Introduction

The case of Reclaiming Motion by For Women Scotland Limited against The Lord Advocate and Others ([2022] ScotCS CSIH_4) was adjudicated by the Scottish Court of Session on February 18, 2022. The petitioners, For Women Scotland Limited, challenged the Scottish Government's implementation of positive action measures under the Gender Representation on Public Boards (Scotland) Act 2018. The central issues revolved around the definition of "woman" in Section 2 of the Act and the disapplication of certain provisions of the Equality Act 2010 in Section 11, alleging that these measures exceeded the legislative competence granted to the Scottish Parliament under the Scotland Act 1998. The respondents included The Lord Advocate, Scottish Ministers, and The Equality Network as interveners.

Summary of the Judgment

The Court of Session, in its opinion delivered by Lady Dorrian, upheld the reclaiming motion brought forth by For Women Scotland Limited. The court determined that Sections 2 and 11 of the Gender Representation on Public Boards (Scotland) Act 2018 went beyond the legislative competence of the Scottish Parliament. Specifically, the court found that the Act's definition of "woman," which included individuals with the protected characteristic of gender reassignment under certain conditions, conflated distinct protected characteristics as delineated in the Equality Act 2010. This conflation was deemed incompatible with the Scotland Act 1998, thereby rendering the provisions ultra vires.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents:

• P v S and Cornwall County Council [1996]: Affirmed that EU law supports inclusion of transgender individuals under sex discrimination protections.
• Chief Constable of West Yorkshire Police v A and another (No.2) [2004]: Anticipated the inclusion of gender reassignment in discrimination protections.
• Imperial Tobacco Limited v Lord Advocate [2013]: Addressed legislative competence concerning reserved matters.
• Briheche v Ministre de l'Intérieur [2004]: Clarified the limitations of positive action under EU law, emphasizing equality of opportunity over equality of outcome.

These cases collectively influenced the court's interpretation of legislative competence and the scope of protected characteristics under equality law.

Legal Reasoning

The court's legal reasoning centered on the interpretation of the Scotland Act 1998, particularly regarding devolved powers and reserved matters. Key points included:

• Legislative Competence: The court examined whether the Scottish Parliament had the authority to redefine "woman" by incorporating individuals undergoing gender reassignment.
• Protected Characteristics: It was emphasized that "sex" and "gender reassignment" are distinct protected characteristics under the Equality Act 2010, and conflating them breaches legislative boundaries.
• Public Board Exception (PBE): While the PBE allows for positive action measures, it does not permit modifying the definitions of protected characteristics as set out in reserved UK-wide legislation.
• Proportionality and Reverse Discrimination: The court assessed whether the 50% gender representation objective was proportionate and found that combining distinct characteristics could lead to reverse discrimination.

Consequently, the court concluded that the Scottish Parliament exceeded its legislative competence by redefining "woman" in a manner that merged separate protected characteristics.

Impact

This judgment has significant implications for future legislation within the Scottish Parliament:

• Definition Clarity: Legislatures must maintain clear and distinct definitions for each protected characteristic to avoid ultra vires challenges.
• Positive Action Measures: While positive action is permissible, it must adhere strictly to the framework established by reserved legislation like the Equality Act 2010.
• Devolved Powers Limitation: The ruling underscores the boundaries of devolved powers, particularly concerning reserved matters, ensuring that devolved legislation does not encroach upon UK-wide statutes.
• Equality Law Compliance: Future measures must reconcile devolved objectives with existing equality laws to prevent conflicts and ensure legal validity.

Complex Concepts Simplified

Legislative Competence

Legislative competence refers to the authority granted to a legislative body to enact laws within specific domains. In the UK, certain matters are reserved to the UK Parliament, while others are devolved to bodies like the Scottish Parliament. Exceeding these boundaries leads to laws being declared ultra vires or beyond legal authority.

Positive Action vs. Positive Discrimination

Positive Action involves measures that encourage underrepresented groups to engage in equal opportunities, such as setting representation targets. It seeks to level the playing field without disadvantaging others. Positive Discrimination, however, involves favoring a group explicitly, which can lead to reverse discrimination against those not in the favored group.

Protected Characteristics

Under the Equality Act 2010, protected characteristics are specific attributes that are safeguarded against discrimination. These include:

• Age
• Disability
• Gender Reassignment
• Marriage and Civil Partnership
• Pregnancy and Maternity
• Race
• Religion or Belief
• Sex
• Sexual Orientation

Each characteristic is distinct and must be treated as such in legislation and policy to ensure comprehensive protection.

Conclusion

The Reclaiming Motion by For Women Scotland Limited serves as a pivotal judgment clarifying the limits of the Scottish Parliament's legislative competence concerning equality measures. By disallowing the conflation of distinct protected characteristics within the definition of "woman," the court reinforced the necessity for legislative precision and adherence to reserved statutes like the Equality Act 2010. This decision ensures that positive action measures remain within legal boundaries, promoting fair and equitable representation without encroaching upon established equality laws. Future legislative endeavors must heed this ruling to craft policies that are both effective and constitutionally sound, thereby fostering an inclusive and legally compliant framework for equality in Scotland.