Male on an all-women shortlist

We have sent the following letter to the Chair of the SNP’s National Executive Committee and Humza Yousaf, the leader of the SNP.

It has been brought to our attention that Amber Roberts has been selected to stand for the SNP NEC Lothian on an all-women shortlist. Roberts is male and is not eligible for a place on an all-women shortlist.

As you will be aware, all-women shortlists are positive actions designed to redress the historical under-representation of women in Parliament and other elected positions. They are legislated for by the Equality Act 2010, Part 7, section 104 and the accompanying Explanatory Notes.

The Equality Act is quite clear: these shortlists are single-sex and are restricted to candidates who share the protected characteristic of the sex that is under-represented. For the avoidance of doubt, the Equality Act states in section 11 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 to a woman” and section 212 defines a woman as a “female of any age”.

The Court of Session in For Women Scotland v Scottish Ministers [2022] CSIH 4 (see para 36) ruled that a similar positive action to increase women’s representation on public boards must adhere to the definition of “woman” in the Equality Act and that such provision for women, by definition excludes biological males. This decision is binding and was accepted by the Scottish Government. The SNP should be fully aware that including Roberts on an all-women shortlist is unlawful.

Even going by the decision of the lower court by Lady Haldane (which is under appeal and not yet settled) that “woman” is not limited to biological sex but includes those with a Gender Recognition Certificate showing the acquired gender, Roberts is still not eligible for the all-women shortlist as he does not hold a GRC. The Equality and Human Rights Commission state “a trans woman who does not hold a GRC and is therefore legally male would be treated as male” under the Equality Act.

The courts have ruled that the Scottish Government is not permitted to change the definition of the protected characteristic of “woman” and it is equally unlawful for the NEC to do so.

We would appreciate swift action on this matter and trust the NEC will ensure compliance with the law by removing Roberts from the all-women shortlist.  We would be grateful for confirmation and reassurance that steps have been put in place to ensure that this situation does not reoccur and that actions taken to increase political opportunities for women are restricted to women, not used to bolster male representation.

This is a recent photograph of Amber Roberts (posted on Twitter in Feb 2023).

Update 9th October:
We have sent the following letter to the Chair of the SNP’s National Executive Committee and Humza Yousaf, the leader of the SNP:

Further to my previous letter, for which I still await a reply, I would like to bring to your attention statements made by the KC representing the Scottish Ministers at the judicial review appeal on the statutory guidance for the Gender Representation on Public Boards Act. 

The video of the hearing is on the Court of Session website and a transcript is available here:

The conversation between the judges and Ms Crawford KC (pages 3 – 8 of the transcript) examined the single-sex exceptions in the Equality Act and concludes with the following statement by Ms Crawford:

Having been walked through it, I think that must be correct, because as My Lady in the chair correctly points out, the person without the full GRC would not be entitled to access the single-sex services because they wouldn’t have the sex of their acquired gender.

Now that the Scottish Ministers have confirmed their position in court that males without a GRC have no entitlement to access women’s single-sex provision we would appreciate confirmation that Amber Roberts has been removed from the women-only list with immediate effect.