MSPs back bill to remove expanded definition of ‘woman’ from gender balance law

Holyrood’s equalities committee has backed a bill that will remove the definition of “woman” from legislation which aims to improve the gender balance on public boards.

The Gender Representation on Public Boards (Amendment) Bill was introduced by government following a legal challenge to the 2018 Act.

The Court of Session ruled that including an expanded definition of “woman” within the original legislation went beyond the powers of the Scottish Parliament.

Karen Adam, convener of the parliament’s Equalities, Human Rights and Civil Justice Committee, said: “Our committee is satisfied that this bill provides a technical fix, in order to tidy up the statute book, following the rulings of the Court of Session.”

The Gender Representation on Public Boards Act’s definition of “woman” currently includes all trans women regardless of whether they had obtained a gender recognition certificate.

But the Equality Act makes a distinction between the protected characteristics of sex and gender reassignment, and states only a person who has obtained a gender recognition certificate has legally changed their sex.

This therefore means trans women who do not have gender recognition certificate are not legally defined as women.

The Gender Representation on Public Boards Act as it stands states “’woman’ includes a person who has the protected characteristic of gender reassignment… if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”.

This has no legal effect, however, after the Court of Session said the Scottish parliament did not have the power to have “expanded the definition of women” and the Act  “impinges on the nature of protected characteristics which is a reserved matter”.

Guidance following the ruling was published by the Scottish Government to clarify the definition of women included trans women with a gender recognition certificate, but not those only intending to acquire one.

The amending bill will proceed to a stage one debate in the coming weeks.