Scotland's Women Gather 2023 - For Women Scotland

Elect Her is holding what should be a fantastic women’s event at the Scottish Parliament on 24th June to celebrate and encourage women into politics. Unfortunately, many women have had cause for complaint, not only about the ticket application that required them to declare they “identify” as women – thankfully later fixed – but also about it being open to men who identify as women or non-binary.

We believe this to be clearly unlawful under the Equality Act provisions for “positive actions” for women and by the court rulings on our judicial reviews, so we wrote to Elect Her on 30th May asking that they take steps to bring the event into compliance with the law. We also wrote to Alison Johnstone MSP as the Parliamentary host of the event. Our letter and the responses received are given below.

As you can see, both have declined to comply with the law. It’s a bit shocking to see Parliament refuse to even comply with the ruling the Scottish Government won in court that a man is only included in the definition of “woman” once he has obtained a female Gender Recognition Certificate.

We also referred the matter to the Equality and Human Rights Commission for investigation and enforcement but are still waiting for more detail after their initial referral to their legal colleagues.

So, once again women are on our own to deal with this. Given the short notice and a distinct lack of pots of gold to take any legal action we think it’s time to follow Helen Joyce’s suggestion. These men have no right to intrude in our spaces and our events, and our silence should not be taken as proof that we’re okay with it. We’re not.

“Growing opposition to gender-identity ideology is giving an increasing number of women the courage to tell these men that we see them as men, and that they must now get out of places they were never entitled to be”.

“women’s rights are on the line, and we’re half the population. We can’t indulge them any more. And so we’re saying politely: You’re men. Stop trying to control our language. Stop coming into our spaces.”

Please bear this in mind if you are one of the many gender critical women attending the event at Holyrood on Saturday. Maybe we’ll be lucky, maybe the entitled men will stay away. But if not, please let them know, let Elect Her know: it is not okay and it must stop.

Provisions in favour of women…by definition exclude those who are
biologically male.

For Women Scotland v Scottish Ministers [2022]

Dear Elect Her,

Many women have raised concerns with us regarding the Scotland’s Women Gather event on 24 June. It is advertised as a women-only event to encourage “taking up space in the world of politics”, yet the application form for tickets and the FAQ of your website make it clear that transwomen (with or without a GRC) and non-binary people are also welcome.

As Elect Her is an organisation that takes positive action measures to enable or encourage women into political roles in order to increase participation and achieve equality with men I am sure you are aware of the need to comply with section 158 of the Equality Act 2010. Positive actions such as training, events and workshops can only lawfully be provided for those persons who share a protected characteristic. In this case, the protected characteristic is “woman” (section 11) and is defined as a “female of any age” (section 212).

Men who hold the protected characteristic of “gender reassignment” (not all transwomen have this protected characteristic) and men who claim to not have a sex or be “non-binary” (which is not a protected characteristic) do not have the protected characteristic of “woman”. Importantly, the exclusion of some women (transmen) who do share the protected characteristic of “woman”, and face many of the disadvantages and under-representation in politics as other women, is discriminatory. By including some men and excluding some women from a women-only event Elect Her is in contravention of the Equality Act.

The definition of “woman” has recently been the subject of legal action in the Scottish courts and there are two relevant judicial review decisions, both of which concern the Gender Representation on Public Boards (Scotland) Act 2018. This Act is a positive action measure aiming to increase the representation of women on public boards and is covered by section 158/159 of the Equality Act (and a specific provision for public boards in the Scotland Act 1998). The rulings are therefore directly relevant and applicable to the positive actions for women taken by Elect Her.

The most recent is a first instance case by the Court of Session Outer House, For Women Scotland v Scottish Ministers [2022] CSOH 90, which ruled that “woman” in the Equality Act includes men who have obtained a female Gender Recognition Certificate (GRC) and correspondingly excludes women with a male GRC. If Elect Her follows this ruling you would need to establish which of the transwomen who wish to attend events have a GRC, and only include those. Any “self-identifying” transwomen remain male in law and should not be included. This ruling is currently being appealed and should not be taken as the settled law on the subject until that appeal is resolved.

The second case however, For Women Scotland v Scottish Ministers [2022] CSIH 4, is settled, with a ruling from the higher Inner House court accepted by the Scottish Government and a court order issued to remove the unlawful definition of “woman” from the public boards Act. It was the decision of the court that “woman” and “gender reassignment” are distinct and separate protected characteristics which should not be confused or conflated. Paragraph 40 states that “transgender women” is not a protected characteristic and of particular note is paragraph 36, which states:

“Thus an exception which allows the Scottish Parliament to take steps relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.”

The Scottish Government and the Equality and Human Rights Commission have confirmed in court and in writing that a GRC cannot, and does not, change a person’s biological sex. Therefore, positive actions for the protected characteristic of “woman” by definition in the Equality Act must exclude all biological males regardless of their personal identity, gender reassignment or GRC status. To comply with this ruling, Elect Her should ensure that only women, as a biological sex class, attend women-only events.

It was ruled that the Scottish Government is not permitted to change the definition of this protected characteristic of “woman” and it is equally unlawful for Elect Her to do so, regardless of any well-meaning intention to be “inclusive”. It is not inclusive to exclude some trans-identifying females, and it is not acceptable for Elect Her to tell women who may self-exclude due to discomfort at an event which is only notionally for women that “unfortunately perhaps this isn’t the space for you”.

I ask that you take immediate steps to rectify the situation and conduct this event, and all Elect Her’s activities, in accordance with the terms of the Equality Act and the Inner House judgment.

Yours sincerely,

For Women Scotland