THE Scottish Government’s definition of “woman” in law is “utterly unworkable” in practice and would give rise to absurdities in daily life, Scotland’s highest court has heard.

The Government last year issued guidance about a law designed to get more women on public boards that defined women as including males who had changed gender.

The guidance was the second version issued in relation to the Gender Representation on Public Boards Act of 2018, after the first version was deemed to be unlawful.

The revised guidance was challenged by the For Women Scotland (FWS) group, who also challenged the first guidance, in a judicial review. 

Judge Lady Haldane ruled in favour of the Government, saying sex was “not limited to biological or birth sex” and could have a variable meaning depending on context.

"The revised statutory guidance issued by the Scottish Ministers is lawful,” she said.

READ MORE: Scottish Government wins case over legal definition of ‘woman’

The Inner House of the Court of Session today heard an appeal by FWS against her ruling. 

Aidan O’Neill KC, for FWS, said there was a difference between a person’s biological or “actual” sex and their “certificated” sex as stated in a gender recognition certificate (GRC).

Lady Haldane had “got it wrong”, he said, giving a series of illustrative scenarios.

Were she correct, biological men with GRCs showing a female identity could access all women shortlists used by parties to pick candidates, undermining a positive discrimination measure, he said.

Similarly, transgender women would be able to access single-sex spaces intended for biological women including rape counselling services as there would be no legitimate grounds on which to exclude them.

And he said a biological woman with a GRC showing a male gender could be denied access to a women-only obstetrics ward if they were seen strictly as a man even though transgender men can and do become pregnant.

“That’s an example of the absurdity of what happens when you substitute certificated sex for biological sex, for actual sex,” Mr O’Neill said.

The Scottish Government’s view gave rise to “an unworkable minefield, an ambulance chasers’ dream”, and ultimately gave men more rights than women, he argued.

Ruth Crawford KC, for the Scottish Government, said there was “nothing irrational or absurd” about applying the relevant law to persons “with a full GRC of the acquired female gender”.

She also noted the phrases “actual sex” and “certificated sex” used by Mr O’Neill did not appear in the legislation being considered.

She added: “One starts getting down into various rabbit holes when one tries to speculate on various hypothetical situations.” 

She urged the court to reject the reclaiming motion advanced by FWS.

The case was heard by Scotland’s second highest ranking judge, the Lord Justice Clerk Lady Dorrian, Lord Malcolm and Lord Pentland.

After both sides made their submissions, Lady Dorrian said the court would give its opinion in writing “in due course”.

Although not directly related, the case has a bearing on the Scottish Government’s challenge to Westminster’s veto of Holyrood’s recent Gender Recognition Reform Bill.

Scottish Secretary Alister Jack blocked the Bill from becoming law by issuing the first ever order under Section 35 of the Scotland Act 1998.

At the Court of Session last month, both the UK and Scottish Governments made arguments predicated on Lady Haldane’s ruling in the FWS case being correct.

If that ruling is overturned as a result of today's hearing, both governments may have to return to court to make revised arguments.