Naomi Cunningham contributes to the latest edition of DLA Briefings – Scottish court rules on the meaning of ‘sex’

Discrimination law specialist Naomi Cunningham was invited to write an article for Discrimination Law Association Briefings on the Scottish court ruling on the meaning of ‘sex’.

Naomi’s article highlights the issue that, under the Scotland Act 1998 (the Act), any provision of legislation passed by the Scottish Parliament is of no effect in so far as it is ‘outside the legislative competence of the Parliament’; a provision is outside the legislative competence of the Parliament if it relates to reserved matters. Equal opportunities is a ‘reserved matter’ by schedule 5 to the Act, but that reservation is subject to certain exceptions, one of which relates to ‘the inclusion of persons with protected characteristics in non-executive posts on boards of [a defined class of] Scottish public authorities’.

The Scottish Parliament passed the Gender Representation on Public Boards Act 2018 (GRPBA 2018) purporting to make use of that exception. The Act defined a ‘gender representation objective’ for Scottish public boards that 50% of its non-executive members should be women, and required preference to be given to female candidates for such roles under certain conditions.

This is followed by Naomi’s comments and conclusion on the matter. To view the full article, first published in DLA Briefings July 2023 (Volume 79), please click here.

Find out more

Naomi Cunningham is a barrister specialising in discrimination law. She accepts instructions in goods and services discrimination as well as in the full range of employment matters. In recent years, Naomi has developed a particular interest in gender reassignment discrimination, the interaction between the Equality Act and the Gender Recognition Act, the single-sex exceptions in the Equality Act and public sector equality duty. 

To find out more, contact Nick Levett on +44 (0)20 7427 4908 or Mark Gardner +44 (0)20 7427 4909 for a confidential discussion.

External Publications 18 Jul, 2023