A SENIOR lawyer has told a judge that a Scottish Government plans to expand the legal definition of the word ‘women’ breaches existing equalities laws.

Aidan O’Neill QC told Lady Wise on Thursday how plans to amend a piece of legislation called the Gender Representation on Public Boards (Scotland) Act 2018 is unlawful. 

The advocate said that government proposals to amend the legislation which would allow for trans people to have greater representation on public boards - cannot be sustained in law. 

Mr O’Neill is acting for an organisation called For Women Scotland who have launched a judicial review at the Court of Session in Edinburgh against the proposal. 

The group is concerned that the proposal breaches equality legislation. For Women also believes that the Scottish Government is unable to legislate on the matter as equal opportunities are supposedly a reserved matter for the UK Parliament at Westminster.

The Scottish Government believes the legislation needs to be amended to ensure more equal representation of trans people on public boards. 

However, on Thursday, Mr O’Neill said the government’s plans would breach the terms of the Equality Act 2010. 

Mr O’Neill said the Scottish Government lacked the power to amend the Equality Act and their proposal couldn’t be placed in law. 

He added: “I say it is important to recognise that the Scottish Parliament provisions would run wholly against the grain of the Equality Act. 

“My learned friend would say ‘there is no obligation to go with the grain of the Equality Act’ - well there is if in so far as the fact that these provisions are reflective of the limits which EU Law allows one to do.

“And in fact as I say the fundamental problem for the respondents is that the exception to the general equality opportunity reservation simply does not authorise the Scottish Parliament or Scottish Ministers to modify it or supplement the Equality Act in any way.

The petition brought by For Women Scotland claims the planned redefinition of "woman" breaches the Equality Act 2010 and decades of anti-discrimination law. 

It maintains that equal opportunities law is reserved to the Westminster Parliament. It claims that the government failed to assess the impact of applying the new law "on the need to advance equality between women and men, or consider the need to foster good relations".

The group has decided to launch legal action after Scottish Ministers informed them earlier this year that it believed that it was able to amend the legislation as 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 that one of these characteristics protects people against sex discrimination. 

The Equality Act defines sex as being either male or female, or a group of people like men or boys, or women or girls.

Mr O’Neill also said that the case law on sex discrimination defined women on the basis of unique biological features - such as fertility. 

He said that another protected characteristic under the act 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 undermined the rights women had under the Equality Act. 

He added: “What has happened in this case is the assumption is made that born men who have the protected characteristic of gender reassignment are equivalent 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 which has been made without examination and we see that when we look at the underlying consultations and discussions - the presumption which has been made - there has never been any examination of it - there has never been a factual look which says - ‘look we have this group - born men - who have the protected characteristic of gender reassignment. ‘Isn’t it interesting our research has shown that they are in the exactly same position as born women who do not have the protected characteristic of gender reassignment for the purposes of representation as non executive members on public boards.’ 

“Therefore we are going to use exactly the same measures for them by combining them into this new definition which we will happen to call for convenience women’ 

“But we have to be clear as to what our groups are and we have to work that out. But what’s happened for whatever reasons is that there has been without thought, without reason and without factual evidence an equation of two distinct groups who do not share the same protected characteristics as being the same.”

He also said that the ministers made an error with the proposed amendment.

He added: “That’s what has caused the problem. There would be nothing wrong with this act were it to have stuck with the definition of women as allowed for under section 11 of the Equality Act.”

The hearing, which is scheduled to take place over two days, continues this afternoon when it is expected the Scottish Government will reply to Mr O’Neill’s submissions.