Shifting sands on the definition of ‘woman’ in Scots law: the journey of the Gender Representation on Public Boards Act from consultation to implementation

That women remain under-represented in public life is largely uncontested. Campaigns to improve the representation of women enjoy support across the political spectrum, even if there are differences in opinion on how that might be achieved.

In early 2018, the Scottish Parliament passed the Gender Representation on Public Boards Act, aimed at improving the representation of women on the boards of Scottish public authorities. Speaking during the Stage 1 debate, Cabinet Secretary Angela Constance MSP said:

“Women’s voices need to be heard and they need to be part of the decisions that are made in Scotland’s boardrooms. Scotland’s public bodies, colleges and universities are responsible for significant sums of public money, and they oversee and deliver public services that touch all aspects of people’s lives.”

A majority of MSPs voted through the legislation. Only Conservative members voted against, citing an objection to the mechanism used, statutory targets, rather than the broader principle of achieving more equal representation for women.

Drawing on the protected characteristics of both ‘sex’ and a modified version of ‘gender reassignment’ as set out in the Equality Act 2010, Section 2 of the GRPB Act 2018 states that the definition of ‘woman’

“includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person is living as a woman and is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of becoming female”. [our emphasis]

This expanded definition of ‘woman’ was introduced at Stage 2 of the legislative process, following representations from the Scottish Trans Alliance at Stage 1. It brings within scope some people who have not changed their legal sex to ‘female’ using a Gender Recognition Certificate (GRC), and excludes some people who remain female in law (those transitioning to live as men, but who do not have a GRC).

In the summer of 2019, the Scottish Government consulted on the implementation of the Act. The consultation document sought views on the draft regulations setting out the arrangements for reporting on progress under the Act, as well as the draft statutory guidance on the operation of the Act.

The definition of ‘woman’ is expanded on in the draft guidance, which sets out examples of what would be regarded as ‘evidence that the person was continuously living as a woman’, although an appointing person is not required to ask a candidate to prove that they meet the definition of woman in the Act. As shown below, the suggested examples are all linguistic in nature:

“always using female pronouns; using a female name on official documents such as a driving licence or passport, or on utility bills or bank accounts; describing themselves and being described by others in written or other communication using female language.”

Earlier this month, the Government published the analysis of responses to the consultation. The contract issued for the consultation analysis shows the results were due to be provided to the Government at the end of October 2019, suggesting that it has not rushed to publish.

The consultation received 310 responses. The majority of these “focused on concerns raised regarding terminology and definitions used in the Act. More specifically, the term ‘gender’ and the definition of ‘woman’”.

Summarising the comments received on the draft guidance, the analysis noted that the concerns of most respondents centred on the fact that “the definition used has extended the legal definition of woman far beyond the Equality Act” (which defines a ‘woman’ as a ‘female of any age’). Many respondents argued that the definition confused different protected characteristics, to the disadvantage of women, and would undermine the value of the Act.

It is relevant, given these criticisms, that the Government originally suggested that its 50% “gender representation objective” would be for those who are “female or who identify as female”, but after a consultation in 2017 changed this to “women” prior to introduction. The Bill’s Policy Memorandum explained: “This step was taken to ensure that the Bill reflects the protected characteristic of sex in the Equality Act 2010”. That change strongly implies that the original formulation was recognised within government as not covering the same group as “women”, as it is used in the 2010 Act, and that consistency with the Act was at that point seen as important.

The submission by feminist advocacy group Engender supported the revised definition in the final Act, stating that “to define women so as to exclude trans women with or without a GRC would risk disclosing an individual’s trans status”. Conversely, grassroots feminist groups Woman’s Place UK and For Women Scotland both highlighted the incongruence between the definitions contained in the 2018 Act and the Equality Act 2010, stating that the legislation should not be brought into force as currently drafted. For Women Scotland noted that the definition of ‘woman’ in the Act “enables a situation whereby someone who is legally male, who fits the criteria for ‘woman’ can legitimately be considered for the Board, but someone who is legally female does not.”

The debate, of course, goes far wider than the Public Boards Act. Prompted by proposed reforms of the Gender Recognition Act (GRA) 2004 from both the Scottish and UK Governments, defining who is a woman in law and policy has been the subject of intense debate in recent years. While both governments have paused their reform plans for the immediate future, all the main political parties support amending the GRA, and have at some point advocated that individuals should be able to change their legal sex by making a statutory declaration (often referred to as ‘self-ID’). For instance, speaking at an event on the political representation of women in 2018, Liberal Democrat President Sally Brinton stated that she would be happy with a ‘gender-balanced’ parliament made up of 50% men and 50% trans women.

Despite its earlier interest in consistency with the Equality Act 2010, the concerns raised about the definitions used in the GRPB Act 2018 have not caused the Scottish Government to pause. Under regulations made on 1 April, the Act will come fully into force at the end of next month. The planned guidance does not appear to have been issued yet, and the Scottish Government has not commented on the points made in the consultation analysis.

A shorter version of this blog appeared in Scottish Legal News on 21 April 2020.