Equal opportunities in relation to the Scottish functions of any Scottish public authority or cross-border public authority, other than any function that relates to the inclusion of persons in nonexecutive posts on boards of Scottish public authorities with mixed functions or no reserved functions. …”
17. The Scottish Parliament passed the 2018 Act to provide for positive action measures to be taken in relation to the appointment of women to non-executive posts on boards of certain Scottish public authorities. The 2018 Act sets out a gender representation objective for a public board which is that “it has 50% of non-executive members who are women” (section 1(1)). The attainment of this objective is carefully circumscribed by section 4 which makes clear that preference can be given to a woman in order to further that objective only where there is no best candidate and only if the appointment of an equally qualified male candidate cannot be justified on the basis of his particular characteristics or situation. Section 2 of the 2018 Act defined “woman” as including:
“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.”
18. In its first judicial review the appellant challenged the statutory definition of “woman” in section 2 of the 2018 Act and paragraphs of the statutory guidance dated June 2020 which discussed that definition and explained that a trans woman had to meet the three criteria in section 2: to have the characteristic of gender reassignment, be living as a woman, and be proposing to undergo, be undergoing, or have undergone a process (or part of a process) as set out in the section 2 definition. The appellant was successful on appeal before the Second Division of the Inner House of the Court of Session (For Women Scotland Ltd v Lord Advocate [2022] CSIH 4; 2022 SC 150), which in para 40 of its judgment dated 18 February 2022 held that “transgender women” is not a protected characteristic under the EA 2010 and that the definition of “woman” adopted in the 2018 Act “impinges on the nature of protected characteristics which is a reserved matter”. By interlocutor dated 22 March 2022 the Second Division declared that the definition of “woman” in section 2 of the 2018 Act was outside the legislative competence of the Scottish Parliament. In other words, because the definition of “woman” in section 2 of the 2018 Act included trans women as defined, it went beyond the scope of the exception permitted by section L2 of Schedule 5 to the Scotland Act; it therefore purported to legislate in respect of a reserved matter, namely equal opportunities, and so was outside the competence of the Scottish Parliament.
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