Supreme Court’s Judgement in relation to the Gender Representation on Public Boards (Scotland) Act 2018: FOI release

Information requested

Please can you provide any draft statement and guidance provided to Shirley-Anne Somerville relating to the Ministerial Statement titled: ‘The Supreme Court’s Judgement in Relation to the Gender Representation on Public Boards (Scotland) Act 2018.’

Response

The Cabinet Secretary for Social Justice delivered a statement to the Scottish Parliament on the outcome of the UK Supreme Court’s judgment in relation to the Gender Representation on Public Boards (Scotland) Act 2018.

A full transcript of the statement, along with answers to questions from MSPs following the statement, can be found in the Official Report, which you can access here: Meeting of the Parliament: 22/04/2025 | Scottish Parliament Website

A recording of the statement can be found in the Scottish Parliament TV archive, which you can find here: Ministerial Statement: The Supreme Court’s Judgment in Relation to Gender Representation on Public Boards (Scotland) Act 2018 | Scottish Parliament TV.

In assessing your request, I have concluded that when you have asked for “guidance”, you are asking for any associated briefing provided to the Cabinet Secretary for Social Justice for the statement. I have therefore provided you with this material, subject to exemptions under the Freedom of Information (Scotland) Act 2002 - known as FOISA.

An exemption under section 38(1)(b) (Personal Information) of FOISA applies to some of the information you have requested. This has been applied to names, email addresses, contact numbers, pronouns and salutations where necessary. This exemption is not subject to the ‘public interest test’, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

Exemptions under section 30(b)(i) (free and frank advice) of FOISA apply to some of the information you have requested. These exemptions apply because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice and exchange of views for the purposes of deliberation. The exemptions recognise the need for Ministers to have a private space within which to seek advice and views from officials before reaching the settled public position which will be given in whatever final lines to take are used. Disclosing the content of free and frank briefing material on advice or views will substantially inhibit such briefing in the future. These exemptions are subject to the ‘public interest test’. Therefore, taking account of all the circumstances of this case, we have considered if the public interest in disclosing the information outweighs the public interest in applying the exemptions. We have found that, on balance, the public interest lies in favour of upholding the exemptions. We recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can provide free and frank advice and views to Ministers in briefing. It is clearly in the public interest that Ministers can properly provide sound information to Parliament (to which they are accountable), and robustly defend the Government’s policies and decisions. They need full and candid advice from officials to enable them to do so. Premature disclosure of this type of information could lead to a reduction in the comprehensiveness and frankness of such advice and views in the future, which would not be in the public interest.

An exemption under section 25 (information otherwise accessible) of FOISA applies to some of the information. These exemptions apply information from disclosure where the requester can reasonably obtain the information without making a request for it. The information exempted under section 25 of FOISA within the material you have requested can otherwise be found below:

• BBC Radio 4 FM - Schedules, Thursday 17 April 2025
• Scottish Government needs to get a grip in face of legal threats
• Fergus Ewing MSP on X: "Revelations today that not a single health board in Scotland has a policy for single sex changing rooms is shocking - and illegal. The Scottish Government must address this and issue orders to fix it. They have the legal powers to do so." / X
• How the gender self-ID ‘disaster’ could get worse for the SNP
• Emma Roddick MSP on X: "Work is ongoing across the country to determine the full impact of this week's Supreme Court ruling and next steps; I'll remain an ally through this process. Some trans and non-binary constituents have already reached out - this is welcome and I'll do what I can to support you. https://t.co/d8ZhgzzL6I" / X
• Joanna Cherry demands apology from Nicola Sturgeon over gender ruling | The National
• Russell Findlay MSP on X: "Anas Sarwar’s Labour voted FOR Nicola Sturgeon’s divisive and dangerous gender self-ID law. So he’s got some front peddling this ridiculous rewriting of history Does he think the people of Scotland are stupid?" / X
• Murdo says NHS Fife must now concede Sandie Peggie case following landmark Supreme Court judgement | Murdo Fraser
• SNP must use Supreme Court ruling statement to “ditch gender self-ID agenda for good”
• Dr Pam Gosal MBE MSP on X: "Today's monumental decision from the Supreme Court makes it clear that the word 'woman' refers to biological females. The Scottish Government must now do its part to protect the rights of women and girls, especially when it comes to single-sex spaces and services. https://t.co/gvqc4gdQjE" / X
• Anas Sarwar on X: "I’ve always called for the protection of single sex spaces on the basis of biological sex. This judgment gives clarity to women and service users about the protections in the Equality Act. The SNP Government must provide clear guidance for Scottish public services so they can" / X
• Supreme Court verdict on women and Equality Act: Government welcomes 'clarity' but Labour tensions flare - LabourList
• The SNP Government wasted an enormous amount of money on their gender crusade - Daily Record
• Trans rights: Supreme Court ruling deeply concerning for human rights - Scottish Greens
• ‘Politicians who didn’t stand up for women should hang their head in shame’
• Our enforcement powers | EHRC
• Oral Answers to Questions - Hansard - UK Parliament 

If you are unhappy with this response to your FOI request, you may ask us to carry out an internal review of the response, by writing to the Director for Equality, Inclusion, and Human Rights DirectorforEIHR@gov.scot. Your review request should explain why you are dissatisfied with this response, and should be made within 40 working days from the date when you received this letter. We will complete the review in accordance with FOISA as soon as possible, and not later than 20 working days from the day following the date we receive your review request.

If you are not satisfied with the result of the review, you then have the right to appeal to the Scottish Information Commissioner. More detailed information on your appeal rights is available on the Commissioner's website at: What can I do if I'm unhappy? | Scottish Information Commissioner (itspublicknowledge.info)

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FOI 202500462630 - Information Released - Annex

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