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Scottish Trans joins legal challenge to protect gender equality on public authority boards

Equality charity says attempt to overturn widely-supported 2018 legislation is ‘misguided’, and will have a ‘chilling effect’ on trans people in Scotland.

Scottish Trans (ST), part of the LGBTI human rights charity Equality Network, have been given permission to intervene in a legal case which is seeking to throw out legislation passed two years ago, ensuring greater involvement of women in public life in Scotland.

The Gender Representation on Public Boards (Scotland) Act 2018, guarantees women 50% of places on public boards, and was welcomed by all parties as step towards equality.

The Act is working well, but a group called ‘For Women Scotland’ (FWS) wants it to be scrapped, because they object to the fact it allows trans women to be included in that 50%. Trans women make up an estimated 0.2% of the Scottish population. According to FWS’ crowdfunding page, it has raised over £60,000 to bring the challenge against Holyrood in Scotland’s supreme civil court. Scottish Trans is also paying for all fees related to the case out of fundraising donations.

The case is due to be heard by the Court of Session on 7 January 2021.

Senior judges have now granted Scottish Trans permission to act as third-party ‘interveners’, which means we can submit evidence to the court about why we believe changing the legislation would be an unnecessary setback to trans equality and inclusion.

ST believes FWS’ actions are damaging to the interests of all women, which is why we applied for permission to intervene in the case. We believe the law that FWS seeks to overturn is fair, inclusive, and working well, and we support the Scottish government’s attempts to increase diversity on public boards. Trans women are virtually invisible in our public life, and we are against putting greater obstacles in their way.

Vic Valentine, Scottish Trans manager says:

“Trans people deserve the same dignity and privacy as everyone else. Why should we have to reveal intimate details about our history and private life, before we can, say, sit on the board for the Accounts Commission or the National Library? This misguided case will have a chilling effect on the willingness of trans people to take part in public life. It’s telling us that we are not welcome or wanted.

“This law was passed in 2018, and has been working well, encouraging more women into public life. If this case succeeds and the requirement for 50% of board members to be women is thrown out, it will set back the rights of all women to take part in public life in Scotland – not just trans women. We believe women should have their voices heard by public bodies, and trans women should not be singled out to be excluded.”

ST is represented pro bono by the Scottish Just Law Centre, part of the human rights legal charity JustRight Scotland; Dorothy Bain QC is instructed as advocate (see below).

Jen Ang, director at JustRight Scotland says:

“We are supporting Scottish Trans to intervene in this case as part of our work to ensure that people who are affected by potential changes to the law have the chance to exercise their legal rights, including having a fair opportunity to explain to the judge how that change might impact them. As an organisation, we aim to help people find ways of participating in legal processes where the outcome of a court decision directly affects them and those they support.’

Notes

1) About the case:

For Women Scotland is challenging the Gender Representation on Public Boards (Scotland) Act 2018 on two grounds – both of which are rejected by ST’s legal team.
FWS claims the Act:
i) is “outside the legislative competency of the Scottish Parliament under the Scotland Act 1998” [which introduced devolution];
ii) is “in contravention of the Scottish Ministers’ duties under equality legislation” [Equality Act 2010].

Our legal team will be representing Scottish Trans in an intervention in this case, putting forward arguments to counter this challenge, as well as evidence about the positive impact of the Gender Representation on Public Boards (Scotland) Act 2018, and the potential harmful consequences to trans inclusion and equalities if the whole Act, or aspects of it, are struck down.

2) About the Gender Representation on Public Board (Scotland) Act 2018:

The Act was passed in 2018 with cross-party support in order to ‘address historic and persistent underrepresentation of women in public life’. It sets a ‘gender representation objective’ for boards of named (see below) Scottish public authorities to have 50% women as non-executive board members. The public authorities covered by the Act are listed, here: https://www.gov.scot/publications/gender-representation-public-boards-scotland-act-2018-statutory-guidance/pages/10/

3) About Scottish Trans:

We are part of the Equality Network, and work to improve gender identity and gender reassignment equality, rights, and inclusion in Scotland. We have three full time staff and provide training, advice, and support to organisations, and trans people and their families. https://www.scottishtrans.org

4) About Scottish Just Law Centre:

The Scottish Just Law Centre at JustRight Scotland is funded by The Baring Foundation and works to reduce discrimination and disadvantage by helping people use equalities and human rights law as an effective tool for social change. https://www.justrightscotland.org.uk

5) About Dorothy Bain QC:

Dorothy is based at Ampersand Advocates and has extensive experience in civil and criminal law. In 2009, she became the first woman to be appointed as Principal Advocate Depute. She is particularly known for her work in human rights; is on the Equality & Human Rights Commission’s A-list counsel panel; and has appeared before the UK Supreme Court and European Court of Human Rights. https://ampersandadvocates.com/people/dorothy-bain-qc/