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Feminism: Sex and gender discussions

Scottish Government redefines "woman" in law.

162 replies

ItsAllGoingToBeFine · 05/06/2020 08:28

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:

  1. 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]

  1. 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.

  1. 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.

OP posts:
Gibbonsgibbonsgibbons · 05/06/2020 10:29

Brain wash kids & companies that they must use “preferred pronouns” —> declare pronouns to be indicative of sex —> destroy what little protection the equalities act gives women.

Slow hand clap for the SNP juggernaut that just keeps going until slapped about by the Supreme Court.

ScrimpshawTheSecond · 05/06/2020 10:22

'A petition for judicial review needs to be lodged within three months of the date of the decision/omission/action to the supervisory jurisdiction of the Court. '

www.slab.org.uk/guidance/petition-for-judicial-review/

KaronAVyrus · 05/06/2020 10:06

I’m up for a letter writing campaign.

Alicethroughtheblackmirror · 05/06/2020 10:04

Vet I'm sure FWS and MBM will be working on plans - esp if judicial review is possible - but I suppose write. I'd bombard the minister, Christina McKelvie on the legality issue and ignoring consultation (her son is one of the SNP youth TRA boys but, in a way, that's useful as it proves bias).

Also, I think we should demand answers from Engender. Why aren't they representing those they are handsomely paid to represent? Perhaps also write to Msps questioning their funding.

Veterinari · 05/06/2020 09:57

Is there anything we can do about this?

Winesalot · 05/06/2020 09:52

Am I wrong to I suspect that Nicola believes the independence vote will make all this meaningless. That people will vote for SNP to secure independence despite this. Or am I looking at this the wrong way?

vivariumvivariumsvivaria · 05/06/2020 09:51

I really don't understand how MSPs can look at the figures for women murdered by men (about 3 a week) and pass this crap.

We are killed, raped, harassed, exploited and dismissed because of our sex.

Why are they doing this? Do they not realise that women vote, and there's more of us than the handful of morons at Scottish Trans Alliance?

It's staggering.

Alicethroughtheblackmirror · 05/06/2020 09:49

Thank you Cara, that is concerning. I suppose the difference here is that a different legislative body is reinterpreting the Act.

I'm really unsure about how Judicial Review works. I think there are grounds about legality and human rights? I did see something about time limits though, so assume it would need to be soon?

Furious as well that our toothless feminist organisation, Engender, have said nothing about this. They get hundreds of thousands from government supposedly to protect women's rights but essentially act as the SNP's nodding dog.

CaraDune · 05/06/2020 09:39

@Aesopfable

Is the Scottish Government entitled to change reserved legislation through secondary legislation within the Scottish Parliament? Seems unlikely.
I think there's a lacuna here in how legislation works. Often (important disclaimer - I am not a lawyer, this is gleaned from many years ago working as a very junior civil servant on a team drafting legislation) Acts of Parliament have a main text and various schedules. My understanding is that in order to amend the main body of the text, you have to have the matter debated in Parliament (this is how it works with Westminster legislation) whereas with the schedules, amendments just have to be "laid before parliament", i.e. notification has to be put out that a change is in the offing.

This is typically used for things like lists of endangered species, or the different classes of illegal substances - things that would typically be updated on expert advice, that parliament needs to know about but doesn't need to waste time discussing.

I can quite see how this process could be misused with regard to changing legislation, for instance, if you put the definition of "woman" in a schedule rather than the main body of the text.

I've been quietly worried about this with the Equalities Act for some time; the sections clarifying that it is indeed possible for sex and gender reassignment as protected characteristics to come into conflict, and the examples showing that it is lawful to discriminate on the basis of gender reassignment in order to protect single sex spaces where there is a proportionate need for single sex spaces - these are all in the schedules at the end, if memory serves me right.

ScrimpshawTheSecond · 05/06/2020 09:35

How do we get a judicial review?

The SNP have gone too far this time. Sneaky, underhanded, patronising. Last time they get my vote. Furious.

NonnyMouse1337 · 05/06/2020 09:29

FFS. This is depressing.

This was snuck in as a late amendment to the Gender Representation on Public Boards Act so, at the time, the public had no chance to respond. It was passed a couple of years ago but the act was put out to consultation last year.

Why would you have a consultation on an Act that was already passed?!

I agree that there must be a legal way to challenge this... How can the Scottish government undermine the UK Equality Act?

Alicethroughtheblackmirror · 05/06/2020 09:23

As an aside, I find it terrifying how Scottish Trans sticky fingers seem to be all over legislation in Scotland. Even bills that, on the surface, don't concern them at all.

Alicethroughtheblackmirror · 05/06/2020 09:20

Excellent article here from MBM on this BTW.
murrayblackburnmackenzie.org/2020/04/21/shifting-sands-on-the-definition-of-woman-in-scots-law-the-journey-of-the-gender-representation-on-public-boards-act-from-consultation-to-implementation/amp/?__twitter_impression=true

Aesop I would very much doubt they can, but we need the WM Gov to take this on as well.

Aesopfable · 05/06/2020 09:17

Is the Scottish Government entitled to change reserved legislation through secondary legislation within the Scottish Parliament? Seems unlikely.

Alicethroughtheblackmirror · 05/06/2020 09:12

Jelly, I think original drafting was in line with EA and would have included transmen but Scottish trans didn't like that!

SnuggyBuggy · 05/06/2020 09:11

So the term woman becomes meaningless

ItsAllGoingToBeFine · 05/06/2020 09:11

@Aesopfable

Surely the whole Act is in conflict with the Equality Act 2010 as it discriminates against women?
There has been chat (on twitter) about getting the UK government involved in this.

The issue as well is that now this is in law it is being used to bolster the argument in other areas e.g. the census.

OP posts:
Alicethroughtheblackmirror · 05/06/2020 09:10

Aesop, quite! The FWS letter asks the minister what legal advice they have received to suggest they can undermine the Act in discrete legislation. Apparently, she's not replied.

JellySlice · 05/06/2020 09:09

Are they proposing to abuse the legal definition of 'man' in the same way? If not, where does that leave transmen?

A person reassigning their sex from female to male would not be included in the definition of woman for the purposes of the Act.

Let me guess... legally stripped of their human rights, damned, like every other female.

Aesopfable · 05/06/2020 09:08

Surely the whole Act is in conflict with the Equality Act 2010 as it discriminates against women?

Alicethroughtheblackmirror · 05/06/2020 09:06

Aesop, yes, I think there are good grounds for judicial review. It's infuriating that this has to be the way to hold them to account.

Molton it is exactly self ID. Gov claim it won't affect any other legislation, however, it's already being cited as precedent. MBM have pointed out that it's being used in Scottish National Investment Bank Bill.

Effectively, it seems to me that Scot Gov are using individual pieces of legislation to undermine the Equality Act and make it unenforceable.

Aesopfable · 05/06/2020 09:06

So let's summarise:
A woman is any female or
any male but you can’t ask them for anything to back up their statement that they are a woman.

So a public board with 100% men may be considered to have ‘gender equality’

Aesopfable · 05/06/2020 09:00

For government/council consultations to be legal they must take place at a formative stage (ie before decisions have been finalised) and the results must be considered (though not necessarily followed).

I wander if a judicial review of either this consultation or the GRA one on that basis. Particularly thinking of comments made during the GRA consultation by the likes of Nicola Sturgeon about educating people...

MoltenLasagne · 05/06/2020 08:59

So let's summarise:
A woman is any female or

  • any male who has thought about under going a process
  • which does not have any fixed limitations but definitely does not require surgery
  • and who is living as a woman
  • which also has no fixed requirements on dress, looks or behaviour but you have to update your driving licence

How does this differ from Self ID?

BaronessRadishFemish · 05/06/2020 08:58

Don’t be silly..

I know, I don't know what came over me.