Gender Representation on Public Boards (Amendment) (Scotland) Bill

This is our short submission to the Scottish Parliament’s Equalities, Human Rights and Civil Justice Committee’s call for views on the amendment to the GRPB Act to bring it into line with the court ruling of the judicial review we won in February 2022.

Since the court ruling the Act has remained in operation with the definition of “woman” matching that of the Equality Act: a female of any age. We are pleased to see this Bill as it will finally remove the unlawful transwoman inclusive definition of “woman” from the face of the published legislation.

NB. This is quite separate from our later judicial review on the statutory guidance for the GRPB Act which examined the definition of “sex” in the Equality Act.

Submission:

The definition of “woman” in the Act was ruled unlawful by the Court of Session Inner House and a court order issued in March 2022 requiring the Scottish Ministers to remove the definition from section 2 of the published Act. As acknowledged in the Bill Overview the Scottish Government does not consider there to be any alternative course of action.
It is therefore unclear what discussion of “merits or otherwise” there can be on the Ministers’ legal obligation to comply with the court order. The judgment was very clear that incorporating a person who holds the protected characteristic of gender reassignment and who is ‘living as a woman’ into the definition of woman impinged on reserved matters and was therefore unlawful.
As the women’s rights group who won this judicial review, and on behalf of the 5,278 people who generously contributed £196,815 to our CrowdJustice fund for the legal costs, we would expect to see the Bill progress as it stands. Any deviation could risk the Scottish Ministers facing further proceedings in the Court of Session for contempt.

All consultation submissions were published by the Committee on 30 January 2024. Our submission is here.