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by Louise Wilson
04 October 2023
Court hears appeal over definition of ‘woman’

The appeal was heard by Lord Justice Clerk Lady Dorrian (above), Lord Malcolm and Lord Pentland | Alamy

Court hears appeal over definition of ‘woman’

A campaign group has argued Scottish Government guidance relating to the definition of “woman” for the purpose of gender quotas on public boards contravenes the Equality Act.

But the government said that the definition as it applies to the Gender Representation on Public Boards Act is wider than “biological sex” owing to the Gender Recognition Act (GRA).

The appeal case was heard at the Court of Session on Wednesday.

For Women Scotland is appealing a ruling made by Lady Haldane late last year that Scottish Government guidance regarding the Gender Representation on Public Boards Act was lawful.

The Act seeks to ensure better gender balance on public boards and originally stated the quota can include trans women if they had a gender recognition certificate (GRC) or intended to go through the process of acquiring one.

A legal challenge brought by For Women Scotland resulted in Lady Dorrian ruling the bill “conflates and confuses two separate and distinct protected characteristics” – specifically sex and gender reassignment status, as set out under the 2010 Equality Act.

The Scottish Government published fresh guidance in response to that which said the definition of women included trans women with a gender recognition certificate, but not those only intending to acquire one.

It is this guidance which Haldane argued was lawful after For Women Scotland brought a court case on the matter, and is the focus of the appeal.

Aidan O’Neill KC, acting on behalf of For Women Scotland, argued the guidance “narrowed down the class of inclusion and exclusion” but still did not address the core problem of including those who are “biologically male” but have a GRC under the definition of woman.

He argued there was a distinction between “certified sex” and “actual sex”, adding: “Scottish ministers are saying certificated sex is what sex means in the Equality Act… I say no, it means, throughout the Act, actual sex – not what your various certificates might say, but what your actual sex is.”

The Equality Act defines woman as “a female of any age”, but the GRA states that when a person acquires a GRC, “the person’s gender becomes for all purposes the acquired gender”.

Ruth Crawford KC, representing Scottish ministers, argued this meant the definition of sex was “not restricted to those born and certificated as such in their birth certificates issued at birth. It does, in my submission, extend to those who hold a full GRC in the acquired gender. In that event, the protected characteristic of sex is shared with persons of the same sex, whether born or acquired.”

O’Neill argued that that part of the GRA was “not a freestanding principle”, with a subsection of the Act making it clear that it only applied subject to other legislation. He said the government had “given no explanation” about why the principle would apply in this instance.

Crawford said there was nothing in the Equality Act, which became law after the GRA, which suggested that part of the GRA would not apply.

Judges will ideliberate argumentsn the coming weeks and deliver a ruling in writing at a later date.

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