Gender Representation on Public Boards (Scotland) Act 2018: statutory guidance

Terminology used in the Act

2.1 This section considers some of the key terms and concepts in the Act.

The gender representation objective

2.2 Section 1 of the Act sets a "gender representation objective" that a board has 50% of non-executive members who are women. Where a board has an odd number of non-executive members, the objective applies as if the board has one fewer non-executive member.

• If a board has 12 non-executive members, the gender representative objective is that the board has 6 non-executive members who are women.
• If a board has 9 non-executive members, the gender representation objective applies as if the board has one fewer non-executive member – in other words as if the board has 8 non-executive members. Consequently, the gender representation objective is that the board has 4 non-executive members who are women.

2.3 The gender representation objective is not a cap. The Act does not require board non-executive membership to be precisely 50:50 men and women and it does not prevent a board having more than 50% of non-executive members who are women. A board with more than 50% of non-executive members who are women has met the objective.

Public Authority and Appointing Person

2.4 The Act places duties on public authorities and appointing persons to take action to achieve the gender representation objective.

2.5 For the purposes of the Act, "public authority" means an authority listed, or within a description listed, in schedule 1. This list is reproduced in the Annex to this guidance.

2.6 The "appointing person" is the person who has the function of appointing a non-executive member of a public board. In this context, the word "person" may mean the organisation or position which makes the appointment. For many public authorities, the appointing person is "the Scottish Ministers". The Annex lists who the appointing person is for all of the public authorities covered by the Act.

Public Board

2.7 The gender representation objective applies in relation to the non-executive members of public boards. The Act defines a public board as:

• if the public authority is a company, the directors;
• if the public authority has a statutory board or other equivalent statutory management body, that board or body;
• in relation to any other public authority, the membership of the authority.

Excluded Positions

2.8 The gender representation objective only covers certain non-executive members of a board. Section 2 of the Act defines "non-executive member", in relation to a public authority, as "a position on its public board-

(a) that is not an excluded position,

(b) that is not held by an employee of the authority".

2.9 Section 2 of the Act defines an "excluded position", in relation to a public authority, as "a position mentioned in the second column of the table in schedule 1 which corresponds with the public authority mentioned in the first column".

2.10 Public authorities listed in schedule 1 of the Act and appointing persons for public authorities listed in schedule 1 of the Act, should determine which members of their board are "non-executive members" for the purposes of the Act. It is important that there is no ambiguity about whether or not an individual board member is a "non-executive member" as this forms the basis on which the gender representation objective is calculated.

2.11 Moreover, no action is required under the Act in relation to members who are not "non-executive members" for the purposes of the Act.

The definition of 'woman' for the purposes of the Act

2.12 Section 2 of the Act provides that for the purposes of the Act, "woman" includes "a person who has the protected characteristic of gender reassignment (within the meaning of section 7 of the Equality Act 2010^[2]) 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".

2.13 To be included, a trans woman without a UK Gender Recognition Certificate or without gender recognition from another EU Member State^[3] must therefore meet the 3 following criteria:

1. have the characteristic of gender reassignment as defined in the Equality Act 2010.

The definition of gender reassignment in the Equality Act 2010 is – "a person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex". This definition includes those reassigning their sex from male to female as well as those reassigning their sex from female to male. A person who meets this definition is not covered by the definition of "woman" in the Act unless they also meet the following two criteria. The person does not need to have undergone any specific treatment or surgery^[4]

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

This element of the definition means that a person with the protected characteristic of gender reassignment is only covered if they are proposing to undergo, is undergoing or have undergone a process to reassign their sex to female. A person reassigning their sex from female to male would not be included in the definition of woman for the purposes of the Act.

3. be living as a woman

This would not require the person to dress, look or behave in any particular way. However, it would be expected that there would be evidence that the person was continuously living as a woman, such as – always using female pronouns; using a female name on official documents such as a driving licence or passport, or on utility bills or bank accounts; using female titles; updating the gender marker to female on official documents such as a driving licence or passport; describing themselves and being described by others in written or other communication as a woman.

2.14 This definition in section 2 provides clarity that, for the purposes of applying the provisions of the Act, "woman" includes a trans woman who meets the definition set out. This provision only relates to the meaning of "woman" in the Act. This does not have the effect of creating a new legal definition of woman in any other context.

2.15 The Act does not require an appointing person to ask a candidate to prove that they meet the definition of woman in the Act.