The Scottish Government introduced its Gender Representation on Public Boards Act in March last year to “improve the representation of women on the boards of Scottish public authorities” and aim to ensure that at least 50 per cent of non-executive roles are filled by women.
However in the latest twist in the row over women’s rights and those of trans women, a new consultation on how the legislation should work in practice, has seen concerns raised about the government’s definition of the word “woman”.
In the new Bill, the definition was changed from “a female of any age” – the definition in the UK Equality Act of 2010, which protects women against sex discrimination – to include a “person who has the protected characteristic of gender reassignment”.
People who hold a Gender Recognition Certificate (GRC) have been legally able to change their gender. But the Scottish Government has, say its critics, gone further with the GRPB Bill as “woman” also now includes those who do not have a GRC.
The legislation states that “woman” includes those who have “taken the decision to undergo a process for the purpose of becoming female” though this would “not require the person to dress, look or behave in any particular way”.
It goes on: “It would be expected there would be evidence that the person was living continuously as a woman – always using female pronouns, using a female name on official documents, describing themselves and being described by others using female language” adding the legislation does “not require an appointing person to ask a candidate to prove whether they meet the definition of woman in the Act”.
The change was implemented after an amendment by Scottish Labour MSP Mary Fee as the original Bill was progressing through the Scottish Parliament.
The then equalities secretary, Angela Constance, accepted the amendment because “we want the Bill to break down barriers and not create them”. The Scottish Government insists that despite the change, the legislation still complies with the Equality Act and that the change “does not have the effect of creating a new legal definition of woman in any other context”.
But in their responses to the consultation, which closed earlier this week, two new organisations, Woman’s Place UK and For Women Scotland, as well as a former top civil servant, Lucy Hunter Blackburn, said the government’s definition was inaccurate.
Their consultation responses come four months after 15 SNP politicians wrote an open letter warning against a “rush” to alter legislation which could change the definition of male and female.
In its response, WPUK said the “fundamental belief” at the root of all sex discrimination legislation is that “women are discriminated against and disadvantaged on the ground of their sex... that the physical and social consequences of being born and living with a female body are so significant that women deserve specific protections in law.
“This premise was carried forward to the Equality Act 2010, currently the legal cornerstone of women’s existing rights to fair treatment, which defines a woman as ‘a female of any age’.
“It concerns us, therefore, that the Gender Representation on Public Boards (Scotland) Act 2018 does not adhere to the same definition of ‘woman’. Instead it opens up the definition of ‘woman’ to include those with the protected characteristic of gender reassignment.”
Similar concerns were raised by For Women Scotland, but the organisation also suggested that using the wrong definition could see natal women unable to be legitimately considered for board positions.
Its submission states that the Scottish Government’s definition has “reduced womanhood to a vaguely stated intention to undergo a process for the purpose of becoming female”. They add this “enables a situation whereby someone who is legally male, who fits the criteria for ‘woman’ can legitimately be considered for the Board, but someone who is legally female does not.”
The authors say that widening the definition of woman “effectively, renders this Act toothless in effecting the type of representation it sets out to achieve. Worse, it may mask the under-representation of females.”
According to the government’s Equality Impact Assessment, carried out at the time the legislation passed, the definition of woman was changed after the issue was “raised by respondents in relation to the inclusiveness of the language used”, to include non-binary people as well as the “definitions used for female and male in it, which it was felt should be ‘identify as female’ or ‘identify as male’ to avoid issues for transgender people.”
Engender, Scotland’s feminist organisation, which also answered the consultation, has defended the government’s definition of woman and it too believes it meets the Equality Act strictures.
In its submission it states it welcomes the “clarity around the definition of ‘women’ for the purposes of the Act”. It adds: “This definition aligns with the Equality Act 2010 and the specific circumstances relevant to the Act’s application.
“Given that individual public boards will be required to publicly report on numbers of men and women appointed to board positions, to define women so as to exclude trans women with or without a GRC would risk disclosing an individual’s trans status,” and would appear “to conflict with individuals’ right to privacy.”
However, policy expert Lucy Hunter Blackburn said in her submission the change was a “late amendment to the Bill”, which had received “no consultation and very limited parliamentary scrutiny”.
She too claims that the definition departs from that used in the Equality Act and added: “By including non-GRC holders who are male from birth, the definition waters down the benefit of the legislation as a way of compensating for the accumulated life-long obstacles faced by people born with female bodies, which make this legislation necessary.”
She said the government “should amend the Act when a suitable piece of legislation next comes before Parliament, to make sure whatever definition used is fully compliant and consistent with the contents of the Equality Act”.
The new legislation, which applies to health boards, enterprise agencies, the Scottish Police Authority, Scottish Fire and Rescue Service, colleges and universities, has already seen an increase in women’s representation; in June out of a total of 680 regulated ministerial appointments to public boards 341 were women.
A Scottish Government spokesperson said: “The Gender Representation on Public Boards Act was supported overwhelmingly by the Scottish Parliament and complies fully with the Equality Act. We are clear that there is nothing new in trans women being legally women and this Act reflects this.”