Scottish Government to remove definition of woman from gender quota law after court ruling

[IwantToRetire]

The Scottish Government has acted to remove the definition of “woman” from an Act which seeks to increase female representation on public boards, following a court ruling that this was outwith the competence of the Scottish Parliament.

Judges said the definition of woman adopted in the Act “impinges on the nature of protected characteristics which is a reserved matter”.

Now the Scottish Government has laid the Gender Representation on Public Boards (Amendment) Bill before parliament which will entirely remove the section of the Act which seeks to define “woman”.

The Gender Representation on Public Boards Act currently states “’woman’ includes a person who has the protected characteristic of gender reassignment… 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”.

However this does not have any legal effect because it goes beyond the powers of the parliament.

Guidance following the Lady Haldane ruling was published by the Scottish Government to clarify the definition of women included trans women with a gender recognition certificate, but not those only intending to acquire one.

https://www.holyrood.com/news/view,scottish-government-to-remove-definition-of-woman-from-gender-quota-law-after-court-ruling

All this word salad...

Are they aiming to have 50% female representation on public boards or just trying to legally recodify that men can be part of the 50%?

I can't see what they want to replace it with. Or is the idea to replace it with nothing? How does that work?

I can't see what they want to replace it with. Or is the idea to replace it with nothing? How does that work?

I may have copied the wrong paragraphs out of the article, but has to say I dont realy know what it mean.s

But I think they are taking out the definition, and then it will just be a free for all if women want to complain that there isn't equal representation, because there will then have to be another court case to decide what a woman is.

Hopefully somebody more aware and alert later in the morning can explain it.

On the face of it it seems to be a good thing. I think it means that they are not allowed to seek to change the definition of women in the legislation, because that is a matter reserved to the UK govt. Therefore they are obliged to use the UK definition of woman which is I think, common law definition (ie sex), as modified by the GRA.

Haven't read more than written above though, so hopefully some well informed lawyers will be able to comment.

Is it that the definition of woman has actually been clarified to legally include women and men with a GRC?

This is the result of For Women Scotland winning their first judicial review (in the appeal court) on the definition of woman in the Act. The court ruled that the following definition of woman impinged on the Equality Act and was therefore unlawful as it was outwith the competence of the Scottish Govt:

“woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) 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.

The court ordered in March 2022 that the unlawful definition should be struck from the Act (and the Statutory Guidance). It's just taken the Scottish Govt 18 months to get round to introducing the legislation to comply with the court order. The definition of woman in the Act now defaults to that of the Equality Act: a female of any age.

The second FWS judicial review was about the statutory guidance for the Act which the Scottish Govt went on to amend, rather than just remove the parts that had been ruled unlawful. The courts ruled last week that the amendment to include males with a GRC (and exclude females with a GRC) within the definition of "woman" was lawful.

Although, given that a man who has obtained a GRC falls squarely in the definition of woman that was ruled unlawful - he has the protected characteristic of gender reassignment and "lives as a woman" - I'm not sure why the court in the second judicial review came to a different conclusion.

This is an interesting one. Having a definition for the purposes of one piece of legislation doesn't change its definition in the rest of law.

For example, the building regulations has a few definitions of "building" depending on the context, which is different again from the parent legislation in the building act, which is different again in planning law.

This feels like a bit of a flimsy excuse, when they should be honest about their intentions.

It was always a wedge issue. The trans lobby groups had already started to push for expansion into other laws. After the public boards act had passed Scottish Trans gave evidence to the committee looking at the census, stating that since it worked well it should also be the definition used for the Scottish census.

Does this cut off the Welsh Govt’s recent proposal to do the same as Scottish Govt?

Should be Sex Representation on Public Boards Act, shurely?

Gender is not nowadays (although it may have been in the past) a synonym for sex.

@BetsyM00 thanks - although I am no clearer.

Isn't “woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) 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 in fact what the UK wide EA says. That someone with a GRC "acquires" the (legal) sex opposite to their biology. Which is why the Single Sex Exemptions had to be written.

Although have had a quick skim re-read of the EA examples, and it seems to say someone with a GRC is protected by the protected characteristic of gender reassignment and doesnt acquire sex discrimination protection???

Single sex exemptions had to be written because the Equality Act outlaws discrimination on the grounds of the protected characteristics, so it then goes on to specify where that general rule does not apply, i.e you cannot generally discriminate on the grounds of sex, except in the circumstances set out.

Those with a trans identity are protected on the grounds of sex (their birth sex, though possibly their acquired sex if they have a GRC - the position is not clear) and on the basis of gender reassignment.

If someone believes you to be the opposite sex from that which you are and discriminates against you because they think you are that sex (which can happen in a variety of circumstances, including because someone is trans), then you will also be protected by the sex protected characteristic with respect to that sex.

However, the Equality Act is not relevant to the definition of woman included in the Scottish legislation referred to above.

The current court cases set the legal precedents. So a woman is a woman or a man with a GRC, but not a woman with a GRC unless it is the bit of the act where women with a GRC are still women and a man with a GRC is still a man. It definitely isn’t a man without a GRC.

However, the Equality Act is not relevant to the definition of woman included in the Scottish legislation referred to above.

It very definitely is. Both is the FWS court cases about the definition of woman were about this particular legislation.

Sorry yes. Quite right.

I was thinking about how the Equality act doesn't help us in defining what female and male mean, we are reliant on our common understanding.

The current court cases set the legal precedents. So a woman is a woman or a man with a GRC, but not a woman with a GRC unless it is the bit of the act where women with a GRC are still women and a man with a GRC is still a man. It definitely isn’t a man without a GRC.

I'm going for a lie down in a dark room.

Probably. There are significant differences in the devolution settlement between Wales and Scotland but these tend to mean that Scot Gov has more power than Welsh Gov. It would be very unusual for something to be within the competencies of WG but not SG.

The current court cases set the legal precedents. So a woman is a woman or a man with a GRC, but not a woman with a GRC unless it is the bit of the act where women with a GRC are still women and a man with a GRC is still a man. It definitely isn’t a man without a GRC.

And that quite neatly sums it up! 😁

Despite recognising during the most recent hearing that there is only one definition of woman throughout the entire Equality Act, Lady Dorrian had to do a quick slight of hand causing the Act to now have two definitions...woman reverts back to referring to biology so that those women who get a GRC and become men under the Act don't lose their pregnancy and maternity rights.

Parliament both knew the provisions of the GRA 2004 when drafting the Equality Act - so that sex definitely, pinkie promise meant legal sex and not biological sex - but also didn't know the provisions of the GRA 2004 by failing to understand that those getting a GRC keep their fertility and surprise surprise women would still get pregnant.