FOI Release: Supreme Court Judgement 2025

As the Registers of Scotland will be aware, the Supreme Court judgement of April 2025 regarding the definition of ‘sex’ in the Equality Act 2010 was that sex was biological and binary.  Later that year, in September, the Equality & Human Rights Commission [EHRC] published a statement:

We have been clear that service providers, associations and public functions should not wait for the code of practice to be published to make any changes needed to comply with the law. As duty-bearers they must assure themselves of their legal responsibilities in their own specific circumstances and seek independent legal advice where necessary.”

In the context provided by both the Supreme Court judgement and the statement issued by the EHRC and in terms of the provisions of the Freedom of Information [Scotland] Act 2002, I write to ask that Registers of Scotland provides me with the following information:

Response

The answers to your questions are:

1. Yes, Registers of Scotland obtained legal advice from the Scottish Government Legal Directorate

1. This information is exempt under section 36 (1) (confidentiality). The information we have withheld is correspondence between RoS and external legal advisors. This is because of the importance in maintaining confidentiality between a client and legal advisers.  

   This exemption is subject to the ‘public interest test’, meaning that it can only be withheld if it is not in the public interest to release it. Taking into account all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption and have found that, on balance, the public interest lies in favour of upholding the exemption.

   We recognise that there is a public interest in disclosing information as part of an open and transparent government, including around how public authorities respond to Supreme Court judgments. There is also a significant public interest in allowing public bodies to obtain and consider legal advice in confidence. Disclosure of this advice would be likely to discourage full and frank legal engagement in future, which would undermine good governance and lawful decision-making. Having considered the specific context of this request, we have concluded that the public interest in maintaining legal professional privilege outweighs the public interest in disclosure.

2. Registers of Scotland does not hold information on the cost of legal advice on a case-by-case basis. In line with section 17 of FOISA, this information is therefore not held.  Registers of Scotland pay an annual fee to Scottish Government Legal Directorate for the provision of legal services and advice (including litigation and tribunal work). We do not hold information on the apportionment per case of the annual fee nor on the apportionment per case of Registers of Scotland employees’ time in dealing with each individual case. This figure is therefore not available.

3. RoS has a current action to review the code of practice from the Equality and Human Rights Commission when published and to respond appropriately.

4. Registers of Scotland made an operational decision in response to the Supreme Court ruling to carry out the following works: conversion of two existing multi-use shower rooms with communal changing spaces at Meadowbank House into two private, single use shower rooms. The works comprised installation of appropriate signage and door locks on fire-rated doors. The total cost of these works was £3000.

At the time of your request, no further formal action plans, timetables, or costed programmes had been agreed or documented beyond the steps outlined above. In line with section 17 of FOISA, we therefore do not hold any other information in relation to anticipated costs.

3. This question does not apply, as Registers of Scotland did obtain legal advice.

4. RoS operates a hierarchy of risk registers, with our Corporate (or Key) Risk Register sitting at the strategic level.

We do not have a strategic level risk around the impact of non-compliance with the judgement. However, relevant risks are managed and monitored at other levels within the hierarchy that cover the diversity and inclusion skills and expertise needed to ensure we remain compliant with all Employment and Equality Act requirements, as well as a general Compliance risk.