Challenge to definition of ‘woman’ in public boards legislation rejected by Outer House



Lady Wise
Lady Wise

A petition for judicial review of the legislative competence of parts of the Gender Representation on Public Boards (Scotland) Act 2018 brought by a private company has been rejected by a judge in the Outer House of the Court of Session.

For Women Scotland Ltd contended that parts of the 2018 Act were outside of the legislative competence of the Scottish Parliament. The Lord Advocate and the Scottish Ministers made responses to the petition, with an intervention by written submissions only being made by The Equality Network.

The petition was heard by Lady Wise. The petitioner was represented by O‘Neill QC, and the respondents by Crawford QC.

Gender representation objective 

The petitioner was described as a company comprised of women with an interest in “promoting women’s rights and children’s rights” in Scotland. It contended that parts of the 2018 Act related to reserved matters, that certain provisions of the Act were incompatible with EU law and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), and that the Scottish Ministers acted in breach of the Public Sector Equality Duty when bringing the substantive provisions of the Act into effect. 

Under section 1 of the 2018 Act, a “gender representation objective” (GRO) was established for boards of Scottish public authorities under which public boards should aim to have at least 50% of its non-executive members be women. Section 2 of the Act defined “woman” as including a person “who has the protected characteristic of gender reassignment [per 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 petition challenged these sections of the 2018 Act as well as section 11, which stated that sections 158 and 159 of the Equality Act, which allow for positive action measures only where they are a proportionate way of reducing the underrepresentation of people who share a protected characteristic, did not apply to any action taken under this Act. 

It was submitted for the petitioner that the definition of “woman” in the Equality Act referred to biological sex, and that gender identity was considered separately by that Act. Further, the GRO in the 2018 Act was a positive action measure which was required to comply with sections 158 and 159 of the Equality Act. There was no exclusion of the Scottish Parliament or its legislative activity from the restrictions imposed on positive action measures by the Equality Act. 

The petitioner argued that the measures created by the 2018 Act applied to a group of people who did not “share” a protected characteristic under the Equality Act, as they applied indiscriminately to both cisgender and transgender women. By putting these groups together, the Act failed to identify what, if any, relevant disadvantage might justify taking the required positive action measure. 

In response, counsel for the respondents submitted that the 2018 Act was limited in scope to public boards. The background to its passing included the report of the Smith Commission in November 2014, which included as a head of agreement that the powers of the Scottish Parliament would be extended to include the introduction of gender quotas in respect of public bodies in Scotland. All of the Equality Act provisions relating to different treatment of sexes in other respects were unaffected. 

Misconceived argument 

As a preliminary matter, Lady Wise noted in her opinion: “At its core, this litigation is concerned with whether certain statutory provisions were beyond the legislative competence of the Scottish Parliament. While I record certain statements that were made about [the] Scottish Ministers’ policy or position on transgender rights, that matter was at best tangential to the central dispute and has had no bearing on the decision that I have made.” 

Turning to the issue of legislative competence, she said: “Although the EA 2010 falls within the generally reserved matter of equal opportunities, not all Scottish legislation in the area of equal opportunities will relate to that reserved matter. Scottish legislation on one carefully defined devolved aspect of equal opportunities will not detract from the otherwise UK wide approach to the area.” 

Addressing the petitioner’s argument that the term “woman” meant biological woman for the purpose of equalities legislation, Lady Wise said: “This argument is misconceived. Section 2 of the 2018 Act acknowledges that those whose biological sex is female will be included in those who may benefit from the positive action measure. The provision does not redefine woman for any purpose other than to include transgender women as another category of people who can benefit from that measure.” 

She continued: “The very specific and clearly defined devolved power in play in this case allows the inclusion of persons with more than one protected characteristic as the plural form is used in the exception to the reservation. As the Equality Network pointed out in its helpful written submission, protected characteristics often ‘intersect’, with many individuals having more than one protected characteristic.” 

On the specific definition of “woman” used in Section 2, Lady Wise said: “Those who have the protected characteristic of gender reassignment as defined in section 7 of the EA 2010 are included but only if in addition to proposing to undergo, undergoing or having undergone a process for the purpose of becoming female that person is already living as a woman.” 

She continued: “It is clear, then, that the 2018 Act does not purport to redefine ‘woman’ in the sense of excluding those who have that biological sex, nor does it seek to redefine the protected characteristic of gender reassignment which definition is governed by UK wide legislation and not part of the exception.” 

Lady Wise concluded: “[The 2018 Act] does not and could not alter the protected characteristics defined in the EA 2010 as the exception itself refers to protected characteristics as the benchmark for inclusion on Scottish public boards about which the Scottish Parliament can legislate. It is otherwise clear from the express terms of the exception that equal opportunities are now within devolved competence but only for equal opportunities measures relating to the inclusion of those with protected characteristics on Scottish public boards.” 

For these reasons, the petition was rejected. Arguments relating to the PSED, EU Law, and CEDAW were also dismissed in a shorter section of Lady Wise’s judgment.

© Scottish Legal News Ltd 2021



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