Following the recent decision in Forstater v CGD Europe - where it was held that gender-critical beliefs are capable of protection under the Equality Act 2010 – we consider the related decision in a case involving For Women Scotland (FWS) of the Outer House, Court of Session.

FWS challenged the Scottish Ministers over whether the definition of "woman" in the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act) was within the legislative competence of the Scottish Parliament. Lady Wise rejected all challenges made by FWS and concluded that the 2018 Act was within the legislative competence of the Scottish Parliament. FWS is appealing the decision.

Gender representation on public authority boards in Scotland

The 2018 Act is intended to improve gender representation on the boards of Scottish public authorities (SPAs). It sets out the 'gender representation objective' (GRO) that 50% of non-executive members of all SPA boards should be women. Where there are multiple applicants to a board that has not yet met the GRO, who are believed to be equally qualified for the role, the appointing person must give preference to one of those candidates if they are a woman.

The definition of 'woman' in section 2 of the 2018 Act includes a person who has the protected characteristic of gender reassignment under the Equality Act 2010 (the EA 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".

FWS brought five grounds of challenge:

  1. the relevant provisions of the 2018 Act relate to reserved matters (specifically paragraph L2: equal opportunities) of Schedule 5 of the Scotland Act 1998);
  2. the 2018 Act contravened EU law as it relates to equal opportunities;
  3. by treating biological and transgendered women in the same way, the 2018 Act went beyond the limited correction of previous discrimination permitted by the European Convention on Human Rights (ECHR);
  4. the 2018 Act contravened the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW); and
  5. by bringing the provisions into force and producing guidance on them, the Scottish Government had contravened the public sector equality duty (PSED), in section 149 of the EA 2010.

Reserved matters

The reserved matters arguments centred around the 'equal opportunities' reservation, found in schedule 5 of the Scotland Act 1998. However, an exception to this was inserted by the Scotland Act 2016, permitting the Scottish Parliament to legislate on: "Equal opportunities so far as relating to the inclusion of persons with protected characteristics in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions".

FWS' argument centred around the definition of 'woman' in the 2018 Act. It argued that in equalities legislation the term 'woman' meant only biological women and the Scottish Parliament had no power to alter that because it was a reserved matter.

Lady Wise dismissed this, concluding that the 2018 Act did not redefine 'woman' for any purpose other than to include transgender women as a category who could benefit from its provision, and that this was within the scope of exceptions to the reservation of equal opportunities.

EU law

FWS argued that the provisions of the 2018 Act were contrary to the Equal Treatment Directive (76/207/EEC) and that EU law provided for limited circumstances in which positive action measures could be taken. Such measures required evidence of the relevant disadvantage and that the intervention was proportionate. FWS argued that there was no such evidence or proportionality assessment, specifically citing a lack of evidence of disadvantage to transgender women being appointed to public boards.

The court was not persuaded, concluding that there is sufficient authority in EU law that transgender people should be included in the sex to which they have been reassigned, for the purpose of equal treatment issues. Therefore, the inclusion of transgender women within the scope of the 2018 Act's positive action in relation to women on public boards was consistent with EU law.

ECHR

FWS referred to previous ECHR case law, asserting that only limited correction of previous discrimination was permitted and that it had to be proportionate. FWS argued that assumptions had been made that the workplace experiences of transgender women were the same as those of biological women, but those assumptions could not be a basis for finding that the measure was proportionate.

The court rejected this argument on the grounds that the 2018 Act should be capable of being operated compatibly with the Article 8 right to private and family life (without prejudice to the facts of individual cases), and that for the purposes of Article 14 (non-discrimination in relation to the other rights) biological women and transgender women can be regarded as being in analogous or relevantly similar situations for the purposes of the measure.

CEDAW

As an international convention not incorporated into Scots law, FWS accepted that contravention of CEDAW would not put the provisions of the 2018 Act outside legislative competence. However, they still requested a bare declarator from the court that the provisions went against CEDAW, arguing that its provisions were specifically for the protection of biological women.

The court rejected this request, stating that a declarator over compliance with a convention not yet incorporated into Scots law would not be appropriate where there would be no consequences. Furthermore, when invited to use CEDAW as an interpretative aid, the court found that there was no inconsistency with the 2018 Act. Reference was specifically made to a 2019 General Recommendation under CEDAW, which was not directed only at protecting women whose biological sex is female and acknowledged the 2018 Act in a list of positive efforts made towards CEDAW's aims.

PSED

The PSED is a duty placed on public authorities, when exercising their functions, to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and those who do not. FWS argued that the Scottish Government failed in its duty by not properly assessing the differences between biological women and transgender women, nor the possible negative effects that a policy of treating them the same would have. FWS argued that a formal equality impact assessment (EQIA) was required under regulation 5 of the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (the 2012 Regulations).

The court rejected the Scottish Government's argument that the 2012 Regulations could only be enforced by a notice issued by the Equality and Human Rights Commission, ruling that the issue was justiciable by the court.

Counsel for the Scottish Government had initially stated that the Government's general policy was that "transwomen are women". However, she accepted that there had been no announcement of such a policy, and later explained that it was a statement of the Government's view rather than a policy. In its defence, the Government produced the EQIA carried out on the 2018 Act before it was passed. The EQIA had identified concerns that the Bill's sole focus on the protected characteristic of sex was too narrow. Following the EQIA the Bill was amended to define women as including transgender women. The court was satisfied that this change did not constitute a change in policy, which would have required a new EQIA, on the basis that the 2018 Act was part of an existing policy of advancing equal opportunities including the narrower aim of increasing representation of those with protected characteristics on Scottish public boards. Therefore, a new EQIA was not required and the PSED was not breached.

Likely consequences of the case

There are three points worth noting.

  • The FWS decision is an early opportunity for the Scottish courts to grapple with whether a piece of Scottish legislation was consistent with the proper understanding of an exception (the Scottish public boards exception) on a matter otherwise reserved to the UK Parliament (equal opportunities). While Lady Wise's judgment clearly indicated that the matter must be determined by reference to the specific parameters of the Scottish public boards' exception, those concerned with interpreting exceptions to reserved matters will no doubt make the FWS case a first point of reference.
  • The Scottish Government intends to introduce a new Human Rights Bill incorporating CEDAW, the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Rights of Persons with Disabilities. Should this legislation come into force, we can expect more argument in the Scottish courts about those international conventions; the specifics of what they do and do not prohibit, and the people who can rely on them.
  • The FWS decision provides some clarity on the 2012 Regulations; it confirms that questions relating to EQIAs do fall within the court's supervisory jurisdiction and it provides some guidance on when a change in approach does and does not require a new EQIA.

Contributor

Charles Livingstone

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