Naomi Cunningham

Women remain under-represented in Scottish public life. According to feminist advocacy group Engender, women only account for 29 per cent of local councillors and 23 per cent of council leaders. A third of MSPs are women.

Two mechanisms are typically used to increase representation of women in the Scottish Parliament: all-women shortlists, and a technique known as ‘zipping’, whereby male and female candidates are ordered alternately. All the parties fielding candidates in the 2021 election plan to use one or both of these techniques in at least some seats with the exception of the Scottish Conservatives.

Who counts as a woman for these purposes has become contentious in recent years.

Positive action under section 104 of the Equality Act 2010

In general, associations (including political parties) are prohibited under the EqA 2010 from discriminating against members on grounds of any of the nine protected characteristics, including both sex and gender reassignment. But section 104 provides limited exemptions where a political party takes positive steps to address inequality in its representation in elected bodies. Inequality is defined as an inequality between the number of the party’s candidates elected who do, and who do not, share a particular protected characteristic.

A political party can take these steps to address inequality based on any of the protected characteristics, not just sex. But sex is singled out for special treatment. In general, short-listing only persons who have a particular protected characteristic is prohibited; but by section 104(7), single-sex shortlists are permitted; and exempted from the usual requirement to be a proportionate means of achieving the aim of reducing inequality.

Zipping techniques are permitted for the same purpose, but – unlike all-women shortlists – have to be a proportionate means of achieving that purpose.

Who is a woman for the purposes of these measures?

If trans women wish to be included on all-women shortlists or in “zipping” arrangements, two questions arise. May the party do this? And if so, must it? 

The measures are restricted to candidates who share the protected characteristic of the underrepresented sex. Section 11 of the EqA explains that in relation to the protected characteristic of sex, “a reference to a person who has a particular protected characteristic is a reference to a man or a woman”. Section 212 of the act defines ‘woman’ as “a female of any age”.

The Gender Recognition Act 2004 allows individuals to change their legal sex. Section 9 provides that where a full GRC is issued to a person, that person’s sex changes to the opposite sex – for all purposes, except where other legislative provisions say otherwise. 

This provision would be unnecessary if a trans person could change their legal sex simply by self-identifying as the opposite sex. As the Equality and Human Rights Commission noted in a statement published in July 2018, a trans woman who does not hold a GRC is “legally male [and] would be treated as male for the purposes of the sex discrimination provisions, and a trans woman with a GRC would be treated as female”.

There are no specific exceptions from the effect of section 9 of the GRA relating to the operation of section 104 of the EqA, so trans women who hold a GRC must be treated as female for the purposes of selection arrangements. Because they are legally female, to exclude them because of their male biology would be discrimination on grounds not of sex, but of gender reassignment. There is no basis on which discrimination on gender reassignment could be said to be part of selection arrangements made for the purpose of reducing inequality between men and women, because – given that “women” for these purposes includes any trans woman with a GRC – it would not have that effect. That discrimination would not be sanctioned by section 104, and would be unlawful.

The position for trans women who do not have a GRC is different. They are legally male. So if they are admitted to all-women shortlists, those shortlists cease to be composed “only of such persons as have a particular protected characteristic”.

This means the specific authority provided by section 104(7) no longer applies. To be lawful, the shortlist would have to be able to be shown (i) to be an arrangement whose purpose was to reduce inequality in the party’s representation between those who have and those who do not have a particular protected characteristic; and (ii) to be a proportionate means of achieving that purpose. 

An all-women shortlist is obviously an arrangement whose purpose is to reduce inequality between the numbers of men and women elected. But a shortlist open to women plus male individuals if they identify as women would not seem to be an arrangement whose purpose was to reduce inequality between men and women, but instead an arrangement whose purpose was to reduce inequality between men and people who identify as women. That is not an ‘inequality’ of the kind recognised by section 104(4), so the arrangement falls outwith the limited permission to discriminate granted by section 104.

Legal risks for political parties

Throwing all-women shortlists or zipping arrangements open to candidates who are still legally male is likely to destroy the protection for such arrangements offered by section 104 of the EqA 2010. The exclusion of men will simply amount to unlawful discrimination on grounds of sex, and will expose a political party to complaints of direct sex discrimination by any other male candidate who was rejected. It may also expose parties to complaints of indirect sex discrimination by women who have lost out to trans women in the operation of these arrangements.

Naomi Cunningham is a barrister at Outer Temple Chambers