Gender Representation on Public Boards (Scotland) Act 2018 implementation: consultation analysis

Appendix B – Definition of "Woman" for the purposes of the Act

Section 2 of the Act provides that for the purposes of the Act, "woman" includes "a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 201010) 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".

To be included, a trans woman without a UK Gender Recognition Certificate or without gender recognition from another EU Member State11 must therefore meet the 3 following criteria:

1. Have the characteristic of gender reassignment as defined in the Equality Act 2010.

The definition of gender reassignment in the Equality Act 2010 is – "a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex".

This definition includes thosereassigning their sex from male to female as well as those reassigning theirsex from female to male. A person who meets this definition is not covered bythe definition of "woman" in the Act unless they also meet the following twocriteria. The person does not need to have undergone any specific treatmentor surgery.

2. Be proposing to undergo, undergoing or undergone a process (or part of a process) for the purpose of becoming female

This element of the definition means that the person has taken a decision to undergo a process for the purpose of becoming female.

3. Be living as a woman

This would not require the person to dress, look or behave in any particular way. However, it would be expected that there would be evidence that the person was continuously living as a woman, such as – 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 in section 2 provides clarity that, for the purposes of applying the provisions of the Act, "woman" includes a trans woman who meets the definition set out. This provision only relates to the meaning of "woman" in the Act. This does not have the effect of creating a new legal definition of woman in any other context.

The Act does not require an appointing person to ask a candidate to prove that they meet the definition of woman in the Act.