Stephen Daisley Stephen Daisley

The legal battle over how Scots define ‘woman’

The law on gender is a mess and could either be about to get much clearer or messier still. The Scottish government is being taken to court by feminist campaigners over its plans to increase women’s representation on public boards. That’s not the sort of thing feminist campaigners typically take governments to court over so you might have already guessed what’s coming next. For Women Scotland (FWS) believes the SNP is using the Gender Representation on Public Boards Act 2018 (GRPBA) to change the law on gender recognition by stealth. That’s already too many acronyms, which is always a sure sign that a given law is a bad idea.

The GRPBA is, on its face, standard feminist fare: a law to correct what is seen as an insufficient number of women on public boards in Scotland. The problem comes, as it seems to do with extraordinary regularity these days, with how the Scottish government is choosing to define ‘women’. The statutory guidance says that transwomen without a gender recognition certificate will be considered women provided they meet three conditions:

  1. They enjoy the protected characteristic of ‘gender reassignment’ under the Equality Act 2010;
  2. They are proposing to undergo or have already undergone a process to change their sex from male to female, and;
  3. They are living as women.

For gender-critical women and for trans people, this is their lives and their rights

Where it gets more complicated is a section in the guidance that states: ‘The Act does not require an appointing person to ask a candidate to prove that they meet the definition of woman in the Act.’ This is what FWS suspects is a back-door means of making legal changes that can’t be done openly without bringing too heavy a political price.

Last month, I warned that the Scottish government could find itself in court as a result of all this.

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