Introduction

In the landmark case For Women Scotland Ltd v The Lord Advocate and The Scottish Ministers ([2021] ScotCS CSOH_31), the Scottish Court of Session addressed pivotal issues surrounding the definition of "woman" within the Gender Representation on Public Boards (Scotland) Act 2018. The petition, brought forward by For Women Scotland Ltd, challenged the Act's provisions regarding gender representation on public boards, specifically questioning whether the Scottish Parliament had the legislative competence to define "woman" as it did. The case also delved into the compatibility of these provisions with EU law and the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

Summary of the Judgment

The Scottish Court of Session, presided over by Lady Wise, concluded that the Gender Representation on Public Boards (Scotland) Act 2018 was within the legislative competence of the Scottish Parliament. The court dismissed the petition, finding no breach of the Scotland Act 1998, EU law, or CEDAW. The Act's definition of "woman," which included transgender women under specific conditions, was upheld as a lawful exercise of the Scottish Parliament's devolved powers.

Analysis

Precedents Cited

The judgment referenced several key cases to frame its decision:

• Corbett v Corbett (1971) and Bellinger v Bellinger (2003): These cases established the legal definition of "woman" based on biological sex, emphasizing the fixed nature of biological classifications.
• R (McConnell) v Registrar General for England and Wales (2020): Highlighted complexities in gender recognition and its implications on personal status registrations.
• P v S and Cornwall County Council (1996): Affirmed that EU laws on equality extend beyond mere biological classifications, encompassing gender reassignment as a protected characteristic.
• Imperial Tobacco Limited v Lord Advocate (2012) and Christian Institute v Lord Advocate (2016): Provided guidelines on interpreting legislative competence within devolved powers.

Legal Reasoning

The court meticulously analyzed whether the Scottish Parliament had overstepped its legislative boundaries as defined by the Scotland Act 1998. Central to this was the interpretation of "reserved matters," which are areas where the Scottish Parliament cannot legislate. The Act in question fell under an explicitly provided exception concerning "equal opportunities" in non-executive posts on public boards.

The judgment underscored that:

• The definition of "woman" in the 2018 Act was purpose-specific, aimed at achieving gender balance on public boards without redefining "woman" in a broader legal context.
• The inclusion of transgender women was consistent with both EU directives and the principles established in CEDAW, ensuring non-discriminatory practices.
• Positive action measures outlined in the Act adhered to the proportionality and necessity criteria stipulated under the Equality Act 2010.

Impact

This judgment has profound implications for equality legislation within Scotland:

• Affirms the Scottish Parliament's authority to enact laws promoting gender equality within specified frameworks.
• Sets a precedent for the inclusion of transgender individuals in equality measures, aligning domestic law with EU directives and international conventions.
• Clarifies the boundaries of legislative competence concerning reserved matters, offering a blueprint for future legal challenges in similar domains.

Complex Concepts Simplified

To fully grasp the judgment, it's essential to understand several intricate legal concepts:

• Legislative Competence: The authority granted to a legislative body, in this case, the Scottish Parliament, to enact certain types of laws. It is delineated by higher statutes like the Scotland Act 1998.
• Reserved Matters: Areas of legislation that the Scottish Parliament cannot legislate on because they are retained by the UK Parliament. These include defense, foreign affairs, and overarching equality laws.
• Positive Action vs. Positive Discrimination:
  • Positive Action involves measures that encourage or facilitate the participation of underrepresented groups without giving them undue preference.
  • Positive Discrimination involves preferential treatment based solely on protected characteristics, often unlawful.
• Protected Characteristics: Attributes protected under equality legislation, such as sex, gender reassignment, race, disability, etc.
• CEDAW: An international treaty aimed at eliminating discrimination against women, influencing domestic equality laws.

Conclusion

The judgment in For Women Scotland Ltd v The Lord Advocate and The Scottish Ministers serves as a pivotal affirmation of the Scottish Parliament's legislative competence concerning gender representation in public boards. By meticulously aligning the Gender Representation on Public Boards (Scotland) Act 2018 with existing equality frameworks and international standards, the court not only upholds the Act's validity but also reinforces the inclusive trajectory of equality laws within Scotland. This decision not only clarifies the extent of devolved powers but also ensures that equality measures remain robust, inclusive, and in harmony with broader legal principles.