Scottish Government Faces Judicial Review for redefining “Woman” to Include Men
Re: Gender Representation on Public Boards Act 2018
On 31st July 2020, a pre-action letter was sent to the Scottish Government by lawyers acting on behalf of For Women Scotland expressing significant concerns that a law intended to address historical under-representation of women on public boards is fundamentally flawed and that the Scottish Government has exceeded its authority in redefining “woman”.
The government responded on 19th August, saying they are “satisfied that the Gender Representation on Public Boards (Scotland) Act 2018 and subordinate legislation made and statutory guidance published under it are within legislative and devolved competence.”
Although disappointed the matter could not be resolved informally, For Women Scotland have instructed solicitors Balfour + Manson to lodge a petition to proceed with a judicial review. This has now been registered and accepted by the Court of Session.
The petition maintains that:
- The area of law for “equal opportunities” is regulated by the Equality Act 2010 and as such is reserved to Westminster.
- The Scottish Government has acted outwith its competence by confusing the distinct protected characteristics of “sex” and “gender reassignment”. The Equality Act only allows for measures for those persons who share a protected characteristic, not for merging different protected characteristics.
- The redefinition of “woman” includes persons who may self-identify as women, but who the Equality Act would characterise as male. It also excludes persons who would be characterised as female, ie. those women who self-identify as men.
- The redefinition of “woman” goes against the very grain of the Equality Act 2010 and decades of anti-discrimination law.
- The GRPBA is not compatible with EU law, which only makes provision for the possibility of workplace-related “positive action” in relation to inequality between the sexes.
- Scottish Ministers failed to assess the impact of applying the new law on the need to advance equality between women and men, or consider the need to foster good relations.
For Women Scotland has objected vehemently to this wholesale redefinition of women, which was done at the request of a lobby group, and without public consultation or Parliamentary scrutiny.
Speaking for FWS, Trina Budge said “It is untenable that ‘woman’ is defined differently across the laws of Scotland. This case is vitally important to stop the erosion of women’s rights in law and we are grateful for the public support in bringing this action to hold the government to account.”
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