For Women Scotland win appeal (Public Boards definition of 'woman')

[IsitM]

Original thread here:
www.mumsnet.com/Talk/womens_rights/4221457-For-Women-Scotland-judicial-review-appeal?msgid=106576116

Details to follow...

It's quite wordy in parts. I like this bit though...

The protected characteristics listed in the 2010 Act include “sex” and “gender reassignment”. The Scottish Parliament would, as we have noted, have been entitled to make provision in respect of either or both these characteristics. So far as the characteristic of sex is concerned, it would be open to the Scottish Parliament to make provision only for the inclusion of women, since a reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman. For this purpose a man is a male of any age and a woman is a female of any age. Section11(b)indicates that when one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female. Thus an exception which allows the Scottish Parliament to take steps relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.

Oh this is good news. Well done FWS.

@Mollyollydolly

FWS are amazing aren't they. I admire them so much. They just keep on and on. Amazing group of women.

Aren't they just. Although it boils my piss that yet again it's down to grassroots groups - funded by ordinary women and men - who are doing the legwork on this, rather than the well-funded, well-established civil society organisations

Sorry, am new to this.
What are the implications of this outcome likely to be for women-only spaces and women's sports in Scotland? I'm assuming this will have implications for women-only scholarships and prizes etc as well?

[quote ItsAllGoingToBeFine]Judgement is up:

www.scotcourts.gov.uk/search-judgments/court-of-session[/quote]
Fab, thanks.

@Helocariad

Sorry, am new to this. What are the implications of this outcome likely to be for women-only spaces and women's sports in Scotland? I'm assuming this will have implications for women-only scholarships and prizes etc as well?

Surely it can't be that much of a win? It does se to be saying that tranwomen don't share the same protected characteristic as women though? And as single sex spaces are allowed because sex is a protected characteristic?...

Wow that is some read but could some tell me if I've got the just of this right.
When it talks about it being reasonable to aim for a 50% representation farther than 95% is fair for sex but not for other characteristics (having mentioned transsexuals just before and conflating sex and gender reassignment) and saying that each characteristic must be assessed separately a legal speak warning to scot gov that the 1% of trans peoples rights cannot Trump the rights of the 99% of people? Or have I got that wrong

Sorry typos jist not just and rather not father 🤦‍♀️

Surely it can't be that much of a win? It does se to be saying that tranwomen don't share the same protected characteristic as women though?

I suspect it will have s very limited direct impact, but may prove to be a huge building block in establishing that in legal terms in Scotland, transwomen continue to be recognised as being of the male sex.

In terms of the other case, it was from a lower court. Perhaps this result will affect the standing of the other case when pemission to appeal is considered. Fingers crossed!

Does this mean if the fca define board targets/quotas by gender it will be in breach of this ruling in Scotland now?

the well-funded, well-established civil society organisations

You do get the impression they must just be too busy arranging fund-raising events or something to do any work...

Jo Cherry has said on Twitter that...

"This judgment says the meaning of woman in the #EqualityAct is a biological female. It also says the ScotParl could legislate to increase the representation of trans people on public boards having regard to protected characteristic of gender reassignment."

This has to be positive. It goes one step further in teasing out "gender" and "sex" as separate things. This must be useful in future cases where judges are conflating sex and gender.

It has become crucial that women get established in law that adult human female has a meaning, is a distinct group, and their biological reality and challenges of access are not muddled and concealed behind agendas driven by a male-centric political lobby, representing less than 1% of the UK male population, with no interest whatsoever in the wellbeing or equality of the female half of the human race, or anything beyond their own interests.

This plus repealing the GRA would go a huge way to protecting the sex based rights of women and girls so they are not at the mercy of any males who may wish to destroy them.

Huge thank you to FWS for all that they do - I'm so glad I stopped my d/d to the NSPCC and Amnesty and gave the cash to FWS instead.

It also says the ScotParl could legislate to increase the representation of trans people on public boards having regard to protected characteristic of gender reassignment."

Well, you could, if you had any good data on how many such people there were. Say, census data?

Although obviously being based on a non-innate characteristic such a thing would be extremely gameable in exactly the same way, but at least it wouldn't be directly undermining the attempts to monitor representation of women.

Excellent. Really fucking excellent!!

Well done all involved.

This bit is also very good:
These cases do not vouch the proposition that sex and gender reassignment are to be conflated or combined, particularly in light of subsequent legislation on the matter in the form of the 2010 Act which maintained the distinct categories of protected characteristics, and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate under the 2004 Act were limited. [39] By incorporating those transsexuals living as women into the definition of woman the 2018 Act conflates and confuses two separate and distinct protected characteristics, and in one case qualifies the nature of the characteristic which is to be given protection.

The protected characteristics are separate and distinct. Being a trans woman explicitly does not mean you also hold the protected characteristic of being a woman.

Well done FWS

The protected characteristics are separate and distinct. Being a trans woman explicitly does not mean you also hold the protected characteristic of being a woman.

This judgment says the meaning of woman in the #EqualityAct is a biological female

This alone is pretty enormous, if I've understood correctly. Because it needs to be banged out loud and clear that 'woman' = biological female. If we can get that nailed down, everything else will follow.

As someone pointed out on Twitter, what does this mean for ERCC and their appointment of Mridul Wadhwa?...

Summary here:

www.judiciary.scot/home/sentences-judgments/judgments/2022/02/18/for-women-scotland-v-the-la-the-scottish-ministers

(Excerpt)

An appeal division of the Court of Session ruled that the 2010 Act set out sex and gender reassignment as two separate protected characteristics.

The Equality Act defined sex as relating to women or men where ‘woman’ referred to a female of any age and ‘man’ to a male of any age. Gender reassignment was defined as a person who was proposing to undergo, was undergoing, or who had undergone a process (or part of a process) for the purpose of reassigning the person’s sex. The reassignment was the common factor of the protected characteristic, not the sex into which the person reassigned.

@DomesticatedZombie

This judgment says the meaning of woman in the #EqualityAct is a biological female

This alone is pretty enormous, if I've understood correctly. Because it needs to be banged out loud and clear that 'woman' = biological female. If we can get that nailed down, everything else will follow.

Seems pretty significant to me.

Interesting that they've had to use the word "biological" to ram it home that they do, in this instance, mean an actual female person.

Great news. Interesting times indeed.

Does this "The reassignment was the common factor of the protected characteristic, not the sex into which the person reassigned." confirm that that the comparator w.r.t. discrimination against TW is male? I.e. not discrimination if you exclude all males but possibly discrimination to exclude all males except the TW ones?

Interesting that they've had to use the word "biological" to ram it home that they do, in this instance, mean an actual female person.

That's because the GRA 2004 created a category of legal sex that could differ from a person's biological sex. This judgement concerns positive action (which is really a form of lawful discrimination) as a remedy for disadvantages suffered by women on the basis of their sex. Following the creation of the concept of legal sex, it is a basic necessity to be precise about which concept of sex is relevant to this positive action. And that is biological sex.