JUDGES have told ministers to explain why they failed to apply UK equality laws while ensuring a change of the definition of women in Scotland to include men who have changed their gender.

It comes as the the Scottish Government defended a challenge to its decision to include trans women in a new law to increase the number of women on Scotland’s public boards.

The Herald can reveal that a row has blown up over a clause included in controversial laws brought in to improve female representation on the boards of Scottish public authorities which included a "disapplication" clause which ministers admit aimed to circumvent any breach of UK equality laws.

It has sparked a new argument over what Scotland has devolved powers to do and what is reserved to the UK.

It has emerged that the Equality and Human Rights Commission in Scotland had at an early stage raised concerns that the law as it was going through the Scottish Parliament may not lay within devolved competence.

And it questioned why it was prioritising women despite there being evidence of other groups who share protected characteristics also being under-represented like disabled people.

The participation of disabled people in public appointments was 11.8% in 2015/16 compared to an average 19.6% of Scotland’s population estimated to be disabled. Disabled people’s participation dropped to as lows as 3.5% between 2014 and 2015, Feminist group For Women Scotland has accused ministers of unlawfully changing the definition of women.

It says that the rights of 'biological' women have been undermined and has questioned what it seen as the Scottish Government view that "men who self-identify as women are female", and that that will be the basis of future policy.

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 GRPB was to introduced 'positive action' to improve gender representation on the boards of Scottish public authorities (SPAs) saying that 50% of non-executive members should be women.


But concerns have arisen that it runs against the grain of UK equality laws which allow for positive discrimination only in very limited circumstances.

In GRPB, the definition of a 'woman' was changed from an original drafting from “a female of any age” – the definition in the UK Equality Act of 2010, to include a “person who has the protected characteristic of gender reassignment”.

And it has emerged that judges have raised questions about Section 11 of the GRPB Act which aimed to "disapply" parts of the UK 2010 Equalities Act - which protects women against sex discrimination and which restrict positive discrimination.

The legal challenge, which is before the Inner House of the Court of Session - Scotland’s highest civil appeal court - has resulted in judges demanding answers as to why ministers chose to "disapply" UK law.

Ruth Crawford QC for the Scottish ministers admitted that Section 11 was established "to prevent an overlap" with the UK Equality Act and to prevent action taken under GRPB from becoming "unlawful".

Lord Malcolm pointed out: "The argument against is that the way it has been done has allowed unlawful discrimination."

After being further quizzed over why the Equality Act was "disapplied", Ms Crawford said she would have to take instructions.

Lord Pentland said: "It's a matter, Miss Crawford, which must have received careful consideration within Scottish Government. And I think it's important that the court understands what the reasoning of the government was."

But Ms Crawford later said she could not "advance matters" except to indicate that this was not an issue which was considered by the Scottish Parliament in the course of debates.

Policy expert Lucy Hunter Blackburn had told ministers at the time in a submission that changes to GRPB were a “late amendment" and received “no consultation and very limited parliamentary scrutiny”.

Both Lord Malcolm and Lord Pentland further pushed for answers from the QC.

Lord Pentland said: "There must have been instructions given to parliamentary counsel to draft the clauses and the instructions must have reflected a policy."

After the QC again said that she could not advance any further explanations Lord Malcolm said he wanted an undertaking that the answers will be "looked for and provided".

Ms Crawford said: "It will be looked for and provided with the caveat 'if something's there'."

For Women Scotland say 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".

Ministers defending the challenge say an amended 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".


People who hold a Gender Recognition Certificate (GRC) have been legally able to change their gender.

But critics say ministers went further with the GRPB bill as “woman” also now includes those who do not have a GRC.

The legislation states that “woman” includes those who have “taken the decision to undergo a process for the purpose of becoming female” though this would “not require the person to dress, look or behave in any particular way”.

It goes on: “It would be expected there would be evidence that the person was living continuously as a woman – always using female pronouns, using a female name on official documents, describing themselves and being described by others using female language” adding the legislation does “not require an appointing person to ask a candidate to prove whether they meet the definition of woman in the Act”.

It is understood the change was implemented after an amendment by Scottish Labour MSP Mary Fee as the original Bill was progressing through the Scottish Parliament.

The then equalities secretary, Angela Constance, accepted the amendment because “we want the Bill to break down barriers and not create them”.

A panel of senior judges - Lady Dorrian, Lord Malcolm and Lord Pentland will consider its decision in the case.