Judges order Scottish ministers’ responses to ‘illegal’ legal change to definition of ‘woman’

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The JUDGEs called on ministers to explain why they failed to enforce UK equality laws while ensuring a change in the definition of women in Scotland to include men who have changed their gender.

It comes as the Scottish government has challenged its decision to include trans women in a new law aimed at increasing the number of women on Scottish public councils.

The Herald can reveal that a row erupted over a clause included in controversial laws aimed at improving women’s representation on Scottish public authority boards, which included an “opt-out” clause which it claims ministers, aimed to circumvent any violation of UK equality laws.

This has sparked a new argument about what Scotland has delegated powers to do and what is in store for the UK.

It appeared that the Equality and Human Rights Commission in Scotland had raised concerns early on that the law as it was under consideration by the Scottish Parliament may not fall within the scope of the law. – not to be devolved skills.

And he asked why he was prioritizing women when there is evidence that other groups sharing protected characteristics are also under-represented such as people with disabilities.

The participation of people with disabilities in public appointments was 11.8% in 2015/16, compared to an average of 19.6% of the Scottish population estimated to be with a disability. The participation of people with disabilities fell to 3.5% between 2014 and 2015, the feminist group For Women Scotland accused ministers of illegally changing the definition of women.

He says the rights of ‘biological’ women have been undermined and questioned what he saw as the Scottish Government’s view that ‘men who identify as women are women’, and that this will be the basis of future policy.

The challenge concerns the legality of the 2018 Gender Representation in Public Councils Act (GRPB) and what she called the redefinition of the word woman to include people who had not changed their legal sex to “female.” »Using a gender recognition certificate (GRC).

GRPB’s aim was to introduce ‘affirmative action’ to improve gender representation on Scottish Public Authority (SPA) Boards by stating that 50% of non-executive members should be women.

But concerns have arisen that it flies in the face of UK equality laws which only allow affirmative action in very limited circumstances.

In GRPB, the definition of a ‘woman’ has been changed from an original wording of ‘a woman of any age’ – the UK Equality Act 2010 definition, to include a ‘person who has protected characteristic of sex reassignment ”.

And it emerged that the judges raised questions about Section 11 of the GRPB Act which sought to “de-enforce” parts of the UK Equality Act 2010 – which protects women from gender discrimination and which limits positive discrimination.

The legal challenge, which is before the Inner House of the Court of Session – Scotland’s highest court of civil appeals – has led judges to demand answers on why ministers have chosen to ‘de-apply’ UK law.

Ruth Crawford QC on behalf of the Scottish Ministers admitted that Article 11 was established “to avoid overlap” with the UK Equality Act and to prevent actions taken under the GRPB from becoming “illegal”.

Lord Malcolm underlined: “The argument against is that the way it was done allowed unlawful discrimination.”

After being further questioned as to why the equality law was “removed”, Ms Crawford said she should follow instructions.

Lord Pentland said: “This is a question, Miss Crawford, which must have been the subject of careful consideration in the Scottish Government. And I think it is important that the court understand what the reasoning of the government.”

But Ms Crawford later said she could not ‘get things done’ except to indicate that it was not an issue which had been considered by the Scottish Parliament during the debates.

Policy expert Lucy Hunter Blackburn told ministers at the time in a brief that the changes to the GRPB were a “late amendment” and had received “no consultation and very limited parliamentary scrutiny”.

Lord Malcolm and Lord Pentland both lobbied for answers from the QC.

Lord Pentland said: “There must have been instructions given to the Parliamentary Counsel to draft the clauses and the instructions must have reflected a policy.”

After the QC again said it could not come up with any further explanation, Lord Malcolm said he wanted to make a commitment that the answers would be “sought and provided”.

Ms Crawford said: “He will be wanted and provided with the warning ‘if there is anything’.”

For Women Scotland, ministers acted outside their legislative powers under the Scotland Act 1998 and in breach of their obligations under equality law.

And he said the action has already been cited by those “who hope to roll back women’s rights.”

Ministers defending the challenge say that an amended Scotland Act of 2016 allows the Scottish Parliament to legislate on ‘equal opportunities in relation to the inclusion of people with protected characteristics in non-executive positions in Scottish public authority boards of directors with mixed or unreserved functions. functions”.

Herald Scotland:

People with a gender recognition certificate (GRC) can legally change their gender.

But critics say ministers have gone further with the GRPB bill because “woman” now also includes those who do not have a GRC.

The law states that “woman” includes those who have “made the decision to undergo a process for the purpose of becoming a woman”, although this “would not require the person to dress, have an appearance or to behave in a particular way ”.

He continues: “One would expect there to be evidence that the person lived continuously as a woman – always using female pronouns, using a female name on official documents, describing herself and being described by others. others using feminine language, “adding the legislation does not require” that a nominator ask a candidate to prove whether he or she meets the definition of woman in the law.

It is understood that the change was implemented after an amendment by Scottish Labor MSP Mary Fee as the original bill progressed through the Scottish Parliament.

The then Equality Secretary Angela Constance accepted the amendment because “we want the bill to break down barriers, not create them”.

A panel of senior judges – Lady Dorrian, Lord Malcolm and Lord Pentland will review their decision in the case.


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