Top KC: ‘Scot Govt’s definition of women an unworkable minefield’

Scottish Government legislation allowing women-only positions on company boards to be taken by men who have switched legal sex creates “an unworkable minefield”, the Inner House of the Court of Session has heard.

Representing campaign group For Women Scotland (FWS), Aidan O’Neill KC said if such an ‘absurd’ definition of women was applied to other areas of law then men could be allowed to access female-only facilities such as rape counselling services.

FWS are appealing last December’s Outer House decision in favour of the Scottish Government, where Judge Lady Haldane ruled that the Equality Act 2010’s protections on the basis of a person’s “sex” are “not limited to biological or birth sex”.

‘Undermined’

Guidance on the Gender Representation on Public Boards (Scotland) Act 2018 claims that if a man holds a Gender Recognition Certificate stating “their acquired gender is female” then “the person’s sex is that of a woman”.

But FWS warned the Inner House that this wording has undermined the purpose of the Act to ensure a balance of men and women on public boards.

Lady Dorrian said a written ruling would be given “in due course”. Meanwhile, the Outer House is considering the Scottish Government’s legal challenge over its blocked Gender Recognition Reform (Scotland) Bill.

‘Sex-swaps’

Last month, Scotland’s Outer House heard that the UK Government’s decision to veto Holyrood’s gender self-ID Bill was reasonable and lawful.

Representing the UK Government, David Johnston KC told the judge that the Scottish Secretary blocked the Gender Recognition Reform (Scotland) Bill in order to protect the integrity of UK-wide equalities legislation.

The ‘sex-swap’ Bill seeks to allow 16-year-olds to change their legal sex by self-declaration without a medical diagnosis, and reduce the waiting time for adults from two years to just three months.