Draft includer

On the 4th of June this year the Scottish government published its guidance on its own Gender Representation On Public Boards (Scotland) Act.

The aim of the act is laudable enough. It seeks to ensure that public bodies in Scotland have at least half of their non-executive director posts (rounded down) filled by women. One would hope that goal, at least, was not too controversial.

Instead the controversy has been around the paragraph at the end of the act’s key definitions, and the guidance to go along with it.

Firstly, what the act itself says:

gropb act

This is, as the paragraph says, a slight re-wording of section 7(1) of the Equality Act, which says:

eq act

It has, as you’d expect, been tailored to refer only to people who are having gender reassignment to become women. A key word here is “includes”. This indicates that the act doesn’t apply only to be people with the protected characteristic of gender reassignment, but also to the larger group understood by the term “woman”.

We’ll come back to this, and the use of the Equality Act, shortly. Meanwhile, on to the guidance, specifically the section of it titled, “Definition of ‘woman’ for the purposes of the Act”

The section opens with para 2.12, which reiterates what the act itself says. The following paragraph, 2.13, then lays out three criteria that a transwoman without a gender recognition certificate must meet in order to qualify as a woman for the purpose of the act. A footnote tells us that, “A trans woman with a UK Gender Recognition Certificate or with gender recognition from another EU Member State is legally a woman.”

It’s worth flow-charting the process that’s being described here.

gra flowchart 1

The 3rd box down is something of a supposition, because neither the guidance nor the act itself say that a transman with a gender recognition certificate would not come under the wider, undefined, term “woman”. Instead we’d have to look at section 9(1) of the 2004 Gender Recognition Act, not referenced in this act, which says that “Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender”, and presume that their assumed gender supersedes natal gender.

We’re also guessing, in the 4th box, as to what the wider term “woman” means, as it’s not defined here. All we’re told is that it includes transwomen. As we’ll see shortly, this act is tying itself in knots to avoid a much plainer, but more contestable definition.

We’re still on paragraph 2.13, which defines the 3 criteria a transwoman must meet in order to be a woman, for the purpose of this act. The wording of this para makes it absolutely clear that it applies only to transwomen without a GRC:

gropb act 2

The three criteria are then laid out:

  1. Have the characteristic of gender reassignment, as defined in the Equality Act
  2. Be proposing to undergo, is undergoing or undergone a process (or part of a process) for the purpose of reassigning their sex to female
  3. Be living as a woman

Other problems aside, this is at least fairly easy to add to our flowchart:

gropb flowchart 2

The “living as a woman” criteria will be familiar to anybody who paid any attention to the Scottish government’s planned reforms of the Gender Recognition Act, which have now been sidelined, following considerable outcry about them.

Living as a woman specifically does not entail any changes to appearance, dress or behaviour, instead it requires:

  1. “Always using female pronouns” (which I assume means that they always ask for other people to use female pronouns in relation to them, rather than the literal reading, which is that they must never refer to anyone at all as “he” or “him”)
  2. Using a female name on official documents (there is, sadly, no official list of female names)
  3. Using female titles (presumably Miss and Mrs, no consideration seems to be given for those using ‘gender neutral’ variants)
  4. Using the gender marker for female on official documents, such as a driving licence
  5. Describing themselves, and being described by others, as a woman

Criteria 3 does rather make the other 2 criteria redundant, as they both relate to the equality act, which says only that the protected characteristic of gender reassignment covers those proposing to undergo, undergoing or having undergone “changing physiological or other attributes of sex”

The 5 requirements to be considered living as a woman constitute the “other” part of attributes of sex. It’s hard to see how you could be living as a woman in the manner described and not be considered to have the protected characteristic of gender reassignment.

Also, the second criteria – in a paragraph which, as we saw, applies exclusively to transwomen without a GRC – explicitly excludes transmen.

gropb act 3

Putting this exclusion here makes our flowchart a bit more complex:

gra flowchart 2

However, if we look at it objectively, taking in the evident desire to include transwomen (not female) but exclude transmen (female), then we can see the actual decision making is much simpler, and doesn’t require any references to the Gender Recognition Act or the Equality Act, just a simple recourse to the only criteria in the guidance that carries any meaning:

gra flowchart 3

This is clearly the intent of the guidance. Everything else is just padding to disguise the starkness of the vision where pronouns, the sex indicator on your passport, the name the bank uses when they write to you, things which are supposed to reflect reality, have instead become the arbiters of it.

I’m not a women, but if I were I think I’d probably feel that the need to be represented on the boards of public bodies went a little deeper than whether Scottish Power added an ‘S’ to the end of ‘Mr’ on my account details.

Just to finish off, section 2.14 of the guidance makes it clear that this definition only applies to this act, and does not create a wider legal definition of the term. Three things to note about this:

  1. This only appears in guidance, which is…well, guidance. This guidance could be updated at any time.
  2. Once this definition is in law once it becomes easier to sneak in to other laws. Future laws just need a line in their definitions section saying “woman” is defined as per section 2 of the Gender Representation On Public Boards (Scotland) Act, and far fewer people are likely to appreciate the significance.
  3. Even if the definition does apply only to this act there is a big difference between it not creating a wider legal definition and it not being used in support of such a definition. It produces a basis to say, “Well, we did it in the Gender Representation Act, and that hasn’t caused any problems.”

Finally, section 2.15 absolves anyone of any responsibility for misuse of this new, woolly, definition. Boards aren’t required to ask anyone to prove they meet the definition, and for the individual in question, even the laughable constraints of the solemn declaration, and the penalty for making a false declaration, fail to appear.

Even after 3 days of reading the guidance I still don’t know if it was written by someone incompetent, and incapable of structuring guidance clearly, or if the intention was to deliberately obfuscate just how little the concept of womanhood means to them, but neither option is great and, it seems, either through incompetence or maliciousness, the Scottish government isn’t prepared to listen to any dissenting voices.

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