Court: ‘Men can take women’s positions on boards if they have a gender certificate’

Women-only positions on company boards in Scotland can legitimately be taken by biological males who have changed legal sex, the Court of Session has ruled.

Campaign group For Women Scotland had challenged a Scottish Government edict permitting men with a Gender Recognition Certificate (GRC) to be appointed to a board position designated solely for women.

The group argued that by allowing biological males to take positions set aside for females, the Scottish Government was altering the legal definition of a woman.

Redefinition of ‘women’

In its Gender Representation on Public Boards (Scotland) Act 2018 – legislation which aims to ensure a balance of men and women on public boards – the Scottish Government had defined women as including males who have legally transitioned to become ‘transgender women’.

For Women Scotland pointed out that in the Equality Act 2010, there are separate definitions for ‘women’ and ‘transgender women’, and challenged the legislation by judicial review, citing concerns over the implications for female-only spaces. They lost their initial case, but then won on appeal.

In response, the Scottish Government revised the legislation to state: “Where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.”

‘Hugely disappointed’

The women’s campaigners challenged this again, but Lady Haldane of the Court of Session ruled in favour of the Scottish Government.

She claimed that while the Equality Act 2010 does offer women certain protections on the basis of their sex, the definition of “sex” in the legislation is not limited to the biological definition.

For Women Scotland said they were “hugely disappointed” with the ruling, saying: “At first reading this seems disastrous for women who are seemingly now no longer recognised in law as a sex-class, with distinct requirements of our own. We are obviously still analysing the decision and will consider if any further legal action is appropriate in due course.”

The group also said there are “clear ramifications” for the Gender Recognition Reform Bill being considered in Holyrood, adding that it is “now beyond doubt that the Bill is not a ‘simple administration change’ but does have a wider impact on society”.

Dramatic increase

The Scottish Government is proposing to allow those as young as 16 to change legal sex without any diagnosis of gender dysphoria, and is dramatically reducing the waiting time required to receive a GRC. The legislation is expected to be voted into law soon.

Since the GRC legisaltion came into effect in the UK, around 6,700 full GRCs have been issued.

It is estimated only between 425 and 510 people in Scotland have legally changed sex since the law changed 17 years ago. The Scottish Government projects that, if the law changes, 200 to 300 people could apply for a GRC each year.