RECLAIMING MOTION BY FOR WOMEN SCOTLAND LIMITED AGAINST THE LORD ADVOCATE AND OTHERS [2022] ScotCS CSIH_4 (18 February 2022)

RECLAIMING MOTION BY FOR WOMEN SCOTLAND LIMITED AGAINST THE LORD ADVOCATE AND OTHERS [2022] ScotCS CSIH_4 (18 February 2022)

The definition of 'woman' in section 2 of the 2018 Act unlawfully conflates the protected characteristics of sex and gender reassignment, and qualifies the latter by protecting only those living as women. This impinges on the nature of protected characteristics, which is a reserved matter. The Scottish Parliament may legislate for inclusion of persons with protected characteristics on public boards, but cannot redefine or combine those characteristics. Accordingly, sections 2 and 11 of the 2018 Act are outwith legislative competence.

Citation
[2022] ScotCS CSIH_4
Parties
Petitioners and Reclaimers: For Women Scotland Limited; Respondent: The Lord Advocate; Respondent: The Scottish Ministers; Intervener: The Equality Network
Jurisdiction
Scotland
Judgment Date
18 February 2022
Procedural Posture
Judicial Review (reclaiming Motion) / Appeal (inner House, Court of Session)
Outcome
Reclaiming motion allowed; sections 2 and 11 of the Gender Representation on Public Boards (Scotland) Act 2018 held to be outwith legislative competence.
Legal Topics
Legislative Competence, Protected Characteristics, Positive Action, Gender Representation, Devolution, Statutory Interpretation
Constitutional Law Equality Law Administrative Law Legislative Competence Protected Characteristics Positive Action Gender Representation Devolution +1 more

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Parties

For Women Scotland Limited

Petitioners and Reclaimers

The Lord Advocate

Respondent

The Scottish Ministers

Respondent

The Equality Network

Intervener

Procedural Posture

Judicial Review (reclaiming Motion) / Appeal (inner House, Court of Session)

Legal Issues

  1. 1 Whether sections 2 and 11 of the Gender Representation on Public Boards (Scotland) Act 2018 are within the legislative competence of the Scottish Parliament
  2. 2 Whether the definition of 'woman' in the Act unlawfully conflates protected characteristics of sex and gender reassignment
  3. 3 Whether the Act unlawfully modifies or disapplies provisions of the Equality Act 2010

Ratio Decidendi

The definition of 'woman' in section 2 of the 2018 Act unlawfully conflates the protected characteristics of sex and gender reassignment, and qualifies the latter by protecting only those living as women. This impinges on the nature of protected characteristics, which is a reserved matter. The Scottish Parliament may legislate for inclusion of persons with protected characteristics on public boards, but cannot redefine or combine those characteristics. Accordingly, sections 2 and 11 of the 2018 Act are outwith legislative competence.

Court Disposition

Reclaiming motion allowed; sections 2 and 11 of the Gender Representation on Public Boards (Scotland) Act 2018 held to be outwith legislative competence.