they entail for women would truly add insult to injury.

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 University of Dundee, the Scottish Human Rights Commission or any other organisation. 

[i] See e.g. Report on the Implementation of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention) Shadow report SEX AND THE LAW IN THE UK December 2023.

[ii] UK government, Explanatory Memorandum on Council of Europe Convention on preventing and combating violence against women and domestic violence Command Paper No CP 674.

[iii] In Recommendation CM/Rec(2023)2 of the Committee of Ministers to member States on rights, services and support for victims of crime, (Appendix), secondary victimisation is defined as victimisation that…occurs not as a direct result of the criminal offence but as a result of the response of public or private institutions and other individuals to the victim’.  See further in this context UN Doc. A/HRC/47/26/Add.1. 

[iv] This is the Istanbul Convention’s only reference to gender identity, and was included following lobbying by the ILGA: see L. Sosa, ‘The Istanbul Convention in the context of feminist claims’ Ch.1 in J. Niemi, L. Peroni and V. Stoyanova (eds.), International Law and Violence Against Women Europe and the Istanbul Convention (Routledge, 2020). As Sosa also notes, although ILGA made efforts to secure additional textual amendments elsewhere in the draft Convention referring to LBTI identities these proposals were not accepted during the drafting process.

How should public bodies, and particularly the police, record the sex of individuals charged or convicted of rape?

This once uncontroversial question is now attracting scrutiny at Holyrood, by oversight bodies and in the media. This has revealed that across the Scottish justice system, policy provides for the production of official data based on individuals’ self-identified gender rather than their biological sex. Although defended as necessary to align with human rights and equality concerns, this approach in fact contradicts international human rights requirements.

Recording sex and gender: approach of Scottish justice actors

A 2021 petition lodged with Holyrood’s Citizen Participation and Public Petitions Committee exhorted ‘Police Scotland, the Crown Office and the Scottish Court Service to accurately record the sex of people charged or convicted of rape or attempted rape’ (PE 1876).  As defined in Scotland (Sexual Offences (Scotland) Act 2009, section 1), rape may be perpetrated by a biological man or biological woman, victims may be biologically male or female, and women may also be liable on an ‘art and part’ basis. 

Accurately tracking incidence and trends in sexual crime, including with reference to specific individual characteristics, requires the collection of data on both sex and gender. However, in its evidence to the Petitions Committee, Police Scotland disclosed that on all systems such as crime management and custody databases, it uses sex and gender interchangeably – not just for rape, but for all offences, whether or not of a sexual nature. Further, the force does not ‘routinely ask the gender or sex of people with whom they interact’ but bases the sex/gender identification of individuals on how they self-declare, or ‘…on how the person presents to officers at the time of engagement’, unless doing otherwise is ‘evidentially critical’. ‘No evidence or certification as proof of biological sex or gender identity’ is required unless this is ‘pertinent’ to an investigation.

According to Police Scotland, this approach reflects ‘legislative compliance, operational need and the values of respect, integrity, fairness and human rights’ while also ‘promoting a strong sense of belonging’. 

The Scottish Courts and Tribunals Service, and the Crown Office and Procurator Fiscal Service mirror Police Scotland’s approach. This appears consistent with Scottish Government Guidance for public bodies on collecting sex and gender data for operational, statistical and research purposes, published in 2021. Policy and decision-making on ‘operational data collection decisions’, under the Guidance, is deferred to individual public authorities. Only in rare cases, the Guidance provides, will it ‘be necessary and proportionate’ for such bodies to depart from self-identified gender ‘to require a person to answer a question on their biological sex’. Though the investigation of serious sexual offences is in this regard cited as an example, on the other hand, the Guidance warns, gathering data on sex may otherwise ‘be an unjustifiable breach of privacy’. 

Sex-disaggregated data and violence against women: international standards

Are justice system actors entitled to take this approach when recording crime? At least in relation to crimes against women, it would appear not.

The UK is a party to various treaties that prohibit violence against women, including rape and sexual assault. These include the United Nations’ women’s rights convention (CEDAW, Arts 1-3, 5(a)) and the Council of Europe’s Convention on preventing and combating violence against women and domestic violence (Istanbul Convention). The United Kingdom ratified the latter in 2022.

As part of a package of preventive measures, Article 11 of the Istanbul Convention requires states to collect data on all forms of violence against women. Although, according to the Convention’s accompanying Explanatory Report, the drafters ‘left the choice of data categories used’ to states parties, ‘as a minimum requirement, recorded data on victim and perpetrator should be disaggregated by sex, age, type of violence as well as the relationship of the perpetrator to the victim, geographical location and any other factors deemed relevant by the state in question’ (para.76). 

Highlighting that ‘The usefulness and relevance’ of data on violence against women ‘depend above all’ on their quality‘, the Explanatory Report adds, ‘public authorities such as the judiciary, the police and social welfare services will need to set-up data systems …that go beyond the internal recording of the needs of the agency’ (para. 76). While the privacy of both victims and perpetrators should be safeguarded, it is clear that no privacy-based obstacle to collecting sex-disaggregated data is foreseen (para.80; see also Art. 65 Istanbul Convention). 

Additional guidance provided by the Council of Europe identifies sex-disaggregation of data collected by law enforcement as ‘compulsory’ (p.36). Likewise, European Union-level recommendations on rape statistics in particular direct states to ‘include specific breakdowns essential for identifying rape, including data on the sex and age of the victim and perpetrator and the victim–perpetrator relationship as a minimum’.

Under the UN women’s convention, states have been recommended, ‘To develop judiciary databases on complaints, investigations, prosecutions, and  protection orders related to [gender-based violence against women] disaggregated by age, sex, disability, crime, punishment, redress and relationship between the perpetrator and the victim.’  The UN Statistical Division (UN Guidelines for Producing Statistics on Violence against Women— Statistical Surveys, pp.26-27) also presumes the collection of data on perpetrators and victims by sex.

Conclusion

Police Scotland has adopted admirable commitments and policies on violence against women. How the force’s current position on data collection was arrived at, given this, is perplexing.   

In any event, it is incorrect that legal compliance and ‘human rights’ demand gender self-identification in the generation of official data on rape and forms of violence against women, to the exclusion of data on sex. On the contrary, they preclude it.

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. 

Further references

S Walby, Ensuring data collection and research on violence against women and domestic violence: Article 11 of the Istanbul Convention (COE, 2016)

With thanks to the Legal Feminist.

Investigating and prosecuting rape: international and regional human rights standards

Rape is recognised by United Nations mechanisms as a grave, systematic and widespread human rights violation, a crime that may amount to torture and gender-based violence against women and girls.  Though it is widely prohibited, national laws against rape vary in scope and are implemented in a ‘general context of…discrimination and…violence against women, myths and gender-based stereotyping on rape by the media and the criminal justice system’ (UN Doc. A/HRC/47/26).

Consequently, across the world, ‘rape is frequently not reported. If…reported, it is seldom prosecuted; if prosecuted, the prosecution is rarely pursued in a gender-sensitive manner and often leads to very few convictions, the revictimization of survivors and high attrition rates, resulting in a normalization of rape, a culture of rape or silence on rape, stigmatization of victims and impunity for perpetrators’ (ibid).

Aligning to standards on victims’ rights, states have duties of due diligence to ‘prevent, criminalize and prosecute rape in accordance with international legal standards’.  At least since 1999, these have encompassed measures to prevent women’s re-victimization in rape proceedings. States must implement a ‘gender-sensitive, trauma-informed’ and ‘victim-centred approach’  in relation to rape that applies ‘at all stages of the investigation and judicial proceedings’. Survivors must be protected from ‘intimidation, retaliation and secondary victimization’ (UN Doc. A/HRC/47/26/Add.1).

Whereas a victim is someone who suffers ‘harm, including physical, mental, emotional or economic harm’ directly as a result of a criminal offence (Council of Europe Recommendation CM/Rec(2023)2, Appendix), secondary victimisation ‘occurs not as a direct result of the criminal offence but as a result of the response of public or private institutions and other individuals to the victim’ (se also UN Doc. A/HRC/47/26/Add.1).  

In Europe, general standards outlining expected treatment for victims of crime are supplemented in relation to violence against women, including but not limited to rape, by the Istanbul Convention. This obliges states to ‘protect the rights and interests of victims…at all stages’.  Judges, lawyers and the police, as relevant in each jurisdiction, must ensure not only that rape and other offences of violence against women are prosecuted but also protect complainants against intimidation and prevent secondary victimisation (Istanbul Convention Explanatory Report, Art 15, para. 99, Art 51, para.262, Art 56, para.283).  

While defendants’ fair trial rights must always be guaranteed, states must take measures to enable victims ‘to be heard, to supply evidence and to choose the means of having their views, needs and concerns presented and considered’ (Article 51 para. 286). National authorities must ‘limit as far as possible the psychological impact’ of giving evidence on the victim (para.292).

The judiciary, prosecutors and defence counsel, as well as law enforcement agents, must consequently receive appropriate training on the rights of victims of violence against women and how to prevent secondary victimisation (Art 15, paras. 98, 99).  Such training ‘should be…reinforced by clear protocols and guidelines...’ whose ‘effectiveness…should be regularly monitored, reviewed and, where necessary, improved.’  

Investigating and prosecuting rape: does the UK meet its duties?

In the UK, the investigation and prosecution of rape, in particular, does not yet fulfil these international commitments and requirements.  As the Equality and Human Rights Commission stated in a 2024 submission to the Council of Europe,

‘Unacceptably low rates of charges, prosecutions, and convictions, particularly in relation to adult rape offences, have been the subject of considerable discussion…in recent years. Although the estimated prevalence of rape offences has stayed the same, there has been a concerning decrease in charges, prosecutions, and convictions. Between 2015/16 and 2020/21 there was a significant decrease in the proportion of rape offences that were charged, according to our analysis of police-recorded crime outcomes data.’  

The UK Government’s own 2021 Rape Review concluded, in short, that ‘victims of rape are being failed’.

In Scotland, while sexual crimes are increasing as a proportion of total reported crime (17%), rape has the lowest conviction rate of any crime.  In 2020-21, 2,176 rapes and attempted rapes were reported to police, of which 152 (7%) resulted in prosecutions and 78 (3.6%) in convictions. These figures stand against a background of reluctance to report sexual crime, with over a fifth of reports of rape in Scotland made to police, for instance, made after a year or more following their occurrence.

Rape proceedings are experienced negatively by victims-survivors

Needless to say, such shortcomings have multiple and complex causes. The impacts of rape proceedings on complainants are significant amongst them.

Almost two-thirds (61%) of adult rape victims in England and Wales withdraw at the investigation stage, according to UK government data. Three-quarters of respondents to a government-sponsored survey of 1,968 survivors of rape and sexual assault in 2023 said their mental health had worsened as a direct result of what the police did, or failed to do, in their case. A 2021 report by the Criminal Justice Joint Inspectorate into the police and Crown Prosecution Service’s response to rape highlighted a lack of collaboration and poor communication with victims as well as failure ‘to put victims at the heart of building strong cases’.

Such findings are significant because, as highlighted by the UK Home Office 2021 Rape Review,

‘The trauma of the crime and their subsequent experience leads many victims to disengage from the criminal justice process. Without the victim’s engagement, prosecution and conviction is very difficult. But when cases are prosecuted, and victims stay engaged with their case, we see results: in 2019-20, 27% of rape defendants pled guilty, and we had an overall 69% conviction rate.’

Likewise, according to a recent Scottish Parliament report, sexual offences proceedings in Scottish courts are experienced as “extremely distressing and retraumatising” by victim-survivors.  Factors cited in this regard include ‘Poor practice, lack of communication, limited explanations and a lack of empathy shown by criminal and civil justice agents’ as well as a lack of ‘challenge to unacceptable behaviour and language by legal representatives within courts’.  Victims further complain of ‘being treated as evidence rather than human beings, [and] having their experiences segmented or dismissed by both defence and prosecution lawyers’.

Recent reform initiatives

Disregard and mistreatment of female sexual violence complainants at the level of individual law enforcement agents and owing to institutional practices and cultures have been implicated in recent national sexual violence scandals, from child sex grooming gangs, to the brutal rape and murder of Sarah Everard, the Worboys and Carrick cases, as well as in relation to the provision of support services for survivors of rape and sexual violence.

As regards the investigation and prosecution of rape, specifically, a series of public reviews and inquiries have advanced recommendations to address root causes.  In England and Wales, these included the 2021 End-to-End Rape Review Report on Findings and Actions and the Casey Review of the Metropolitan Police in 2023. New operating models for rape investigations and prosecutions have been adopted in consequence.

In Scotland, the Dorrian review considered courts’ handling of sexual offences cases and prompted the Victims, Witnesses, and Justice Reform (Scotland) Bill. Aiming  ‘to treat victims and witnesses more compassionately’,  to understand the impact of trauma and ‘avoid the risk of re-traumatising’ victims’, its proposals include a statutory right for rape complainers to state-funded representation where sexual history evidence is led; extending special measures for victims to non-evidential hearings; and restrictions on self-representation by the accused, for example. The report also proposes a right of anonymity to ‘protect the dignity’ of sexual offence victims and ‘minimise the re-traumatisation of victims before, during and after the court process. 

Such measures were necessary, the report concluded, to give victims ‘confidence…to report such crimes in the first instance’. Police Scotland’s 2023 Violence Against Women and Girls Strategy seeks to ‘build trust and confidence with women and girls’, including via a ‘person-centred approach’ on gender-based violence that refers explicitly to the Istanbul Convention.

Identifying biologically male defendants as female in rape trials: a breach of rape complainants’ human rights?

Such developments seem to indicate an emerging consensus across UK public authorities that favours protecting complainants from re-traumatisation and secondary victimisation during rape investigations and prosecutions, and aligning with the UK’s international human rights duties, as outlined above.

Can these duties be met, or are they breached, however, where biologically male defendants are referred to using female identifiers by judges and counsel in rape and other proceedings concerning violence against women?

Requiring anyone who professes a belief in the reality and immutability of biological sex to communicate in this way would, as compelled speech, breach the rights to freedom of thought and expression, as addressed by the UK Supreme Court in the ‘gay cake’ case and considered by O’Hara, here.

Given the international standards above, requiring a female complainant in rape proceedings to address a biologically male defendant (or accused, in Scotland) in this way likely entails breaches of Articles 3 and 8 ECHR, in addition.

This would also seem to be the case where, although a female rape complainant is permitted herself to desist from referring to such a male defendant as male, judges and counsel are nevertheless permitted or required to address or allude to them as female.

Not least, this is because, in line with its general application of a context-sensitive approach, Strasbourg case law on rape proceedings takes into account the authority and influence of national courts and what is said and done in them not just for individual victims but beyond that, for what they communicate to society at large about the weight attached by the state to laws prohibiting rape and the seriousness of efforts to secure its prosecution.   

Where a rape complainant was exposed to secondary trauma during criminal proceedings,  for instance, the ECtHR found both Articles 3 and 8 violated because, it found, the national court’s approach had undermined the applicant’s rights as a victim of violence, deprived domestic law of its purpose of effectively punishing and prosecuting sexual offences, raised doubts about the system put in place by the state to meet its international obligations and breached its duty to provide effective legal protection against sexual abuse (EB v Romania application no. 49089/10).

In another case, the court, in finding a violation of Article 8  where national authorities failed to protect a survivor from secondary victimisation in rape proceedings, also highlighted the ‘very important role’ of language used in a national court’s judgment, given its public character, where this ‘conveyed prejudices’ that were likely to undermine ‘effective protection for the rights of victims of gender-based violence, in spite of a satisfactory legislative framework’.  Given the crucial role of criminal proceedings and sanctions in the institutional response to gender-based violence and combatting gender inequality, ‘It was…essential that the judicial authorities avoided playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments that were capable of discouraging victims’ trust in the justice system’ (J.L. v. Italy application no. 5671/16)

Where a national court permitted the use of offensive and humiliating remarks towards a rape complainant during cross-examination that damaged her ‘personal integrity’, the state was also liable under Article 8 (Y. v. Slovenia application no. 41107/10).

In many sexual offence trials, complainants’ credibility is key. Where judges, embodying the coercive authority of the state, and counsel, with one voice identify as female individuals  whom, according to victims’ testimony, they experienced – often violently - as male, this is likely to be intimidating, confusing and disorienting, and may undermine their confidence and ability to testify, especially in light of strategies frequently deployed by defence counsel in sexual crime proceedings.

In addition, any interference with rape victims’ Article 8 rights (or for that matter their rights under Articles 9 or 10) resulting from this scenario would appear incapable of justification.  Sex-based discrimination is prohibited under Article 14 ECHR, and whether deemed directly or indirectly discriminatory, in the specific legal, policy and broader factual context of criminal proceedings concerning offences of violence against women, little deference could be afforded to state measures responsible for complainants’ secondary victimisation. Regarding Article 3 ECHR, its absolute character entails that treatment of rape victims deemed to reach the necessary threshold of severity could never be justified.

That this threshold would be met may also appear likely, given the character and gravity of impacts on victims of rape and other serious physical or sexual violence against women or girls, and the international norms prohibiting these, as well as those that guarantee female victims’ a right to an effective remedy, in which context ‘just satisfaction’ includes the ‘verification of the facts’ giving rise to a human rights violation and, importantly, the securing for victims of the ‘full and public disclosure of the truth’.

Judicial guidance on the management of rape proceedings (1): England and Wales

The next question arising is whether existing guidance adequately orients courts on how to manage proceedings relating to rape and other violence against women where they involve biologically male defendants who assert transgender identities.

In England and Wales, the 2021 version of the Equal Treatment Bench Book urged judges to ‘respect a person’s gender identity by using appropriate terms of address, names and pronouns’ based on ‘respect for their gender identity, private life and personal dignity.’’ (p. 325). This attracted criticism for failing to recognise the potential implications of its approach for complainants in proceedings relating to violence against women. Cases such as those of Maria MacLachlan, a victim of violence who was harried by a judge and defence counsel for ‘mis-gendering’ the biologically male defendant tried and convicted for her assault in 2018, had by this time already demonstrated the potential consequences of mis-direction in this area.

An interim version published later in 2021 accordingly changed tack, acknowledging ‘the rights of a witness to refer to a trans person by pronouns matching their gender assigned at birth, or to otherwise reveal a person’s trans status’ and that these might ‘clash with the trans person’s right to privacy’. Consequently, it advised a case management process to take into account factors including,   

‘…Why the witness is unwilling or unable to give evidence in a way which maintains the trans person’s privacy. For example, a victim of domestic abuse or sexual violence at the hands of a trans person may understandably describe the alleged perpetrator and use pronouns consistent with their gender assigned at birth because that is in accordance with the victim’s experience and perception of the events. Artificial steps such as requiring a victim to modify his/her language to disguise this risks interfering with his/her ability to give evidence of a traumatic event.’

The current, 2024 version, of the Equal Treatment Bench Book goes further.  Highlighting that victims ‘should not be required to call an accused ‘she’, particularly if they knew the accused as a male,’ it also concedes there may be situations where judges should not use a defendant/accused’s preferred name or pronouns so as to ensure witnesses give the ‘best evidence’ of traumatic events.  A ‘female rape victim may’, after all, ‘find it incomprehensible if the judge and others in court refer to her attacker as “she”.’

Where judges, as in the Secker trial, and counsel, as in others, appear not to have heeded this advice, there may be grounds for victims to challenge this as a breach of their Convention rights under sections 6 and 7 of the Human Rights Act 1998. Besides, given its weak formulation, and non-observance in recent cases, England’s Equal Treatment Bench Book would seem, as regards offences of violence against women, to require further strengthening and clarification.

Judicial guidance on the management of rape proceedings (2): Scotland

These issues are also salient in Scotland. Scotland’s Equal Treatment Bench Book is currently under revision. Similar to its counterpart in England and Wales, this aims to ‘offer assistance and advice to judges who must ensure that all who come before the courts are dealt with in an understanding and sensitive fashion’.

Accordingly, the 2019 version sought to address ‘personal characteristics such as sexual orientation and gender identity’. Its section on Sexual Orientation and Gender Identity, developed with input from Scottish Transgender Alliance, includes guidance relating to gender recognition (8.6). Somewhat misleadingly, given its unqualified formulation, this states that,

Public service providers, including Police Scotland, the Scottish Prison Service…and the Crown Office and Procurator Fiscal Service, treat transgender people in accordance with the gender in which they have started living regardless of whether or not they have received a gender recognition certificate…

It is always best practice to treat transgender people as the gender they identify as unless the law requires otherwise.  After gender recognition is obtained, the person must be treated as their newly recognised gender, for all purposes.

Further, and again without qualification, it provides that

‘When courts come into contact with transgender people, the requirements of the law may conflict with the needs and interests of the person involved.  Wherever possible, however, a transgender person should be treated, identified and addressed in accordance with their self-identified gender.’

Later,

Transgender people will usually appear in court presenting in accordance with their self-identified gender.  In some cases, disclosure of a person’s birth assigned sex may be essential for evidential reasons.  In the vast majority of cases, however, such disclosure will not be absolutely necessary, and, in any event, it should be possible to accept the person’s apparent identity for nearly all court purposes.

Further, in a section on ‘Use of Language’, it provides

Use of language is a particularly important issue. No one has the right to use the court as a forum for abuse. As in other areas of potential discrimination, people involved in the legal process should, as far as possible, be protected from offensive or clumsy labels…

As a basic principle, language used to or about LGBT people should reflect how they themselves wish to be addressed or referred to. This applies particularly to the title (e.g. Mr, Ms, etc.) and first and other names of transgender people, as well as the personal pronoun used to refer to them. In the vast majority of circumstances, there will be no need to discuss the transgender status or any former name of a transgender person. The principle of “use preferred language”  also applies to the words used to describe someone’s sexual orientation, and their relationships and partners. Obviously, if the case concerns the existence of a prejudiced attitude, it will be necessary to address the terms in which this attitude was expressed. Any use of such language in anything other than this context, by anyone in court, should be restrained.

A section on victims of sexual crime acknowledges that proceedings have potential to be re-traumatising and that they may experience distress during evidence but fails to recognise the specific issues arising where biological males asserting transgender identities are charged with offences of violence against women. According to some UK media reports, such situations occur with frequency.

If judges in some instances  have avoided aggravating language, it remains crucial that Scotland’s Equal Treatment Bench Book, in its next iteration, is brought fully into alignment with requirements arising from the ECHR and Istanbul Convention, and makes their practical implications for court proceedings concerning violence against women categorically clear.

In turn, this might help to inform the practice of other criminal justice actors, such as Police Scotland, in the context of its current review of its policies on sex and gender and deficiencies in its approach to recording of sexual offending data. It might also influence how violent and sexual crime against women by males asserting trans identities is reported in the media which, in terms of applicable standards (Art 17(1)) is often problematic.

Conclusion

It is thirty years since the UN’s landmark adoption of standards on violence against women. Since then, relevant law and policy in the UK have in many respects strengthened. But egregious attacks by males on women and girls continue, and the rules intended to address this remain incompletely and imperfectly realised in practice.

In this context, it remains imperative that courts communicate unequivocally when it comes to rape and other offences of violence against women. Without exception, defendants should be afforded a fair trial.  This does not entail, however, that courts treat biologically male defendants as female, in particular, where offences of violence against women are in issue. Judicial guidance, north and south of the border, must be urgently amended to reflect this.

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