The Scottish Government acted lawfully in including trans women in an equal opportunities measure to improve women’s representation on public boards, a Court of Session judge has ruled.
Lady Wise gave her decision in rejecting a judicial review challenge by the organisation For Women Scotland, which claimed that provisions of the Gender Representation on Public Boards (Scotland) Act 2018 concerned matters reserved to Westminster and were also incompatible with EU law and with the UN Convention o the Elimination of Discrimination Against Women ("CEDAW").
The Act, which aims to ensure that 50% of non-executive public board members are women, includes all transgender women who are living as women, including those without a gender recognition certificate, within the definition.
For the petitioners it was argued that the Equality Act 2010, which formed part of the law concerning equal opportunities, preserved the distinction between sex and gender, and because positive action measures were on the face of it a breach of the general principle of equal treatment, the legislative exception allowing them was strictly hedged and bounded both procedurally and substantively. As a positive action measure, the 2018 Act had to identify a disadvantaged group or insufficiently represented group and comply with the requirements of the 2010 Act, in particular ss 158 and 159. In extending to persons who did not share the protected characteristic of sex (as women), it failed to do this.
Lady Wise ruled that the 2018 Act fell within the exception to the reservation of equality law to Westminster that permitted the Scottish Parliament to legislate for equal opportunities to public boards. The exception covered "any aspect of equal opportunities that falls within the scope of 'relating to the inclusion of persons with protected characteristics' on Scottish 41 public boards".
"I have concluded that the very specific and clearly defined devolved power in play in this case allows the inclusion of persons with more than one protected characteristic, as the plural form is used in the exception to the reservation", she held.
The petitioners had also failed to identify respects in which the Act contravened the Human Rights Convention or the other international agreements founded on; nor did it contravene the public sector equality duty.
Vic Valentine, manager of Scottish Trans, which was granted permission to intervene in the case, commented: "We are delighted that Lady Wise has held that the Scottish Government were able to include trans women in this legislation aimed at increasing women’s representation on Scottish public boards. This is an important decision: clearly stating that this equal opportunities measure for women that explicitly includes trans women in line with how they live their lives did not breach the law.
"We know that trans women continue to have almost no visibility in public life: whether that is in boardrooms, council chambers or Parliaments. We hope that any trans woman who has felt unsure about applying for a position on a Scottish public board due to this judicial review will be reassured by this decision."