JUDGMENT SUMMARIES

Background

For Women Scotland sought a judicial review of Scottish Government legislation (Gender Representation on Public Boards (Scotland) Act 2018) which sets out positive action measures aimed at increasing the percentage to 50% of women serving as non-executive members on Scottish public boards. In particular, the organisation challenged the definition of ‘woman’ used in the 2018 Act.

The Equality Act 2010 regulates equality measures in Scotland as a reserved matter. However, the Scottish Parliament has devolved power to legislate for positive action measures around the composition of public boards.

For Women Scotland argued that the definition of woman used in the 2018 legislation did not reflect that used in the 2010 Equality Act and that this alteration went beyond the limit of the Scottish Government’s legislative competence in a reserved matter.

First Instance Ruling

The judge at first instance ruled that the 2018 Scottish legislation did not redefine woman for any purpose other than to include transgender women as another category of people who could benefit from the positive measure.

EU law supported the conclusion that in discrimination matters, transgender people were to be included as being of the sex to which they had reassigned.

She dismissed the petition.

Appeal

For Women Scotland were successful in an appeal against that decision.

An appeal division of the Court of Session ruled that the 2010 Act set out sex and gender reassignment as two separate protected characteristics.

The Equality Act defined sex as relating to women or men where ‘woman’ referred to a female of any age and ‘man’ to a male of any age. Gender reassignment was defined as a person who was proposing to undergo, was undergoing, or who had undergone a process (or part of a process) for the purpose of reassigning the person’s sex. The reassignment was the common factor of the protected characteristic, not the sex into which the person reassigned.

In delivering the opinion of the Court, the Lord Justice Clerk, Lady Dorrian, said: “By incorporating those transsexuals living as women into the definition of woman, the 2018 Act conflates and confuses two separate and distinct protected characteristics … It would have been open to the Scottish Parliament to include an equal opportunities objective on public boards aimed at encouraging representation of women. It would have been open to them separately to do so for any other protected characteristic, including that of gender reassignment. That is not what they have done. They have chosen to make a representation objective in relation to women but expanded the definition of women to include only some of those possessing another protected characteristic.”

The Court accepted that, having regard to the general population, it would be reasonable to set an objective that 50% of non-executive, public board members should be women. However, a reasonable percentage for an objective in relation to other protected characteristics would depend on various factors and be unlikely to result in a figure of 50%.

Lady Dorrian said: “The fact that an appropriate percentage for a representation objective in relation to one protected characteristic may not be proportionate and appropriate to another characteristic highlights why it is important to apply an individual approach to the characteristics and to focus in each case on those who share a relevant protected characteristic. ... the definition of woman adopted in the 2018 legislation includes those with the protected sex characteristic of women, but only some of those with the protected characteristic of gender reassignment.”

The Court made clear that the case had been about interpreting the law in relation to the legislative competence of the Scottish Parliament and had not been about transgender rights which was a separate policy issue entirely.

The judgment published on the Scottish Courts and Tribunals website is the only authoritative document.