In this appeal, the appellant challenges the lawfulness of statutory guidance issued by the respondent, which has the effect that a GRC recognising that a person’s gender is female brings them within the EA 2010 definition of a “woman”.

The Gender Representation on Public Boards (Scotland) Act 2018 is an Act of the Scottish Parliament. It sets targets for increasing the proportion of women on public boards.

The original 2018 Act definition of a “woman” included people:

• (i) with the protected characteristic of gender reassignment;
• (ii) living as a woman; and
• (iii) proposing to undergo / undergoing / who have undergone a gender reassignment process.

In a 2022 legal challenge brought by the appellant (FWS1), the Court of Session found that this statutory definition was unlawful, as it dealt with matters that fall outside the legislative competence of the Scottish Parliament.

Following FWS1, the respondent issued new statutory guidance. This is the guidance currently under challenge. It states that, under the 2018 Act, the definition of “woman” was the same as under the Equality Act 2010. It also stated that a person with a GRC recognising that their gender is female has the sex of a woman.

The appellant challenged the lawfulness of the respondent’s statutory guidance in the Court of Session. The appellant’s arguments included that the guidance failed to respect the decision in FWS1. On 13 December 2022, the Outer House dismissed the appellant’s petition. The appellant appealed. On 1 November 2023, the Inner House upheld the decision of the Outer House and dismissed the appellant’s appeal.

The appellant now appeals to the Supreme Court.