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

Section 5

Terminology Used in the Act

Context

The draft guidance explains the meaning of a variety of terms used in the Act:

• The "gender representation objective".
• "Public authority" and "appointing person".
• "Public board".
• "Non-executive member" and "excluded position".
• The definition of "woman" for the purposes of the Act.

Question 11:

Do you have any comments on the terminology section of the guidance? If so, please let us know.

Across the variety of terms used in the Act, the majority of respondents provided comment on the definition of "woman" for the purposes of the Act. As highlighted throughout the consultation analysis, the main feedback was that:

• The definition used in the Act has extended the legal definition of woman far beyond the Equality Act (2010). It was considered by respondents to be too broad.
• Many respondents commented that sex not gender is a protected characteristic.
• Many felt that the definition should align with the Equality Act (2010), and be clarified. It was suggested that the definition of "woman" should not be changed without consultation.
• Many respondents commented that the term "woman" should be biologically born women and not anybody who self-identifies as a woman.
• Other respondents commented that the extended definition of woman would have implications for reporting. Some suggested that it would skew the figures reported, and hide under-representation of women of the boards of public authorities – as per Equality Act (2010) definition. Some felt that reporting would be meaningless. and that it would undermine the purpose of the Act and render it not fit for purpose.

Linked to the above feedback were comments provided on the term "gender representation objective". The main comment was that the term gender was "ambiguous", a "contentious word" and "misleading".

The general view of respondents was that "gender" should be replaced with "sex" to eliminate unnecessary confusion (e.g. the two terms are not synonyms). This point is reflected in the following quotes provided by respondents.

"The legal definition of woman needs to be defined with reference to the biological terms for an adult human female. The only exception to this would be if the person qualifies under the Gender Recognition Act 2004 and has a birth certificate which states they are of the female sex".

"Definition of woman should be the female sex and include women with a Gender Recognition Certificate under Gender Recognition Act (2004)".

"The definition of woman in the draft guidance seeks to conflate two separate protected characteristics under the Equality Act 2010. It is important that both characteristics are protected but by conflating the two it is impossible to tell whether the aims have been met in respect of either".

"A separate piece of legislation should be enacted to address under representation by those who identify as a different gender to their sex observed at birth and to those who identify as non-binary".

"The use of "gender" instead of "women" conflates sex and gender and is open to abuse".