Inner House upholds challenge to Scottish government legislation on gender equality on public boards

Lady Dorrian

About this case:

• Citation:
  [2022] CSIH 4
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lady Dorrian

It was argued by the reclaimer, For Women Scotland Ltd, that in disapplying parts of the Equality Act 2010 to the Gender Representation on Public Boards (Scotland) Act 2018, the Scottish government had exceeded the legislative competence of the Scottish Parliament.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Malcolm and Lord Pentland. O’Neill QC appeared for the reclaimer and Crawford QC for the respondents.

Separate protected characteristics

Under section 1 of the 2018 Act, a “gender representation objective” was created for public boards under which 50 per cent of their non-executive members should be women. Section 2 of the Act provided that the term “woman” included a person with the protected characteristic of gender reassignment where that person was living as a woman. Under section 11, parts of the Equality Act 2010 relating to positive action did not apply to any action taken under the 2018 Act.

It was held by the Lord Ordinary that the Scottish Parliament had devolved power to legislate for equal opportunities if the subject matter of the relevant provisions was the inclusion of anyone with any protected characteristic on Scottish public boards, thus allowing for the inclusion of persons with more than one protected characteristic such as transgender women. This did not interfere with the principle of equal treatment or redefine the term “woman” for any purpose other than to include transgender women as a category of people who could benefit from the positive measure.

Counsel for the reclaimers submitted that any legislation in terms of the public boards exception (PBE) still required to conform to the structures of the 2010 Act, whereby the protected characteristics of sex and gender reassignment were separate. Sections 158 and 159 represented the limit of what was possible in respect of positive action and thus there was also a compatibility issue with EU law and Convention rights.

The respondents’ position was that the PBE qualified the reserved matter of equal opportunities and thereby widened the legislative competence of the Parliament. They drew attention to P v S and Cornwall County Council (1996), which supported the approach that transgender women were relevantly similar to biological women for the purposes of equality of treatment and submitted that the Lord Ordinary was correct to highlight that the main purpose of the legislation was to increase the participation of women on public boards.

Expanded definition

Delivering the opinion of the court, Lady Dorrian noted the narrow focus of the case, saying: “The sole issue for the court is whether sections 2 and 11 of the Act were within legislative competence. The answer to that question hinges not on a debate about the rights and wrongs of policy decisions in this area, but on the proper interpretation of these sections, considered in the light of section 29 of the Scotland Act 1998, and in particular, the PBE in schedule 5 of that Act.”

On the effect of the PBE, she said: “The PBE is sufficiently widely worded to allow amendment or modification of the 2010 Act so far as doing so serves the purpose of the PBE, namely the inclusion of those with protected characteristics on relevant public boards. The Lord Ordinary noted that for non-public board functions there was an express prohibition on modification of the 2010 Act; however there was no such restriction in the PBE, and this is because equal opportunities was not reserved to the extent of that closely defined and limited exception.”

Turning to the nature of the protected characteristic of gender reassignment in the Equality Act, Lady Dorrian began: “No distinction is made between those for whom the relevant process would involve reassignment male to female or vice versa. This is emphasised by the fact that section 7(3)(b) specifies that in relation to gender reassignment a reference to those who share the characteristic is a reference to ‘transsexual persons’. In other words, it is the attribute of proposing to undergo, undergoing or having undergone a process for the purpose of reassignment which is the common factor, not the sex into which the person is reassigned.”

She went on to say: “Whilst it recognised that discrimination on the basis of gender reassignment was most likely to be sex discrimination, [no case law] is authority for the proposition that a transgender person possesses the protected characteristic of the sex in which they present. 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.”

Lady Dorrian concluded: “It would have been open to the Scottish Parliament to include an equal opportunities objective on public boards aimed at encouraging representation of women. It would have been open to them separately to do so for any other protected characteristic, including that of gender reassignment. That is not what they have done. They have chosen to make a representation objective in relation to women but expanded the definition of women to include only some of those possessing another protected characteristic.”

For these reasons, the relevant provisions of the 2018 Act were held to be outwith the legislative competence of the Scottish Parliament.