Definition of woman will include trans people to increase equality The Times 24.03.21

The original article is here.

The definition of the term “woman” is to be broadened to include transgender people in legislation to increase female representation on public boards after a failed legal bid to block the changes.

The campaign group For Women Scotland (FWS) was unable to convince a judge that the Scottish government’s plans would breach equalities laws, which define sex as being either male or female, or a group of people such as men or boys, or women or girls.

The legislation, passed two years ago, used the term “woman” to represent those who were born women and trans women, or those who “live as women”, which FWS said was legally incompetent. Scottish ministers believe the legislation needs to be amended to ensure more equal representation of transgender people on public boards.

Yesterday the judge, Lady Wise, concluded that the Scottish government was legally permitted to pass legislation designed to increase the boardroom representation of transgender people.

FWS said it was disappointed by the ruling and would be consulting its lawyers. “At a time where the endemic nature of the discrimination and violence women experience on the basis of sex is more apparent than ever, it will come as a shock to many women in Scotland that the Scottish government can redefine what it means to be a woman in law, so that it is little more than a name on a utilities bill,” it said.

“We will be following with interest what candidates and parties have to say in the upcoming election campaign, and they can certainly expect to be asked whether they support women’s rights and the use of single-sex exemptions under the Equality Act 2010, ensuring that women have the right to single-sex spaces such as changing rooms, refuges and rape crisis counselling.”

Lady Wise stressed that her judgment applied only to the proposed amendments to the 2018 Equality Act and not to the wider policy issues of transgender rights. “It should be understood at the outset that the case does not form part of the policy debate about transgender rights, a highly contentious policy issue to which this decision cannot properly contribute,” she said.

“At its core, this litigation is concerned with whether certain statutory provisions were beyond the legislative competence of the Scottish parliament. While I record certain statements that were made about Scottish ministers’ policy or position on transgender rights, that matter was at best tangential to the central dispute and has had no bearing on the decision that I have made.”

The petition brought by FWS maintained that equal opportunities law was reserved to Westminster and could not be altered by the Scottish parliament.

It claimed that the government failed to assess the impact of applying the new law “on the need to advance equality between women and men, or consider the need to foster good relations”.

The group decided to take legal action after Scottish ministers informed them earlier this year that it believed it was able to amend the legislation as it came “within legislative and devolved competence”.

At proceedings earlier this year Aidan O’Neill QC, counsel for FWS, said the Equality Act contained “protected characteristics”. He said that one of these characteristics protects people against sex discrimination. The Equality Act defines sex as being either male or female, or a group of people such as men or boys, or women or girls.

O’Neill also said that the case law on sex discrimination defined women on the basis of unique biological features — such as fertility. He said that another protected characteristic under the act applies to transgender people who face discrimination.

O’Neill said the Scottish government’s proposals to help transgender people gain greater representation on public boards undermined the rights women had under the Equality Act.

Lawyers for the Scottish government denied that the Holyrood administration was acting unlawfully.

Ruth Crawford QC said the law allowed the Scottish government to legislate on the matter. She said the proposed redefinition would mean that the meaning of woman would be broadened. It would cease to be a “female of any age” and would include transgender women, who have the protected characteristic of gender reassignment under the Equality Act 2010.

Lady Wise agreed with the submissions made by the Scottish government’s legal team in her judgment yesterday.

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