A JUDGE has ruled that transgender women with a Gender Recognition Certificate (GRC) can legally be defined as women when it comes to legislation that aims to ensure gender balance on public boards.

In her judgment on the second judicial review of the Gender Representation on Public Boards (Scotland) Act Lady Haldane said:

“The meaning of sex for the purposes of the 2010 Act, 'sex' is not limited to biological or birth sex, but includes those in possession of a GRC obtained in accordance with the 2004 Act stating their acquired gender, and thus their sex."

Last year, campaign group For Women Scotland took the Scottish Government to court over its definition of “women” in the Gender Representation on Public Boards (Scotland) Act 2018.

The bill’s intention is to ensure that non-executive members on public boards are made up of at least 50% women.

Ministers had argued that people who were living as a woman or had gone through or intended to undertake the process of gender recognition could be defined as women within the legislation.

However, For Women Scotland argued that this did not accord to the separate definitions of women and transgender woman in the Equality Act 2010 and expressed fears about its wider implications for single-sex spaces.

The campaign group lost the initial judicial review of the bill in 2021 but were then successful upon appeal.

The Scottish Government then revised the legislation, which now states that the definition of “woman” is defined by the Equality Act 2010 and the Gender Recognition Act 2004.

The guidance states: “Where a full gender recognition certificate has been issued to a person that their acquired gender is female, the person’s sex is that of a woman, and where a full gender recognition certificate has been issued to a person that their acquired gender is male, the person’s sex becomes that of a man.”

In practice, this means that transgender women with a gender recognition certificate would be considered women under the bill.

But For Women Scotland were not happy with the revision and called for a second judicial review, the results of which Lady Haldane revealed today.

Lady Haldane's judgment states that while the Equality Act 2010 protects a person's rights based on their sex, the definition of "sex" is not entirely restricted to a person's biological birth sex.

Indeed, she concludes that the ability of a Gender Recognition Certificate to change someone's legal sex "does not offend against, or give rise to any conflict with, legislation where it is clear that 'sex' means biological sex."

In court last month their lawyer, Aidan O’Neill KC, argued that allowing transgender people to change their legal sex with regards to the Equality Act would “run a coach and horses through the preservation of safe spaces for women and single-sex provision for women under the Equality Act".

During debates in the Scottish Parliament regarding the reform of gender recognition in Scotland – which is set to be voted on by MSPs on next week – the Scottish Government has repeatedly argued that making it easier for trans people to obtain a GRC will not impact the protections enshrined for women in the Equality Act 2010, including those regarding single-sex spaces
But For Women Scotland stated that MSPs were voting on the gender reform legislation “blind” because it would come before the ruling on the judicial review, which was not expected to come until after MSPs had cast their final votes on the legislation on December 21.

Lady Haldane's judgment also made clear that it referred only the legislative competence of the Scottish Government in this specific case and should be considered a ruling on the broader rights of transgender people.