WPUK submission to Scottish Government: Implementation of Gender representation on Public Boards (Scotland) Act 2018

We welcome the opportunity to respond to the Scottish Government’s consultation on the implementation of the Gender Representation on Public Boards (Scotland) Act 2018.

About us

Woman’s Place UK (WPUK) is a grassroots feminist campaign which was formed by a group of women in the labour and trade union movement. Initially, our aim was to enable a diverse range of women’s voices to be heard on the UK and Scottish Government’s proposed reforms to the Gender Recognition Act 2004. Since September 2017, we have held 23 public meetings across the UK which have been attended  by over 3,500 people. However, we are increasingly concerned with upholding and advancing women’s sex-based rights generally.

Gender Representation on Public Boards (Scotland) Act 2018

We welcome the Scottish Government’s ambition to improve the representation of women on the boards of Scottish public authorities. Women remain under-represented in all areas of public life.

Women are discriminated against and disadvantaged on the ground of their sex. This is the premise on which all UK anti-discrimination legislation is based. The Sex Discrimination Act 1975 stated clearly that it was concerned with discrimination against a woman “on the ground of her sex”. The fundamental belief underlying the Act was that the physical and social consequences of being born and living with a female body are so significant that women deserve specific protections in law. This premise was carried forward to the Equality Act 2010, currently the legal cornerstone of women’s existing rights to fair treatment, which defines a woman as “a female of any age”.

It concerns us, therefore, that the Gender Representation on Public Boards (Scotland) Act 2018 does not adhere to the same definition of “woman”. Instead it opens up the definition of “woman” to include those with the protected characteristic of gender reassignment:

“woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) if, and only if, the person 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.

It is not clear to us why, on one hand, the 2018 Act relies upon the definition of ‘gender reassignment’ contained in the Equality Act 2010 (Section 7), but departs from the definition of ‘woman’ contained in the Equality Act 2010 (Section 212).

This also has implications for the proposed approach to an Equality Impact Assessment. Any such assessment must consider the protected characteristics of ‘sex’ and ‘gender reassignment’ separately.

In general terms, we are concerned about the way in which gender self-identification principles have been adopted by many UK public authorities, including the Scottish Government, without due consideration for the impact of this conceptual shift on the rights and interests of women. As Murray and Hunter Blackburn (2019) note in the current edition of Scottish Affairs,

That such a paradigm shift has taken place without formal scrutiny or proper monitoring, far ahead of legal change, raises a serious question as to why there has been such a persistent failure to consider the possible wider impacts of gender self-identification, especially on women.

It is therefore our view that the Act should not be brought into force with the current definition of ‘woman’ in Section 2.

4th August 2019