www.gov.scot/publications/gender-representation-public-boards-scotland-act-2018-statutory-guidance/pages/2/
2.12 Section 2 of the Act provides that for the purposes of the Act, "woman" includes "a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010[2]) 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".
2.13 To be included, a trans woman without a UK Gender Recognition Certificate or without gender recognition from another EU Member State[3] must therefore meet the 3 following criteria:
- have the characteristic of gender reassignment as defined in the Equality Act 2010.
The definition of gender reassignment in the Equality Act 2010 is – "a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex". This definition includes those reassigning their sex from male to female as well as those reassigning their sex from female to male. A person who meets this definition is not covered by the definition of "woman" in the Act unless they also meet the following two criteria. The person does not need to have undergone any specific treatment or surgery[4]
- be proposing to undergo, is undergoing or undergone a process (or part of a process) for the purpose of reassigning their sex to female
This element of the definition means that a person with the protected characteristic of gender reassignment is only covered if they are proposing to undergo, is undergoing or have undergone a process to reassign their sex to female. A person reassigning their sex from female to male would not be included in the definition of woman for the purposes of the Act.
- be living as a woman
This would not require the person to dress, look or behave in any particular way. However, it would be expected that there would be evidence that the person was continuously living as a woman, such as – always using female pronouns; using a female name on official documents such as a driving licence or passport, or on utility bills or bank accounts; using female titles; updating the gender marker to female on official documents such as a driving licence or passport; describing themselves and being described by others in written or other communication as a woman.