Court of Session (Inner House): Lord Justice Clerk, Lord Malcolm, Lord Pentland, [2022] CSIH 4, 18 February 2022

This was a challenge brought by way of judicial review to the Scottish Government’s decision by way of the Gender Representation on Public Boards (Scotland) Act 2018 to implement certain positive action measures which treated as a “woman” a “person [who] 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.”

The claimants challenged the definition of “woman” and the Act’s disapplication of certain provisions of the EqA on the basis that they were outwith the legislative competence of the Scottish Parliament. The claim was dismissed on 23 March 2021 but the Inner House of the Court of Session (Scotland’s Court of Appeal) allowed the claimants’ appeal. Equal opportunities were a “reserved matter” under the Scotland Act 1998 except (so far as relevant here) where they “relat[ed] to the inclusion of persons with protected characteristics” on Scottish public boards (s37 Scotland Act 2016). The Scottish Government was entitled to go beyond the positive measures provided for in the EqA but only insofar as the measures adopted related to “protected characteristics” as defined by the EqA.

The Lord Ordinary (equivalent to the High Court) had ruled that P v S and Cornwall County Council [1996] ICR 795 was to the effect that trans people are to be included as being of the sex to which they have reassigned. The Inner House disagreed:

“[36] The protected characteristics listed in the 2010 Act include “sex” and “gender reassignment”. The Scottish Parliament would, as we have noted, have been entitled to make provision in respect of either or both these characteristics. So far as the characteristic of sex is concerned, it would be open to the Scottish Parliament to make provision only for the inclusion of women, since a reference to a person who has a protected characteristic of sex is a reference either to a man or to a woman. For this purpose a man is a male of any age; and a woman is a female of any age. Section 11(b) indicates that when one speaks of individuals sharing the protected characteristic of sex, one is taken to be referring to one or other sex, either male or female. Thus an exception which allows the Scottish Parliament to take steps relating to the inclusion of women, as having a protected characteristic of sex, is limited to allowing provision to be made in respect of a “female of any age”. Provisions in favour of women, in this context, by definition exclude those who are biologically male.

[37] The matter does not end there, however, because it is clear that the PBE would entitle the Scottish Parliament to legislate in favour of increased representation on public boards of those holding any protected characteristic, including that of gender reassignment… it is the attribute of proposing to undergo, undergoing or having undergone a process (or part of a process) for the purpose of reassignment which is the common factor, not the sex into which the person is reassigned. It is reasonable to assume that at some stage of the process in question the individual will start living as a member of the sex to which they are seeking to transition, but it is not a specified requirement for the acquisition of the protected characteristic.

[38] P v S (supra) was decided at a time when protection against discrimination on the basis of gender reassignment was not included in the UK legislation, then the Sex Discrimination Act 1975. The case was referred to the ECJ on the question whether dismissal for a reason connected to gender reassignment was a breach of Council Directive 76/207, Art 5(1), designed inter alia to prevent discrimination on the grounds of sex. The conclusion was that, standing the fundamental purpose of equality between the sexes which underlay the Directive, its scope was not confined to discrimination based on the fact that a person was of one or other sex, but also extended to discrimination arising from the gender reassignment. It led to recognition of gender reassignment as a basis of discrimination being added to the 1975 Act, in section 2A. Whilst it recognised that discrimination on the basis of gender reassignment was most likely to be sex discrimination, neither it nor the Chief Constable of West Yorkshire Police (No 2) (supra) case, which anticipated the 2004 Act, is authority for the proposition that a transgender person possesses the protected characteristic of the sex in which they present. These cases do not vouch the proposition that sex and gender reassignment are to be conflated or combined, particularly in light of subsequent legislation on the matter in the form of the 2010 Act which maintained the distinct categories of protected characteristics, and did so in the knowledge that the circumstances in which a person might acquire a gender recognition certificate under the 2004 Act were limited.

[39] By incorporating those transsexuals living as women into the definition of woman the 2018 Act conflates and confuses two separate and distinct protected characteristics, and in one case qualifies the nature of the characteristic which is to be given protection. It would have been open to the Scottish Parliament to include an equal opportunities objective on public boards aimed at encouraging representation of women. It would have been open to them separately to do so for any other protected characteristic, including that of gender reassignment. That is not what they have done. They have chosen to make a representation objective in relation to women but expanded the definition of women to include only some of those possessing another protected characteristic. Having regard to the general proportions within society of men and women, an objective aimed at achieving on public boards a representation of women in a measure of 50% would seem entirely reasonable and proportionate. It would not be such as might risk turning a legitimate positive measure into reverse discrimination, such as might have arisen if the figure aimed at were, say, 95%. Moreover, what would be a reasonable percentage for a representation objective in relation to other protected characteristics would depend on various factors, including the extent of current under-representation, but it would be unlikely to result in an objective aimed at 50% being viewed as proportionate for those other protected characteristics, having regard to the general population. The point is illustrated by the reclaimers’ submission – admittedly far-fetched and unlikely to happen – that under this definition the representation objective could as a matter of law be met by the appointment of no individuals possessing the protected sex characteristic of women. The fact that an appropriate percentage for a representation objective in relation to one protected characteristic may not be proportionate and appropriate to another characteristic highlights why it is important to apply an individual approach to the characteristics and to focus in each case on those who share a relevant protected characteristic. A measure which reflected an equal opportunities-appropriate representation objective for one group, might, if applied to another, reveal itself not to be an equal opportunities measure at all.

[40] In any event, the definition of woman adopted in the legislation includes those with the protected sex characteristic of women, but only some of those with the protected characteristic of gender reassignment. It qualifies the latter characteristic by protecting only those with that characteristic who are also living as women. The Lord Ordinary stated that the 2018 Act did not redefine “woman” for any other purpose than “to include transgender women as another category” of people who would benefit from the positive measure. Therein lies the rub: “transgender women” is not a category for these purposes; it is not a protected characteristic and for the reasons given, the definition of “woman” adopted in the Act impinges on the nature of protected characteristics which is a reserved matter. Changing the definitions of protected characteristic, even for the purpose of achieving the GRO, is not permitted and in this respect the 2018 Act is outwith legislative competence.”

Petitioners: Aidan O’Neill QC, instructed by Balfour & Manson LLP

Respondents: Ruth Crawford QC, Lesley Irvine, instructed by the Scottish Government Legal Directorate