A Scottish Government consultation on Implementation of the Gender Representation on Public Boards (Scotland) Act 2018

The purpose of the Gender Representation on Public Boards (Scotland) Act 2018 (“the Act”), is to improve the representation of women on the boards of Scottish public authorities. It sets a gender representation objective for the non-executive member component of public boards. The objective is that 50% of non-executive members are women, and it requires appointing persons and public authorities to take certain steps towards achieving the objective.

We asked for your views on the implementation of the Act, and more specifically on two of its elements:

• Draft regulations setting out the arrangements for reporting on progress under the Act.
• Draft statutory guidance on the operation of the Act.

In total, we received 310 responses, from 272 individuals and 38 organisations.

Support for the proposals

There was overall support for the majority of the proposals in the consultation, including:

•           The proposed reporting timescales for appointed persons and Scottish Ministers reporting to Parliament.

•           The proposals for what should be included in the content of the reports from appointed persons and Scottish Ministers.

•           The proposed guidance on the overall process.

Reporting

There was a mixed response to aligning the reporting timescales with the Public Sector Equality Duty (PSED) and within the PSED mainstreaming report. Only 42% of respondents supported the inclusion of the reports required by the Act within another report. This compared with 24% of respondents that did not support this proposal. Regardless of their support for the proposal itself, the majority of the respondents expressed concern that including these reports within another report may reduce the accessibility and transparency of them.

Sex and Gender

A lot of consultation respondents were individuals who expressed concerns regarding the definition of ‘woman’ and the use of the term ‘gender’ in the Act and the draft regulations.

It was the opinion of those respondents that, generally, the Act had extended the legal definition of woman beyond the Equality Act 2010. It was recommended by most respondents that the Act should replace the term “gender” with “sex” and that it should apply to trans persons according to their sex recorded at birth and not their gender identity.

According to some respondents, the use of the term gender in place of sex in the Act:

• did not comply with the Equality Act 2010 which provides that sex, not gender, is a protected characteristic
• was open to abuse and would disadvantage women
• would make the data collected less reliable

In relation to views shared on the terminology used in the 2018 Act, including the definition of “woman” at section 2, this was not in scope of the consultation, which sought views on draft regulations to make arrangement for reporting on progress under the 2018 Act and draft guidance on the operation of the 2018 Act, because the 2018 Act had already received Royal Assent.

We commissioned an independent analysis of the responses to the consultation by EKOS consultants. We published the consultation analysis on the Scottish Government website on 3 April 2020 and it can be viewed here:  Gender Representation on Public Boards (Scotland) Act 2018 implementation: consultation analysis.

We laid the Gender Representation on Public Boards (Scotland) Act 2018 (Reports) Regulations 2020 before the Scottish Parliament on 3 April 2020 and the regulations came into force on 29 May 2020.

We published Statutory Guidance on the Gender Representation on Public Boards (Scotland) Act 2018 in June 2020 to support appointing persons and public authorities to carry out their functions under the Act.

We published revised Statutory Guidance on the Gender Representation on Public Boards (Scotland) Act on 19 April 2022 to accord with the court order following a hearing on 22 March 2022 in relation to the case For Women Scotland Ltd v The Lord Advocate and The Scottish Ministers.