Home > News > Trans equality charity welcome Court of Session Decision on transgender rights

23 March 2021   |    News

Trans equality charity welcome Court of Session Decision on transgender rights

Lady Wise held in the Outer House of the Court of Session today that the Scottish Government acted within its lawful powers by including all transgender women who are living as women, including those without a Gender Recognition Certificate, within an equal opportunities measure which aims to ensure that 50% of non-executive public board members are women.

Her opinion finds that the Scottish Government acted lawfully under a specific power to make equal opportunities measures to increase representation on Scottish public boards, and for this reason, the Scottish Government has not breached the Equality Act 2010.

She also considers and dismisses other challenges to the legislation, making it clear that both EU law on sex discrimination and the International Convention for the Elimination of all Forms of Discrimination Against Women (CEDAW) apply to, and are inclusive of all women, including transgender women.

The Gender Representation on Public Boards (Scotland) Act 2018 passed over two years ago, ensuring greater involvement of women in public life in Scotland. The Act is working well, but a group called ‘For Women Scotland’ (FWS) had applied for a Judicial Review to have the Act scrapped, because they objected to the fact it allows trans women to be included in the aim that 50% of public board members should be women. Trans women make up an estimated 0.2% of the Scottish population.

The case was heard by the Court of Session on 7th and 8th January 2021.

Scottish Trans were granted permission to intervene in the case. Scottish Trans provided the Court with a perspective of how progressive a step the express inclusion of transgender women was, given their previous invisibility within public life.

The court commented favourably in relation to Scottish Trans’ “detailed and helpful written intervention that addressed some of the equal opportunities arguments from the perspective of transgender people.”

Vic Valentine, Scottish Trans manager says:

“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.

 We believe women should have their voices heard and be represented on Public Boards, and trans women should not be singled out to be excluded. We are pleased that this outcome means that all women, including transgender women, will continue to have that representation guaranteed.”

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

Jen Ang, Director at JustRight Scotland says:

“We are pleased to have been able to support Scottish Trans to intervene in this case and that the written intervention was regarded as having provided helpful evidence to the court.  The Scottish Just Law Centre was founded in order to ensure that third sector organisations like Scottish Trans have a fair opportunity to participate in legal processes where the outcome of a court decision directly affects them and those they support. We hope this is the first of many opportunities we have to support individuals and organisations to engage in important cases raising issues of discrimination and inequality.’

For more information, contact:

Vic Valentine, Scottish Trans: vic@equality-network.org

Jen Ang, JustRight Scotland: press@justrightscotland.org.uk

Notes for editors

1) About the case:

For Women Scotland challenged the Gender Representation on Public Boards (Scotland) Act 2018 on two grounds – both of which were rejected by Lady Wise.

FWS claimed the Act:

  1. i) is “outside the legislative competency of the Scottish Parliament under the Scotland Act 1998” [which introduced devolution];
  2. ii) is “in contravention of the Scottish Ministers’ duties under equality legislation” [Equality Act 2010].

Our legal team representing Scottish Trans in the intervention in this case, put 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, were struck down.

Read the judgement at: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021csoh031.pdf

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/




Join our eNewsletter

30 Bernard Street
Edinburgh EH6 6PR

Scottish Trans is part of the Equality Network