Stop the Scottish Government redefining "woman" to include men

by For Women Scotland

Stop the Scottish Government redefining "woman" to include men

by For Women Scotland
For Women Scotland
Case Owner
For Women Scotland (FWS) is a group of ordinary women from across Scotland who campaign to protect and strengthen women’s and children’s rights.
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For Women Scotland
Case Owner
For Women Scotland (FWS) is a group of ordinary women from across Scotland who campaign to protect and strengthen women’s and children’s rights.
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Latest: April 14, 2021

Appeal

Having spoken to our lawyers and considered the financial implications and the appetite for this case, we have decided that we will appeal the decision on the Gender Representation on Public Boards A…

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We are challenging the Scottish Ministers over the definition of "woman" in the Gender Representation on Public Boards (Scotland) Act 2018 which we believe is outside the legislative competency of the Scottish Parliament under the Scotland Act 1998 and in contravention of the Scottish Ministers' duties under equality legislation.

This leaves us with a definition that includes some men, while, remarkably, excluding some women. This cannot be allowed to stand.

We are concerned about the potential implications beyond Scotland, as, if it becomes established that devolved legislatures can amend key terms in the Equality Act via other pieces of legislation, then other countries within the UK may follow and the Equality Act may be eroded.

Background

In 2018, the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act, (GRPBA), aimed at improving the representation of women on the boards of Scottish public authorities. The Act was introduced to redress historic under-representation of women on these boards by setting an objective for the non-executive member component in order to achieve 50% female representation. The Act places duties on public authorities, appointing persons, and Scottish Ministers in connection to their role in achieving the gender representation objective. The Statutory Guidance was published on 29 May 2020.

Originally, the Scottish Government stated that its 50% objective would be for those who are "female or who identify as female", but after a consultation in 2017 changed this to "women". According to the Policy Memorandum, "this step was taken to ensure that the Bill reflects the protected characteristic of sex in the Equality Act 2010"

However, during Stage 2 of the legislative process, following representations from Scottish Trans Alliance, the definition of "woman" in the Bill was again altered to include people who have not changed their legal sex to 'female' using a Gender Recognition Certificate (GRC), and exclude some people who remain female in law (those transitioning to live as men, but who do not have a GRC).

The draft guidance expands on the definition of "woman" and sets out examples of what would be regarded as 'evidence that the person was continuously living as a woman': 

"This would not require the person to dress, look or behave in any particular way. However, it would be expected that there would be evidence that the person was continuously living as a woman, such as – always using female pronouns; using a female name on official documents such as a driving licence or passport, or on utility bills or bank accounts; using female titles; updating the gender marker to female on official documents such as a driving licence or passport; describing themselves and being described by others in written or other communication as a woman."

The Act does not require an appointing person to ask a candidate to prove that they meet the definition of woman in the Act.

The Scottish Government consulted on the implementation of the Act in 2019. The consultation received over 300 responses: the majority of concerns focused on terminology, more specifically the definition of "woman", the confusion of different protected characteristics, and the undermining of the value of the Act.

The government determined that these concerns were outwith the scope of the consultation.

FWS believe that this Act, which was intended to address historical under-representation of women on public boards, is fundamentally flawed and the Scottish Ministers acted unlawfully and in contravention of their duties under equality legislation which led to the Scottish Parliament exceeding its legislative competency in redefining "woman". We object to this wholesale redefinition of women, which was done at the request of a lobby group, and without public consultation or proper Parliamentary scrutiny.

Case

FWS believes this Act sets a dangerous precedent. It is outwith the Scottish Parliament’s competency to redefine Protected Characteristics in discrete legislation nor undermine UK equality law. We are seeking a Judicial Review for the following reasons:

  • The area of law for "equal opportunities" is regulated by the Equality Act 2010 and as such is reserved to Westminster.

  • The Scottish Parliament has acted outwith its legislative 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 incompatible 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.

Clarity on this issue will benefit everyone and the repercussions extend beyond the GRPBA. Whilst reform of the Gender Recognition Act has been indefinitely postponed we are concerned that the GRPBA has been used to bring in legal self-identification of sex by the back door. We believe this has encouraged similar misuses of the protected characteristic of sex in legislation that is currently progressing through Parliament: the Forensic Medical Services Bill which states gender rather than sex and is therefore unable to guarantee female doctors for rape victims, and the possibility of the definition of sex changing if it is added to the Hate Crime Bill. Plus, of course, the forthcoming census which proposes self identification of sex. 

The implications also extend beyond Scotland, as, if it becomes established that devolved legislatures can amend key terms in the Equality Act via other pieces of legislation, then other countries within the UK may follow and the Equality Act may be undermined.

The Equality Act 2010 states "sex" is a reference to a man or a woman, and defines woman as "a female of any age".  Maintaining this definition is key to maintaining women's rights and protections in law.

Legal Action

The Court of Session has granted permission for the judicial review to proceed and a substantive hearing will be fixed in due course.

We are represented by an excellent legal team at Balfour + Manson and Aidan O'Neill QC.

Please support us by donating and sharing this page. Your help is invaluable and we appreciate all your help in fundraising and spreading the word.

Thank you for supporting this case!

Update 8

For Women Scotland

April 14, 2021

Appeal

Having spoken to our lawyers and considered the financial implications and the appetite for this case, we have decided that we will appeal the decision on the Gender Representation on Public Boards Act. Our legal team is confident that the judgement is legally challengeable.

We have already seen this law cited by lobbyists hoping to roll back women's rights, and we have seen an MP claim that she would have no issue with a “gender balanced” board made up of 50% men and 50% transwomen. The Scottish Government also take the view that men who self-identify as women, are women - and this will be the basis of future policies. Therefore, we feel we have a duty to Scottish women to continue to fight: we cannot leave this law on the statute books to the detriment of women.

We would rather we did not have to seek redress from the courts, but as the Scottish Government continues to refuse to engage with women, we have little choice. Unchallenged, we feel this would only embolden those who wish to undermine Equality Act 2010 - we understand that the Scottish Green Party are now demanding the adoption of the flawed Yogyakarta Principles into Scots Law.

A reclaiming motion was formally marked on 9th April and we will leave open our fundraiser. Thank you so much for your support thus far, we cannot do this without you.

Update 7

For Women Scotland

March 23, 2021

Decision

Unfortunately, the judicial review has failed. The Opinion of the judge, Lady Wise, can be read in full here:
https://forwomen.scot/wp-content/uploads/2021/03/2021CSOH031.pdf

We are obviously very disappointed and will be speaking with our solicitors once we have had time to thoroughly read the Opinion. In the meantime, thank you from the bottom of our hearts for supporting this action.

Update 6

For Women Scotland

March 21, 2021

Decision due

The Opinion of the judge, Lady Wise, is due to be published on Tuesday 23 March. It should be available from around noon at the Court of Session website:
https://www.scotcourts.gov.uk/search-judgments/court-of-session

Please continue to support us!

Update 5

For Women Scotland

Jan. 10, 2021

Substantive Hearing

The substantive hearing held on the 7th and 8th of January in the Court of Session has now concluded and we await the written decision from the Judge, Lady Wise - we have been advised this may take up to 3 months.

Our case has been covered extensively in the media, for example, in the Scotsman, the Times and the BBC:
https://www.scotsman.com/news/politics/scottish-government-can-ride-roughshod-over-equalities-law-row-over-definition-women-new-act-3089086

https://www.thetimes.co.uk/article/making-definition-of-women-trans-inclusive-is-unlawful-court-told-qpgmh8379

https://www.bbc.co.uk/news/uk-scotland-55582302

It also featured on BBC Reporting Scotland, a clip of which is on our YouTube channel: https://www.youtube.com/channel/UCE91hRSUC7SfIH4EnJaaulA/videos

For now, are keeping our fundraiser open as, due to considerable extra work and the hearing taking the two full days, we have exceeded our already expanded budget. Fortunately, we have a while as it will not be payable until the ruling so we can let it run. Thank you all for supporting us to date.

Update 4

For Women Scotland

Dec. 11, 2020

Application for Intervention Hearing

A hearing was held this morning to determine whether Equality Network should be allowed to intervene in the case. Lady Wise allowed intervention of a written submission of no more than 5,000 words by 18th December - permitted on the basis it doesn’t include evidence, but quotes and ex parte statements.

A protective costs order was granted so each party will be responsible for covering their own legal costs.

MurrayBlackburnMackenzie have tweeted about the hearing here:
https://twitter.com/mbmpolicy/status/1337372353446240264

Clearly this intervention will add considerably to our costs. Aidan O'Neill QC has already had to make an additional appearance in court and will now have to spend time addressing the contents of the intervention document.

#3words Please give generously.

Update 3

For Women Scotland

Dec. 1, 2020

Procedural Hearing and Next Stage

A procedural hearing was held last Thursday at the Court of Session to make sure all legal documents are now lodged correctly and to schedule additional court time for the substantive hearing to run over two days on 7th and 8th January.

Equality Network has submitted an application to intervene and, following the advice of our QC, we have raised an objection, primarily on the grounds that no new legal points have been raised. Additional court time has now been scheduled for 11th December to address the intervention.

The additional preparation and court time means that the final costs of our case are now heading towards the top end of the initial estimate given by our solicitors, so we are continuing to fund raise. We know it’s a tough time and you have all been more than generous so far, but please keep sharing and supporting our case. This is For Women in Scotland!

Update 2

For Women Scotland

Nov. 2, 2020

Target reached - thank you all!

You truly are wonderful! Thank you for supporting this important case and standing up for women. We have read every comment and many brought tears to our eyes. All donations large and small have been gratefully received and your contributions will enable us challenge the narrative of what it means to be a woman in Scotland.

We now have enough funds to cover our initial legal costs. The only thing that is certain about a judicial review however, is that it is expensive and our final costs are likely to be higher still.

We have reactivated the campaign with a stretch target of £80,000. All donated funds are transferred directly to our solicitors. After all legal costs are met, any excess funds are returned to Crowd Justice and are donated to their preferred charity. However, it is possible for us to nominate other CJ cases for receipt of these funds, and we would hope to support some of the other cases fighting on similar aspects of women and children's rights. Should we reach this point we will post an update.

Thank you all again.

Update 1

For Women Scotland

Oct. 23, 2020

Half way there!

Many thanks to all who have donated and supported us to get this far.

The Judicial Review hearing date has been set for the 7th January 2021 and we really need to reach our target to be able to proceed. Please keep sharing our page far and wide.

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