Sex
1. Overview
Discrimination in relation to gender exists in many areas of life, through a combination of direct discrimination, indirect discrimination and outdated stereotypes and attitudes.
It is important to recognise that gender discrimination can occur to both men and women (and against those who do not identify as either gender- see section on Non-Binary Persons). In relation to discrimination against men, stereotypes can mean wrong (and sometimes dangerous) assumptions are made, such as whether a man could be a suitable carer to a young child, be the victim of domestic abuse or be subject to a sexual assault. Judges must guard against falling into such stereotypes and take care to treat each person as an individual. It is acknowledged that more women tend to be discriminated based on their gender. Notwithstanding that, much of the relevance of this chapter (for example, caring responsibilities) can apply to any individual.
2. Introduction
Despite long-standing legislation prohibiting discrimination on the grounds of gender, women still suffer inequality in many areas of life. A Gender Equality Index published in 2020 illustrates the range of gender inequality over areas including health, work and money.[1] In all categories woman were not equal to men.[2] Women were most equal in the field of health, and least when considering roles in public life.[3] A Use of Time Survey from 2023 suggests women do more unpaid labour around the home than men.[4]
Gender stereotyping has increasingly been recognised from a young age, from toys[5] to the way that children are treated by carers. Research amongst childminders, nursery and primary teachers found that 64% of participants considered that gendered assumptions affect boys’ ability to talk about their emotions, and 57% agreed that stereotypes limit the jobs girls feel they can do when older.[6]
3. Employment and pay
UK research in 2017 showed the median gender pay gap between men and women for full and part-time workers in 2016 was 18.1%, although the gap shrinks when comparing full-time employees.[7] The underlying reasons are complex, but include the predominance of temporary work and part-time working amongst women, often to fit with caring responsibilities, limiting the range of work available.[8] In a Scottish context, the gap is around 10.1%[9] but jumps to 26% when comparing part-time work by women in comparison to full-time employment by men. Campaigning groups suggest the difference can be explained by the “systemic undervaluation of ‘women’s work’ which continues to be concentrated in low-paid, part-time jobs”.[10]
There are duties on public bodies to report information about gender and pay.[11]
4. Caring and childcare
More women than men take on the responsibility for caring for young children, impacting on women’s employment opportunities.[12] In addition to women being less likely to be in employment, when in employment they are more likely to work part-time when their children are under 8.[13]
Caring responsibilities for elderly or disabled family members still mainly fall on women.[14] Those responsibilities are likely to impact on women’s ability to be financially self-sufficient, particularly in older age. More women than men report that caring responsibilities for sick or disabled relatives has led to them passing on opportunities in the workplace.[15]
In practice:
Judges will be alert to potential difficulties with a witness or party not attending court due to childcare difficulties, particularly if the hearing has been arranged at short notice. A remote hearing is unlikely to overcome difficulties in attending court due to lack of childcare, unless the judge can be assured that there are some arrangements to prevent the carer not having to both supervise or care for children and focus on the hearing at the same time;
Excluding the issue of breastfeeding, there are prohibitions on children under the age of 14 being in a criminal court (other than an infant in arms),[16] but there are no similar general provisions for civil courts or tribunals. Judges may wish to take a similar approach on a case-by-case basis in civil hearings;
If childcare is not available, perhaps where arrangements have fallen through or the hearing is at short notice, judges may wish to consider postponing the hearing;
It may also be that a witness is only available for part of a day, such as during school hours.
5. Pregnancy and breastfeeding
Whilst discrimination due to pregnancy has been unlawful for decades,[17] problems remain. More than 10% of mothers reported being dismissed or made compulsorily redundant which they considered was connected to their pregnancy, with others reporting they were treated so poorly they felt they no option but to resign. One in five reported harassment or negative comments either relating to pregnancy or around requests for flexible working. One in ten reported discouragement from attending antenatal appointments.[18]
In practice:
Whilst many mothers do work up until their due date, judges should not assume that the last month of pregnancy and the first months after giving birth are suitable for women to attend court, either in person or remotely. Attendance on a remote basis is unlikely to overcome all the difficulties likely to arise;
Care must be taken with proceedings where a mother has just recently given birth, such as child protection proceedings;
Where a new mother is representing herself in CPO proceedings, she is likely to be vulnerable not just on account of being a party litigant but also given the emotional subject matter and the physical and emotional toll of having given birth;[19]
Judges may wish to give additional time for the reading of papers (for example, where a CPO application has just been lodged);
Additional time for submissions and breaks throughout the hearing might also be required.
The Breastfeeding etc. (Scotland) Act 2005 makes it a criminal offence to try and stop or prevent breastfeeding or bottle feeding in public. Court staff can be directed to the SCTS policy to assist them. Judges should also be alert to a witness, party or agent who needs time to express milk.
6. Menopause
In recent years there has been increasing awareness around impact the menopause can have on individual women. For some, symptoms can be debilitating. From a survey[20] common symptoms include trouble sleeping, anxiety, depression and palpitations.[21] Research suggests that medical help does not always seem to be immediately beneficial.[22]
In practice:
Judges should be aware of symptoms that might affect a woman’s ability to appear as a witness or participate in court proceedings. These include a range of mental health problems, difficulties sleeping and thus tiredness, and brain fog;[23]
Judges need to be alert to the fact that embarrassment might prevent a witness or party to the proceedings expressing such difficulty. The judiciary’s own menopause policy has helped to draw attention to the need to have a positive culture to allow openness about such difficulties.[24]
7. Sexual harassment
From an STUC survey in March 2022, 45% of women reported experiencing sexual harassment at work. This appears to be most common in male dominated industries and in low paid work, which is often also precarious in nature (such as zero hours contracts).[25] However, sexual harassment can take place over any sector and demographic. One third of women reported experiencing sexual harassment in the last year. These included remarks with a sexual innuendo or comment, sexual jokes, uninvited and inappropriate commenting on body and appearance, leering, suggestive looks, unwanted sexual advances, and unwanted physical contact of a sexual nature.
Much sexual harassment appears to be unreported.[26] Many women have a fear of reporting such harassment if it involves someone in a position of authority to them, or if in a temporary job without security of employment.
8. Domestic violence
Whilst there is increased awareness of the prevalence of domestic abuse in Scotland,[27] official statistics are likely to underreport its extent.[28] Reasons for not reporting domestic abuse include concerns about being believed, concerns that a report would not assist the situation, and a hope the situation will change.[29]
Whilst most complainers of domestic abuse are female, domestic abuse can happen in any type of relationship and to every type of person. Judges are referred to the section on domestic abuse within the chapter on Vulnerable Persons.
9. Complainers in sexual assaults
Whilst it is acknowledged most complainers in sexual assaults are female, given sexual assaults can happen to anyone, this topic is considered in Vulnerable Persons chapter.
10. FGM
Female genital mutilation is the practice of removing or injuring the whole or part of the female external genitalia for non-medical reasons. Victims are usually under the age of 15. It is associated with a host of medical complications such as difficulties in passing urine, bleeding, infections, and problems with childbirth. Whilst some say it is carried out for cultural reasons, the WHO note it is
“recognized internationally as a violation of the human rights of girls and women. It reflects deep-rooted inequality between the sexes and constitutes an extreme form of discrimination against girls and women. It is nearly always carried out by traditional practitioners on minors and is a violation of the rights of children.”[30]
UNICEF estimate that 200 million women and girls have been subjected to the practice worldwide, in around 31 countries.[31]
Scotland introduced legislation in 2005 making it a criminal offence to carry out or have carried out FGM, either in Scotland or abroad.[32] There are no statistics available as to how many girls or women have been subjected to FGM in Scotland.[33] Research by the Scottish Refugee Council notes every local authority area has a settled population of those with roots from countries where FGM takes place.[34] That research calculated that, in 2012, the number of girls born in Scotland into such potentially affected communities was around 363.[35]
It is likely that anyone who is, or is suspected to be, a victim of FGM would require to be treated as a vulnerable witness and thought given to special measures (including reporting restrictions or a closed court)- see section on special measures in vulnerable persons chapter.
11. Woman offenders
Women are far less likely to be involved in the criminal justice system as offenders as compared to men. Just less than 17% of those convicted of a crime are females.[36] Women are less likely to be involved in violent crime than men.[37] Women are less likely to be reconvicted than men, although that gap is narrowing.[38] Where convicted, the research suggests that women are disproportionally responsible for convictions in three areas: offences of “cruelty to and unnatural treatment of children” (71% of all convictions),[39] for “fraud” (34% of all convictions) and “drunkenness and other disorderly conduct” (32% of all convictions).[40] Females are less likely than men to be in custody: generally women account for around 5% of the prison population on any given day.[41]
Despite the lower rate of custodial sentences, the impacts of such a sentence may have wide ramifications. Research suggests that children of mothers imprisoned are unlikely to remain in their family home.[42] The Scottish Prison Service Survey 2019 found 61% of women in prison are mothers of children under the age of 18.[43] If a child is to be taken into care because of a sentence imposed on a parent, whilst that has always been a factor a court would consider in sentencing, it is now specifically referred to in the Scottish Sentencing Council’s sentencing guideline.[44] SPS have mother and baby units, allowing a baby to stay with its mother.[45] In the last 10 years, around 9 babies have resided in the mother and baby units in the SPS estate.[46]
The criminal justice system has adapted to the fact that most persons entering it are male. It is likely that women have dissimilar needs from men and distinct challenges. It is also important that judges are conscious that women are not a homogenous group. A female appearing might also have mental health issues or a disability. Each characteristic needs to be considered cumulatively and/or separately as appropriate.[47]
There does not appear to be much information on the issue of race and female offenders in a Scottish context. Scottish Government research suggests that there are slightly more female than male offenders identifying as Asian, and fewer identifying as African, Caribbean or Black.[48] Research in England & Wales suggests that black and ethnic minority women are more than twice as likely to be arrested than white women, and are at more risk of imprisonment compared to white women.[49]
12. Sex workers
It is thought that sex work mainly involves females.[50] Whilst it is not known how many persons are involved in sex work in Scotland, estimates in the 1990s indicated high levels of street sex work in Glasgow compared to the rest of the UK.[51] Other studies previously estimated that 1400 women were involved in street sex working in Scotland. Whilst most studies are estimates, one academic thought street sex working might only account for a quarter of the number of sex workers operating.[52] Given the difficulties of carrying out research in this area, accurate information on the extent of sex work is difficult to obtain.[53]
It is likely there are links between sex work and drug taking, and sex work and trafficking and forced labour.
The Scottish Government has recently announced a strategic approach, which aims to challenge demand for sex work, support those involved in sex working, treating them as victims of exploitation rather than perpetrators of crime, and to support those who wish to leave such work.[54] That includes a national hub, with links with local organisations.[55]
13. Trans
The holding of a Gender Recognition Certificate changes the individual’s gender to their acquired gender.[56] A recent decision of the Inner House considering the interaction of the Equality Act 2010 and the Gender Recognition Act 2004 has been appealed to the UKSC.[57] Reference is made to the chapter on trans issues.
14. Gender critical views
The holding of a gender critical view (that is around whether biological sex is immutable and cannot be changed) has been held to be a protected belief by the Employment Appeal Tribunal;[58] see further discussion on gender critical views in the chapter on trans persons, and in the chapter on religion and beliefs on protected beliefs more generally.
15. Marriage and divorce
Reference is made to the chapter on religion for consideration of some specific issues affecting women.
16. DSD
Judges should also be aware that a very small number of people who have differences or disorders in sex development. See section on DSD.
17. Terminology
Generally the following pointers should be considered, although individual preferences will differ. We are grateful to the authors of the Equal Treatment Bench Book for England & Wales for much of this section.
Refrain from referring to adult women as “girls” but rather refer to them as “women”;
“Ladies” can be seen as outdated[59] and should be avoided; ‘wee lassie’ is likely to be seen as patronising;
For that reason, judges may wish to refer to ‘Members of the jury’ rather than ‘Ladies and gentlemen’;[60]
Many persons may wish to be addressed by a professional title such as ‘Dr’ or ‘Professor’;
Otherwise check how a person would like to be addressed, e.g. as ‘Ms’, ‘Mrs’ or ‘Miss’ or ‘Mx’ (pronounced “mucks”). Do not assume that ‘Ms’ is interchangeable with ‘Miss’ or that either mean a woman is unmarried. Do not assume that a woman is using her husband’s surname. Many women prefer to keep their own name. In some cultural naming systems, married women do not generally carry the same family name as their husband. (See ‘names and naming systems’ for more on different naming systems);
Consider gender neutral writing where possible. For example, use gender neutral descriptions of jobs where you can e.g. firefighter, chair, police officer;[61]
Be mindful that some feminists object to the use of language which does not acknowledge biological differences between men and women. Whilst some people may prefer referring to, for example, people who are pregnant, or people experiencing menopause, others may object to such terms;
Avoid commenting on looks, appearances or fragrance.