Scottish Women’s Group Wins Appeal against Redefinition of 'Woman'

For Women Scotland (FWS), a grassroots women’s organization, won a motion to stop the Scottish Government from redefining “woman” in the UK Equality Act on January 18, 2022. This comes a year after the group had lost their judicial review of Act 2018 - Gender Representation on Public Boards (GRPBA).

According to FWS, the judicial review aimed to challenge the Scottish Ministers over the definition of “woman” in the act, which included men who believe they are women (“trans women”). They first instructed solicitors in June 2020, and started a crowdfunding campaign after the paperwork was filed in August that same year, which reached their target of 50k GBP in November.

The grassroots group believes that Act 2018, by including men in the definition of “woman,” while “excluding some women,” e.g. those who believe that they are men (“trans men”) or non-binary - is “outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 and in contravention of the Scottish Ministers' duties under equality legislation.”

The GRPBA aimed to improve women’s representation on Scottish public authorities’ boards and “redressing” the “historic under-representation of women” in order to achieve 50% female representation. However, the Scottish Government stated that this 50% would consist of those who are "female or who identify as female." It is said that, after a consultation, this was changed to “women,” to ensure that the bill reflected the protected characteristic of sex in the Equality Act 2010. After an intervention by Scottish Trans Alliance, the definition of “woman” was changed again to include males who have not acquired a Gender Recognition Certificate (GCR) but excluded females who believe they are men, but have not acquired a GRC.

For Women Scotland stated in their crowdfunding that this Act is “fundamentally flawed,” and it is not the scope of the Scottish Parliament to redefine womanhood. In March, 2021, FWS lost their Judicial Review, and decided to appeal the decision. A reclaiming motion was formally marked on 9th April last year.

In the February 18 2022 ruling, the document published by the Scottish Government states that the 2018 Act did not “redefine ‘woman’ for any other purpose,” than to include “transgender women as another category” to benefit from the 50% of female representation.

“The definition of ‘woman’ adopted in the Act impinges on the nature of protected characteristics which is a reserved matter,” says the document. “Changing the definitions of protected characteristic… (sex) is not permitted and in this respect the 2018 Act is outwith legislative competence…. For the above reasons the reclaiming motion succeeds.”

In a statement to 4W.Pub about the ruling, Trina Budge, Co-Director at FWS, said: “We are delighted that we have won our appeal on Gender Representation on Public Boards Act.”

“Had this Act not been challenged, it would have allowed for the farcical position of Scottish public boards to comprise entirely of men, half of whom 'self-identify' as women. The judges have restated that the Protected Characteristic of sex refers to either a male or a female and that provisions in favour of women must, by definition, exclude those who are biologically male.”

“Not for the first time it has fallen to unfunded volunteers to challenge the power of the Scottish Government over faulty legislation. We would much rather our MSPs did their duty and scrutinised Bills thoroughly instead of leaving the courts to untangle them later.”

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