Definition of woman in public boards Act dropped after court challenge

[IwantToRetire]

The definition of woman has been dropped from legislation mandating 50% female representation on public boards following a court challenge.

The Gender Representation on Public Boards (Scotland) Act was passed in 2018, but included transgender women in its definitions.

A challenge to the legislation by campaign group For Women Scotland resulted in a court ruling that the definition should be removed because the Scottish Parliament does not have the power to change the definition of woman.

As such, a one-page Bill was proposed by the Government removing the definition altogether.

On Thursday, the Bill passed unanimously with the support of 108 MSPs.

Article continues as https://news.stv.tv/scotland/definition-of-woman-in-public-boards-act-dropped-after-court-challenge

I dont understand this (as explained by newspaper). It says:

Scottish Parliament does not have the power to change the definition of woman.

This may be true on constitutional grounds, but as there is no agreed definition of a woman, how can it be said they were trying to "change" it.

Sometimes legal processes just show that legal processes actually dont deal with the reality of life, and how the law works in practice.

It seems to me that the Scottish Government overstepped and sought to define a woman beyond what the GRC covers. So were acting outside their authority.

A woman per the Court ruling is either a biological woman or a biological man in possession of a GRC, who is a woman for legal purposes.

However there is an application to the UK Supreme Court, seeking to overturn this decision, and there is a fundraising activity re this.

Lets hope they win.

Yes - that's what I meant. That there is no clarity, so they couldn't change anything.

Anyhow as you say the High Court case is more important, though suspect it will have a similar conclusion that Scotland cant change what the UK Government which has created 2 types of women, ie biological females and "legal women".

Shame that Kemi Baddenoch didn't get the chance to change the EA to make it clear that sex means biological fact.

I had a look at the grounds for appeal to the Supreme Court, which makes sense to me. It is still possible that the Supreme Court will rule the meaning of woman in the Equalities Act as a biological woman as the GRC provides exceptions for “the legal sex for all purposes.”

Also the predecessor to the Supreme Court, House of Lords, did set a precedent a long time ago, that the Court may look behind any ACT in Hansards to establish the intentions of parliament in tabling and passing any Act.

Supreme Court will rule the meaning of woman in the Equalities Act as a biological woman as the GRC provides exceptions for “the legal sex for all purposes.”

I appreciate that - but it is the very existance of the SSE implies "that for all purposes" men with a GRC are legally women ie the default.

Otherwise they wouldn't have needed to created the exceptions for when biology counts.

Logically it should have been the few (if any) occasions that a man with a GRC could be said to be "legally" a woman.

But the fact that it is the reverse could be said to indicate that the intention was "for all purposes" except SSE.

Sorry what is SSE?

The EQA came after the GRC, so it is an argument that if parliament intended that sex means biological sex only, otherwise there would be no need to have an additional protection for transgender people.

Sorry - SSE = Single Sex Exceptions

ie because for "all purposes" a man with a GRC is a "legal woman" the dunces who drew up clauses in the EA realised that it was just possible that there are occassions when women need services ie that are only open to biological women (hence single sex exceptions).

They even list rape crisis provision as being an example for this. So where it is "proporationate" (ie women have to prove it should be single sex) trans women with a GRC can be excluded.

The mere fact that it is written this way indicates that those drafting the bill saw trans women as being accepted as women "for all purposes". If they hadn't then they wouldn't have thought we better write in that on a few occassions women can be allowed to have single sex provision.

If they had thought the opposite that only on occassion should a man with a GRC be taken as being a "legal woman" then there would have been no need to add in single sex exceptions because the default would be that women only would be based on biological sex. And the would have written Trans Women Exceptions, when TW would be treated as though they were biological women.

But they didn't.

The exceptions (ie or a minority of instances) were for biological women. In other words they put the rights of a tiny minority at the expense of the rights of over 50% of the population.

I dont understand this (as explained by newspaper). It says:

Scottish Parliament does not have the power to change the definition of woman.

The public boards Act must follow the definition of woman as defined by the Equality Act ie. a female of any age. This legislation is reserved to Westminster so the devolved Scottish Parliament does not have the power to change or modify it in any way.

The ruling of the Court of Session Inner House stated:

"Thus an exception [in the Equality Act] 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."

This is clear that the definition of woman in the Equality Act refers to biology.

This ruling on the Act stands with equal legal weighting - it was not overturned - to the second FWS judicial review decision where the Inner House took a different interpretation and stated that "woman" included men with GRCs. This decision was on the revised statutory guidance to the Act and an appeal on it will be heard by the UK Supreme court in November.

The exceptions (ie or a minority of instances) were for biological women. In other words they put the rights of a tiny minority at the expense of the rights of over 50% of the population.

The Equality Act allows for single-sex services. If, as you say, the aim of these is to provide services for biological women then you are agreeing that the definition of sex in "single-sex services" is indeed biological in the Equality Act. There's only one definition throughout the Act.

But wouldn’t this also mean that the EA doesn’t protect legal men against discrimination based on pregnancy and childbirth since the act refers to discrimination against pregnant women?

There's only one definition throughout the Act.

Logically yes. They are accepting that biology defines sex when talking about SSS.

But for "all other purposes" men with a GRC are "legal women".

ie the law as written has created 2 definitions of women.

Which is exactly why there was a petition and a campaign to clarify the meaning of the word sex in the EA. And it did look as though Kemi Badenoch was moving towards bringing forward a bill (amendment?) to the EA to make it clear that sex means biological fact, not gender identity.

So on one level this is just about a badly worded bill that as time has moved on TRAs exploited.

Or those who believe in the influence of hidden networks, saw it as the result of pressure from TRAs to create a law that gives the minority (those with a GRC) the legal right to be regonised as the opposite sex.

Either way, with the passage of time, much as I, and I am sure others, would actually like it to be clearly stated in the EA that sex means biological reality, it wont actually stop those with a GRC demanding that their rights to be treated as the opposite sex are not undermined.

So in my mind,even if sex is defined as a biological fact, it probably means the SSE will still be needed because culturally so many people now think in terms of gender.

Added to which changing the definition of sex to only ever mean biological fact, would result in those with a GRC no longer being able to claim on passports or driving licences, let alone toilets, to be the opposite sex to the one they are born, GRCs become meaningless. If the change to the EA did go this far, there would be total melt down in the rainbow alliance, support be the still very large be kind brigade.

Many others have argued, (and i agree!) that the best most obvious changes to ensure there is no confusion is to scrap the GRA and GRCs.

This wouldn't stop anyone who wants to "live as the opposite sex" from doing that, but they can just get on with it without needing a certificate to say that they can. And even those who go down the path a medical "transitioning" could have pathways to doing that. But it would not result in a piece of paper stating they are the opposite sex to the one they were born.

However contermporary TRA campaigns are not necessarily about helping those who experience body dysmorphia, it is about a political victory for those who want to claim sex isn't real or set. ie harking back to the queer origins of current TRA objectives.

Scottish Parliament does not have the power to change the definition of woman.

What is even more strange is that in 2021 the Scottish Law Society said it was legal to include trans women on boards as women.

https://www.lawscot.org.uk/news-and-events/legal-news/public-boards-law-able-to-count-trans-people-as-women/

So I am now wondering if the removal from the bill is to avoid another legal challenge by the UK Government about Westminister being the only Parliament that can change the working of a UK wide bill.

So they have not attempted to do this via a bill.

But presumably the legal guidance from the Scottish Law Society still exists.

This might be the reason, and might explain the bit that got me confused about "changing the definition of woman".

ie just more silly word games. Because the UK wide law isn't clear, no devolved Parliament can pass a bill that contradicts it.

So its just a stalemate, and will remain so because Labour isn't going to change the EA. Or if they did I bet it would be even more hardline in defining the rights of those with a GRC as opposed to those with a biological reality.

What is even more strange is that in 2021 the Scottish Law Society said it was legal to include trans women on boards as women.

www.lawscot.org.uk/news-and-events/legal-news/public-boards-law-able-to-count-trans-people-as-women/

I think there's a bit of confusion here. That link is a report on the ruling where FWS lost the case at the lower court, not any opinion or legal guidance from the Scottish Law Society. FWS appealed to the Inner House and won, the definition of woman in the public boards Act did not align with the Equality Act and was therefore unlawful. The Bill in Parliament this week was to comply with the court order and remove the wrong definition from the public boards Act. Nothing to do with any possible legal challenge by UKGov.

The Bill in Parliament this week was to comply with the court order and remove the wrong definition from the public boards Act.

I thought the Bill was amended to NOT include a definition based on legal advice re powers of Scottish Parliament.

That is just in line with UK Government being proved right that only Westminister can change definition. ie it is about what the Scottish Government wanted to pass as a law.

The fact they haven't put this in writing doesn't change the Scottish Law Society Advice as it is based on the situation prior to trying to get it amended as a law.

The "advice" is therefore based on the law as written, which hasn't been changed because the SNP withdrew their attempt to redine it in a bill.

The Gender Representation on Public Boards (Scotland) Act 2018 contained the definition:"“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."https://www.legislation.gov.uk/asp/2018/4/section/2/enactedLady Wise in the lower Outer Court ruled that was fine and dandy. The LawScot article you linked to was just a report about the ruling, it is NOT legal advice any more than the The Times article about the court ruling is.FWS appealed to the Inner House and won. Lady Wise's decision was overturned and the above definition of woman was ruled unlawful as it did not align with the Equality Act definition (a female of any age), and Scotgov has no power to change or modify it.The court ordered that the definition of woman in the GRPBA be removed. The Bill that has just passed in Parliament does exactly that. The definition (as above) will disappear from the text of the legislation in a few weeks.The definition of woman in the GRPBA is now the same as in the Equality Act. Whatever that means will be decided by the UK Supreme Court in November.