A SENIOR lawyer told a judge that a plan by the Scottish government to expand the legal definition of the word “women” violates existing laws on equality.
On Thursday, Aidan O’Neill QC told Lady Wise how it was illegal to amend a law called the Gender Representation on Public Boards (Scotland) Act 2018.
The lawyer said the government’s proposals to amend the legislation, which would make it possible for trans individuals to be more represented on public boards, are legally untenable.
Mr. O’Neill is acting for the For Women Scotland organization, which has launched a judicial review against the proposal at the Court of Session in Edinburgh.
The group is worried that the proposal violates the legislation on equality. For Women also believes that the Scottish government is not in a position to legislate on the matter, as a matter reserved for the UK Parliament at Westminster is allegedly equal opportunities.
In order to ensure equal representation of trans individuals on public boards, the Scottish government believes legislation needs to be changed.
On Thursday, however, Mr. O’Neill said the government’s plans would violate the 2010 Equality Act provisions.
Mr. O’Neill said the Scottish government lacked the authority to amend the Equality Act and the law could not include its proposal.
He added: ‘I say it is important to acknowledge that the provisions of the Scottish Parliament would be completely contrary to the Equality Act.
‘There is no obligation to go with the Equality Act,’ my learned friend would say – well, there is, to the extent that those provisions reflect the limits permitted by EU law.
And indeed, as I have said, the fundamental problem for the respondents is that the exception to the proviso of general equality simply does not empower the Scottish Parliament or the Scottish ministers in any way to amend it or add it to the Equality Act.
The petition, filed by For Women Scotland, alleges that the proposed redefinition of “woman” violates the Equality Act of 2010 and decades of anti-discrimination legislation.
It claims that the Westminster Parliament is reserved for the Equality Act. It claims that the government has failed to evaluate the effect of the new law’s application “on the need to advance gender equality or the need to promote good relations.”
The group decided to take legal action after Scottish ministers informed them earlier this year that they believed they could change the law because it was “within legislative and devolved competence.”
On Thursday, Mr. O’Neill, for the petitioners, told the court that the Equality Act contains “protected characteristics.
He said one of those characteristics protects people from discrimination based on sex.
The Equality Act defines sex as either male or female, or a group of people such as men or boys, or women or girls.
Mr. O’Neill also said that sex discrimination case law defines women based on unique biological characteristics-such as fertility.
He said another protected characteristic under the law is for trans people who face discrimination.
Mr. O’Neill said the Scottish government’s proposals to help trans people gain greater representation on public boards undermine the rights women have under the Equality Act.
He added, “What has happened in this case is the assumption that born men who have the protected characteristic of gender reassignment are equal to born women who do not have the characteristic and who are different in terms of social issues, economically and in terms of representation.
“That’s the assumption that was made without investigation, and we see that when we look at the underlying consultations and discussions – the assumption that was made – there was never any investigation into it – there was never any factual look that says – ‘Look, we have this group – born males – who have the protected characteristic of gender reassignment.’ Isn’t it interesting that our research has shown that they are in exactly the same position as born women who don’t have the protected characteristic of gender reassignment when it comes to representation as non-executive members on public boards.
“That’s why we’re going to