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by Louise Wilson
23 March 2021
Trans women’s inclusion on gender balance legislation ruled lawful

LightField Studios Inc. / Alamy Stock Photo

Trans women’s inclusion on gender balance legislation ruled lawful

The inclusion of trans women in legislation to increase the number of women on public boards has been ruled lawful by the Court of Session.

A court case was brought against the Scottish Government over the Gender Representation on Public Boards Act, after claims it went beyond the legislative competence of the Scottish Parliament.

It was argued that the legislation sought to alter equal opportunities powers which are reserved to Westminster.

But Lady Wise concluded the Scotland Act included an exception to the equal opportunities reservation relating to Scottish public boards.

In her written judgement, she said: “The purpose of the 2018 Act is to improve gender representation on Scottish public boards.

“While the visible representation the legislation aims to increase is that of women, the inclusion of those with the protected characterises of gender reassignment and living as women for that purpose does not fall within the reserved matter of equal opportunities because of the terms of the public boards exception.”

She also rejected the argument that the Act contravened the Equality Act.

For Women Scotland, who brought the court case, said it was “hugely disappointed” and the organisation is seeking further legal advice.

A spokesperson said: “At a time where the endemic nature of the discrimination and violence women experience on the basis of sex, it will come as shock to many women in Scotland that the Scottish Government can redefine what it means to be a woman in law.”

The Act was passed in 2018 in a bid to ensure gender balance on public boards.

If two equally qualified candidates have applied for a role, public bodies are required to give preference to female candidates.

The ruling has been welcomed by Scottish Trans. Manager Vic Valentine said: “We believe women should have their voices heard and be represented on public boards, and trans women should not be singled out to be excluded.

"We are pleased that this outcome means that all women, including transgender women, will continue to have that representation guaranteed.”

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