THE Scottish Government is facing a court battle over the definition of woman, after a campaign group won their bid to challenge ministers over a controversial piece of legislation.
For Women Scotland (FWS) have been granted a judicial review into the Gender Representation on Public Boards Act 2018 (GRPBA).
They argue that Holyrood exceeded its authority when it passed the legislation in January 2018 by redefining the 2010 Equality Act, which is reserved to Westminster.
The Act was passed by 88 to 28, with only Tory MSPs voting against.
The aim of the GRPBA is to improve the representation of women at the top levels of Scottish public bodies.
It creates a target for public boards to have 50% of non-executive members who are women.
However, it states that the definition of woman should include “a person who has the protected characteristic of gender reassignment ... 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".
That means a trans woman who has not yet changed their legal sex from male to female using a gender recognition certificate, but who is “living as a woman” would be covered.
A 2019 Scottish Government consultation said evidence that a person was continuously living as a woman would include “always using female pronouns; using a female name on official documents such as a driving licence or passport, or on utility bills or bank accounts; describing themselves and being described by others in written or other communication using female language".
This definition of woman goes beyond the Equality Act which defines a woman as a female of any age.
The legislation also excludes women who are transitioning to become men.
FWS said the GRPBA could not be allowed to stand. A spokesperson said: “It should not be possible for Scottish Government to redefine Protected Characteristics in discrete legislation nor undermine UK equality law.
"Governments at Westminster and Holyrood have, shamefully, ignored UK law and left ordinary women with the task of defending our legal rights at personal and financial cost.
"We object to the wholesale redefinition of women, which was done at the request of a lobby group, and without public consultation or Parliamentary scrutiny.”
A substantive hearing has been assigned for January 7, 2021.
The Scottish Government has been approached for comment.
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