As Qualifications Scotland [QS] 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 QS provides me with the following information:

Has QS obtained their own legal advice on complying with the judgement and with all relevant legislation and regulations ?
If the answer to this is yes, can you please provide me with:

A copy of the legal advice obtained by QS
The total cost to QS of obtaining that advice
A copy of any planned actions, including timetables, QS has drawn up based on the advice received and ensuring that the QS will be compliant, as an employer and as a service provider, with the judgement and with all relevant legislation and regulations
A note of the total costs anticipated to QS of changes needed to policy and practice to ensure compliance with the judgement and with all relevant legislation and regulations

If the answer to question 1 is no, can QS provide copies of papers and minutes which cover the decision-making process deciding not to obtain legal advice ?
Has the QS flagged the reputational, financial and other risks associated with non-compliance with the judgement and with all relevant legislation and regulations, in the QS Corporate Risk Register ?
If yes, can you please provide me with a copy of the Corporate Risk Register entry ?
If no, can you please provide me with a copy of papers, emails and any relevant correspondence associated with a decision not to include the matter in the Corporate Risk Register.

1. Yes
2. a. There is no written recorded information as this advice was given verbally. Our solicitors outlined the Supreme Court ruling in relation to the Equality Act 2010, current conflicting and evolving case law, the risks of making changes to our current Gender Identity and Transitioning at Work policy and risks of not making changes to this policy. 

b. We are unable to provide this information as we have an annual agreement with our solicitors for advice and guidance.

c. A review of our Gender Identity and Transitioning at Work policy will be undertaken following the publication of the Equality and Human Rights Code of Practice.

d. We have no information on total costs.

3. N/A
4. Risks are currently recorded on our Business Area Risk Register in relation to the Supreme Court ruling. The risk score and mitigations determine whether this is further recorded on the Corporate Risk Register. Extract from our Business Area Risk Register is attached.
5. Please see number 4.
6. Please see number 4.

Information Sheet (11 KB)