For Women Scotland is appealing a prior court decision concerning the legal definition of a “woman.” Earlier this year, Judge Lady Haldane ruled that “sex” was not simply limited to “biological or birth sex.” However, the group argues that varying meanings for “sex” are not practical, and the decision is unworkable. The case is the fourth such instance regarding this issue that has gone before the Court of Session.
The hearing on Wednesday centers around the Gender Representation on Public Boards Act. This legislation seeks to ensure gender balance on public sector boards. It originally stated that quotas should include individuals living as a woman who have gone, or intend to go, through the gender recognition process. For Women Scotland had argued that ministers broke with the Equality Act’s definitions, which separate protections based on sex and gender reassignment.
The group previously lost the initial judicial review but won when Lady Dorrian ruled that the bill “conflates and confuses two separate and distinct protected characteristics.” The Scottish government subsequently changed the bill’s guidance notes to state that it includes both individuals defined by the Equality Act as women and individuals with a gender recognition certificate under the Gender Recognition Act 2004.
For Women Scotland initially argued that the government was trying to redefine “woman” in their referencing of sex, which the group said was still confusing protected characteristics. Lady Haldane rejected this argument and concluded that the statutory guidance was lawful. Now, the group is appealing that decision based on five arguments, with a hearing beginning on Wednesday. One argument is that the definition of “woman” under the Equality Act “excludes biological males,” which should have been “highly persuasive.” The group also argues that varying meanings for “sex” are impractical.
In response to Lady Haldane’s ruling last year, the Scottish government stated that it was pleased with the decision. Equality Network and Scottish Trans also praised the ruling, stating that it confirmed “the position we and many others have understood it to be for well over a decade.” They further clarified that the ruling did not affect exceptions in the Equality Act, which would still permit single-sex services to exclude trans individuals or treat them less favorably if a “proportionate means to a legitimate aim” was involved
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