A CAMPAIGN group is to appeal the Court of Session’s decision over the definition of “women” in law.
We previously told how a judge ruled that transgender women with a Gender Recognition Certificate (GRC) can legally be defined as women when it comes to legislation that aims to ensure gender balance on public boards.
However, For Women Scotland - the campaign group which took the Scottish Government to court over the definition of "woman" in the Gender Representation on Public Boards (Scotland) Act 2018 - called for a second judicial review following the ruling.
The group say treating “sex” as being capable of having different meanings depending upon context is “unworkable and impractical”.
It marks the fourth time the issue has made it to the Court of Session.
It comes as Lady Haldane also considers evidence from the UK and Scottish Governments over gender reform laws which were blocked by Westminster despite being passed by an overwhelming majority of MSPs.
The Gender Representation on Public Boards Act was passed in 2018 and works to ensure gender balance on public sector boards.
It originally stated the quota should include people who were living as a woman and who either had gone through or intended to go through the gender recognition process.
However, For Women Scotland argued ministers had broken with the definitions laid out in the 2010 Equality Act, which includes separate protections on the basis of sex and gender reassignment.
Although the group lost an initial judicial review, it was successful on appeal when Lady Dorrian ruled the bill “conflates and confuses two separate and distinct protected characteristics”.
The Scottish Government responded by changing the guidance notes for the bill to say it includes both women as defined by the Equality Act and people with a GRC as defined under the 2004 Gender Recognition Act.
It quotes directly from that act to say that “where a full GRC has been issued to a person that their acquired gender is female, the person’s sex is of a woman”.
However, For Women Scotland argued that by making reference to sex, the government was “still confusing the protected characteristics and are trying to redefine ‘woman’ yet again”.
However, Lady Haldane rejected this and concluded: “The revised statutory guidance issued by the Scottish Ministers is lawful.”
New arguments
The group are now appealing the decision based on five arguments, with a hearing beginning on Wednesday.
It says Lady Dorrian’s decision established the definition of “woman” under the Equality Act “excludes biological males” which it says should have been “highly persuasive”.
Following the ruling in December, the Scottish Government said it was “pleased to note the outcome of this challenge”.
Two other groups – the Equality Network and Scottish Trans – said the ruling “confirmed the position we and many others have understood it to be for well over a decade”.
They added: “This ruling does not affect the exceptions in the Equality Act which mean that single-sex services can exclude trans people or treat them less favourable where it is a proportionate means to a legitimate aim.
“In short, the ruling confirms the status quo an the rights of women and trans people under it.”
