Scottish Government Faces Court Action for Redefining “Woman” to Include Men
Re: Gender Representation on Public Boards Act 2018
A letter has been sent to the 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”. This follows the publication of Statutory Guidance on 29 May 2020.For Women Scotland is a national women’s rights group funded entirely by supporters.
A legal opinion has been provided by Aidan O’Neill, QC. Outlining the possibility of a court challenge, For Women Scotland warns that it may decide to take the matter further by seeking a Judicial Review.
The letter on their behalf from law firm Balfour + Manson states 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.
Speaking for For Women Scotland, Marion Calder said: “It beggars belief that the Scottish Government has introduced new legislation that contravenes the very essence of what a ‘woman’ is in law. This is just the introduction of self-identification of sex by the back door.”
The GRPBA introduces a test to determine if a male candidate, who has the protected characteristic of “gender reassignment”, is “living as a woman”. This would not require the person to dress, look or behave in any particular way. However, it is expected that a female name is used on official documents such as utility bills, and the person describes themselves, and is described by others, as a woman. Crucially though, “the Act does not require an appointing person to ask a candidate to prove that they meet the definition of woman in the Act”.
For Women Scotland has objected vehemently to this wholesale redefinition of women: “We believe this Act raises significant concerns for the status of women in Scotland. As a tool for increasing the representation of women, it is rendered ineffective and may be used as precedent to undermine legal protections for women in a manner which runs counter to UK and EU equality law.”