A FEMINIST group has begun a fight to have a court rule Scots ministers acted unlawfully by changing the definition of women to include men who have changed their gender.

The Scottish Government has previously successfully defended a judicial review on its decision to include trans women in a new law to increase the number of women on Scotland’s public boards.

The decision is being fought by For Women Scotland which is questioning the Scottish Government view that "men who self-identify as women are female", and  that that will be the basis of future policy.

It says ministers were acting outside their legislative competency under the Scotland Act 1998 and in contravention of their duties under equality legislation.

And it said the action has already been cited by those "hoping to roll back women's rights".

The challenge is over the legality of the 2018 Gender Representation on Public Boards (GRPB) Act, and what it called the redefinition of the word woman to include people who had not changed their legal sex to 'female' using a Gender Recognition Certificate (GRC).

The aim of the Act was to improve the gender representation on the boards of Scottish public authorities (SPAs) saying that 50% of non-executive members should be women.

But the definition of woman was changed from “a female of any age” – as it is defined in the Equality Act – to include a “person who has the protected characteristic of gender reassignment”.

People who hold a gender recognition certificate (GRC) have legally changed their sex, but For Women Scotland said the Scottish Government had gone further so that “woman” also includes those who do not have a GRC.

And they say that in equalities legislation the term 'woman' meant only biological women and the Scottish Parliament had no power to alter that because it was a reserved matter.

They also say that by treating biological and transgendered women in the same way, the 2018 Act went beyond what was permitted by the European Convention on Human Rights (ECHR).

And they say that while the new law was intended to address historical under-representation of women on public boards - it had set out a "dangerous precedent" of redefining women as those who the Equality Act 2010 would characterise as male, but who may self-identify as female.

They say the redefinition goes "against the very grain" of the Equality Act and decades of anti-discrimination law.

They said it also raised concerns that GRPBA had been used to bring in "legal self identification of sex by the back door".

In a Court of Session ruling in her Court of Session ruling earlier this year, judgement Lady Wise ruled the government had acted lawfully under a “specific power” that enabled it to take equal opportunities measures and had not breached the UK Equality Act.

But  For Women Scotland are now taking the issues to the  Inner House of the Court of Session - Scotland’s highest civil appeal court.

Aidan O'Neill QC, for For Women Scotland said the GRPB legislation was unlawful because it undermined the rights of ‘biological’ women.

He said the definition of the word ‘woman’ contained within legislation breaches equality laws and needs to be “taken out”of the document.

He said men who claim the protected characteristic of gender reassignment had been "lumped in" with women.

"That creation of a new group which consists of people who do not share any protected characteristic is not something which properly falls within the lawful approach to positive action measures which this Act is intended to produce," he said.

He added:"The biological sex of an individual is in principle determined as a matter of fact of law, according to that person's chromosomes and endogenous internal and external sex organs. It is not a matter of choice, or self identification. it's a matter of biological fact. And that's what the current position is in law."

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He said one of the main issues was that the the definition of men transitioning to women was not confined to those with a gender recognition certificate - which allows people to have their sex legally recognised.

"Instead it is far broader and intended to be far broader, but it's looking at the possibility of self identifying without having to go through the processes," he said.

He said that men who have had gender resassignment "have their own issues" in relation to participation and representation in the workforce and any separate positive discrimination measures would need to be supported by research on why it was necessary.

He said that the 2018 Act would also discriminate against women who had undergone gender reassignment to identify as men. "I can quite understand that one might say there is prejudice against those who have the protected characteristics of gender reassignment and they have not progressed as they might have done in the workplace, and therefore they are in need of positive action measures," he said.

"But to specifically put in place positive action measures which cover biological men who have a protected characteristic of gender reassignment, but specifically exclude biological women who have a protected characteristic of gender reassignment is to make a massive assumption which needs proper evidence because of course, it is a form of direct discrimination, which can only be lawful if it falls within the parameters of section 159 [of the Equality Act].

"So for me, there's all sorts of sociological issues, which these issues raise but certainly, one cannot proceed simply on the assumption that, you know, what harm is it."

In her judgement earlier this year, Lady Wise said the GRPB Act “was within the legislative competence of the Scottish Parliament and does not offend against the fundamental principle of equality of treatment”.

She said that the 2018 Act did not redefine 'woman' for any purpose other than to include transgender women as a category who could benefit from its provision, and that this was within the scope of exceptions to the reservation of equal opportunities.

She said: “It should be remembered that the purpose of the legislation is not to make provision in respect of transgender discrimination, it is to take positive actions measures to increase the participation of women on public boards.

"As EU law confirms that discrimination against transwomen is sex discrimination about which member states can legislate, the 2018 Act does not seem to me to offend the principle of equal treatment and the limited permitted derogation from that principle.”

However, Lady Wise said the case did not “form part of the policy debate about transgender rights, a highly contentious policy issue to which this decision cannot properly contribute”.

"This litigation is concerned with whether certain statutory provisions were beyond the legislative competence of the Scottish Parliament,” she said.

The concerns are over the definition of 'woman' in section 2 of the 2018 Act which includes a person who has the protected characteristic of gender reassignment under 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".

The reserved matters arguments centre around an 'equal opportunities' exception found in schedule 5 of the Scotland Act 1998.

Ministers assert the exception inserted by the Scotland Act 2016, permits the Scottish Parliament to legislate on "equal opportunities so far as relating to the inclusion of persons with protected characteristics in non-executive posts on boards of Scottish public authorities with mixed functions or no reserved functions".