Public Boards Act held ultra vires in defining "woman"

The law providing for equal representation of women on public boards in Scotland was beyond the competence of the Scottish Parliament in the way it attempted to define "women", the Court of Session has ruled. 

Lord Justice Clerk Lady Dorrian, Lord Malcolm and Lord Pentland gave the decision in allowing an appeal by the organisation For Women Scotland, which brought a judicial review petition over provisions of the Gender Representation on Public Boards (Scotland) Act 2018.

The provisions challenged were s 2, which defines "woman" as a person with the protected characteristic of gender reassignment if living as a woman and undergoing a process for that purpose; and s 11, which disapplies provisions of the (UK) Equality Act 2010 including those relating to positive action.

The petitioners argued that the 2018 Act failed to follow the structure of the 2010 Act, which kept the protected characteristics of sex and gender reassignment wholly separate. The Lord Ordinary held that the 2018 Act did not interfere with the principle of equal treatment because it was designed to accelerate or achieve equality of representation on public boards. In discrimination matters, trans people were to be included as being of the sex to which they had reassigned. A deviation from or modification of the 2010 Act in so far as necessary to fulfil the purpose of including persons with protected characteristics on Scottish public boards was an acceptable ancillary consequence of legislating within the Parliament's power. 

Giving the opinion of the court, Lady Dorrian emphasised that the case was not about the "highly contentious" policy debate about transgender rights. Nor was it suggested that taking positive action in respect of the appointment of women to public boards was beyond the legislative competence of the Parliament. The court agreed with the Lord Ordinary that the specific power to do so allowed modification of the 2010 Act, so far as required for the purposes of legislating in respect of that power. 

The Parliament, she continued, would have been entitled to make provision in respect of either or both the protected characteristics of “sex” and “gender reassignment”. So far as the characteristic of sex is concerned, it would be open to the Scottish Parliament to make provision only for 20 the inclusion of women, since a reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman.

However the cases did not vouch the proposition that sex and gender reassignment were to be conflated or combined, particularly as the 2010 Act maintained the distinct categories of protected characteristics, and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate were limited. "By incorporating those transsexuals living as women into the definition of woman the 2018 Act conflates and confuses two separate and distinct protected characteristics, and in one case qualifies the nature of the characteristic which is to be given protection."

The Parliament had 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 possible effect was illustrated by the petitioners' submission, "admittedly farfetched and unlikely to happen – that under this definition the representation objective could as a matter of law be met by the appointment of no individuals possessing the protected sex characteristic of women". 

Lady Dorrian concluded: "The Lord Ordinary stated that the 2018 Act did not redefine 'woman' for any other purpose than 'to include transgender women as another category' of people who would benefit from the positive measure. Therein lies the rub: 'transgender women' is not a category for these purposes; it is not a protected characteristic and for the reasons given, the definition of 'woman' adopted in the Act impinges on the nature of protected characteristics which is a reserved matter. Changing the definitions of a protected characteristic, even for the purpose of achieving the GRO, is not permitted and in this respect the 2018 Act is outwith legislative competence."