Gender Representation on Public Boards (Amendment) (Scotland) Bill: fairer Scotland duty impact assessment

Gender Representation on Public Boards (Amendment) (Scotland) Bill Fairer Scotland Duty, assessment not required declaration

Policy title

Gender Representation on Public Boards (Amendment) (Scotland) Bill

Directorate

Directorate for Equality, Inclusion and Human Rights

Division Equalities

Team Gender Equality Policy team

Policy lead responsible for taking the decision

Gender Equality Policy team

Rationale for decision

The purpose of the Gender Representation on Public Boards (Amendment) (Scotland) Bill (the Bill) is to amend the Gender Representation on Public Boards (Scotland) Act 2018 (the 2018 Act) to remove the definition of “woman” in section 2, following decisions of the Court of Session of 18 February^[1] and 22 March 2022^[2] (and which had effect from 19 April 2022) in the judicial review and reclaiming motion brought by For Women Scotland.

The definition in section 2 which is to be removed is: ““woman” includes a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010) 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.”

The Court of Session found and declared that the definition was outwith the legislative competence of the Scottish Parliament in that it relates to reserved matters and was accordingly not law, and granted a decree of reduction of the definition. The Court’s decision of 22 March 2022, which was effective from 19 April 2022, provided that there would be no retrospective effect, so there was no impact on any existing appointments already made under the 2018 Act.

The Bill has a single, narrow purpose and is technical in nature. It simply removes the redundant definition of ‘woman’ from the face of the statute book, to reflect the Court’s decisions and ensure persons are not misled. The Bill makes no changes to the legal position; any legal changes to the 2018 Act were as a result of the Court’s decisions in February and March 2022.

The Bill does not constitute a decision of a strategic nature, in terms of section 1(1) of the Equality Act 2010. It will also have no impact on inequalities of outcome caused by socio-economic disadvantage, as it will have no substantive impact more generally. A Fairer Scotland Duty Assessment is therefore not required.

I confirm that the decision to not carry out a Fairer Scotland assessment has been authorised by:

Name and job title of Deputy Director (or equivalent): Catherine McMeeken, Deputy Director Equalities

Date authorisation given: 23/10/2023