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Gender Representation on Public Boards (Amendment) (Scotland) Bill

What is the Bill all about?

In 2018, the Scottish Parliament passed the Gender Representation on Public Boards (Scotland) Act 2018. The law aimed to increase the representation of women on the boards of certain Scottish Public Bodies (like the Accounts Commission or the National Library). It did this by requiring these bodies to appoint a woman when recruiting for board members if:

  • two candidates were equally good as one another, and
  • only one was a woman, and
  • fewer than 50% of their board members were women

The Act contained a definition of ‘woman’ that would have meant that all trans women who had already permanently transitioned to living as a woman, whether they did or didn’t have a Gender Recognition Certificate, would be counted as a woman if there was ever this kind of situation. That definition was supported by every party at Holyrood.

In 2020, a group called For Women Scotland took a court case challenging that definition. Initially, they lost the case. But they appealed the decision, and they won on appeal in 2022.

They won because the Court of Session found that although the Scottish Parliament has devolved power to pass some laws about positive action (taking measures targeted at specific groups to improve their participation and decrease disadvantage), it does not have the power to change who counts as a woman in the Equality Act 2010. That power is reserved to the UK Parliament. The effect of the court ruling was to cancel the fully trans-inclusive definition of woman in the 2018 Act, meaning that the definition in the Equality Act applies instead, and only trans women with gender recognition certificates are considered women for this purpose.

This new Bill is a response to that court ruling. It is a very short Bill that simply deletes, on paper, something that was effectively removed from the 2018 Act by the court, in 2022.

The Bill was introduced to Scottish Parliament by the Cabinet Secretary for Social Justice on November 7th 2023.

Our response to the Scottish Parliament's Equality, Human Rights and Civil Justice Committee's stage one call for views

As is the case for all bills that pass through Scottish Parliament, this Bill has been assigned to a cross-party committee (in this case the Equality, Human Rights and Civil Justice Committee), who will collect evidence and scrutinise the Bill before producing a report outlining whether they recommend that the whole Parliament should support the principle of the Bill, as well as any changes they believe are needed to improve the Bill. You can read more about the parliamentary process on our legislation page here.

From the to 9th the 29th January 2024, the Equality, Human Rights and Civil Justice Committee held a call for views on the Bill, where members of the public and organisations could tell the Committee how they felt about the Bill, whether they supported it or not, and if they had issues with it or suggestions for improvements.

56 individuals and organisations submitted responses to the call for views, and their responses can be found here. Before reading the responses, please be aware that while most of the responses were supportive of trans inclusion or generally neutral on the Bill, the responses do contain a wide range of views on trans equality.

You can view our submission in full here, but in summary, we said that we support the new Bill because it simply confirms on paper the change to the 2018 Act that the Court of Session made in 2022. The court ruled that a fully trans-inclusive definition of woman was beyond the devolved powers of the Scottish Parliament – the court did not rule that the inclusive definition was wrong.

To explain this, we said that:

  • We supported the original Gender Representation on Public Boards (Scotland) Act 2018. We think that improving representation and equality for women is vitally important, and were pleased that the Scottish Parliament chose to pass a law to improve women’s representation on Scottish Public Boards.
  • We supported the Scottish Parliament’s definition of woman in the 2018 Act, as we believe that trans women should be counted as women when it comes to improving gender equality. We were disappointed when the Court of Session ruled that including this definition in the Act was outwith the devolved powers of the Scottish Parliament.
  • We understand why the new Bill has been introduced. It simply confirms in the wording of the 2018 Act the change that has already been made by that Court of Session ruling in February 2022.
  • The court ruled that because equal opportunities law is reserved to the UK Parliament, it was outside the competence of the Scottish Parliament to include a different definition of the word woman in the 2018 Act to the definition of the word woman in the Equality Act 2010.
  • The court did not rule on whether the Scottish Parliament’s original choice to include trans women without gender recognition certificates within the law was the right or wrong thing to do. Instead, it ruled that the Scottish Parliament was not able to do it within their legislative competence.
  • We agree with the Scottish Government’s Equality Impact Assessment of the new Bill that the Bill will have no negative impact on trans people – it was the court ruling in February 2022 that changed the law, not this Bill. We welcome the Scottish Government’s statement in that Equality Impact Assessment where they say:

“The trans community may perceive the Bill to have a negative impact on their community, as they could mistakenly view it as a step backwards from their work to achieve equality or a sign that the Scottish Government is changing its position on support for trans rights. However any substantive impact on the operation of the law is as a result of the Court’s decisions, not this Bill which simply clears up confusing wording. Officials are engaging with LGBTQI+ stakeholders to reassure them of the Scottish Government’s ongoing commitment to achieving greater equality. (emphasis added)

  • We therefore support the Bill.

Want to know more?

You can read more about the Bill in this Scotsman column we wrote when the Bill was first introduced in November: https://www.scotsman.com/news/opinion/columnists/inaccurate-commentary-can-leave-everyone-feeling-confused-on-trans-rights-vic-valentine-4403746

You can find the Bill itself, and the related documents, here: https://www.parliament.scot/bills-and-laws/bills/gender-representation-on-public-boards-amendment-scotland-bill/overview

You can read the Scottish Parliament’s SPICe briefing on the Bill here: https://bprcdn.parliament.scot/published/2024/2/1/a7eae3c4-71eb-4d56-b6bf-836715c99f68/SB%2024-06.pdf

You can find a longer explanation about a separate court ruling about the guidance produced by the Scottish Government relating to the Gender Representation on Public Boards (Scotland) Act 2018, and what it does (and more importantly doesn’t!) mean, for trans people’s legal rights here: https://www.scottishtrans.org/the-decision-of-the-court-of-session-on-for-women-scotland-vs-scottish-ministers/

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