Scottish Government to remove definition of woman from gender quota law after court ruling

The Scottish Government has acted to remove the definition of “woman” from an Act which seeks to increase female representation on public boards, following a court ruling that this was outwith the competence of the Scottish Parliament.

The Gender Representation on Public Boards Act was passed in 2018 and set the objective of having half of public boards's non-executive members be women.

As part of that legislation, “woman” was defined so as to include all trans women, regardless of whether they had obtained a gender recognition certificate.

The Court of Session ruled in February last year that the parliament did not have the power to have “expanded the definition of women”.

Judges said the definition of woman adopted in the Act “impinges on the nature of protected characteristics which is a reserved matter”.

Now the Scottish Government has laid the Gender Representation on Public Boards (Amendment) Bill before parliament which will entirely remove the section of the Act which seeks to define “woman”.

Social justice secretary Shirley-Anne Somerville said: “The legislation to amend the Act will align the Act with the Court of Session ruling to ensure the statute book is not misleading. This is something we believe we are required to do in light of the court’s ruling.

“The change does not impact how the 2018 Act has worked since the court’s ruling. The Scottish Government remains committed to achieving greater gender equality and creating a fairer Scotland for everyone.”

The UK Equalities Act makes a distinction between the protected characteristics of sex and gender reassignment.

But a person who has obtained a gender recognition certificate via the process set out in the 2004 Gender Recognition Act legally changes their sex to their acquired gender, according to a separate court ruling by Lady Haldane last year.

This was reinforced last week after campaign group For Women Scotland’s appeal against that decision was refused.

The Gender Representation on Public Boards Act currently 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”.

However this does not have any legal effect because it goes beyond the powers of the parliament. 

Guidance following the Lady Haldane 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.