What is the Future for the Gender Recognition Reform (Scotland) Bill?

The Prime Minister and the Secretary of State for Scotland have now confirmed that they will use their constitutional powers to stop the Gender Recognition Reform (Scotland) Bill (the Bill).

The Bill has already attracted a lot of column inches. It is a highly divisive and a legally complex matter which has left many people asking what all the fuss is about.

What is the Scottish bill?

Shortly before Christmas, the Scottish Parliament voted in favour of controversial plans to introduce a self-identification system. The purported aim is to simplify the process of transitioning because it believes the current process is too difficult, invasive and distressing for the trans community by doing the following:

lowering the age when a person can apply for a Gender Recognition Certificate (GRC*) from 18 to 16;
removing the need for a gender dysmorphia diagnosis, meaning that applicants will only need to have lived in their acquired gender for three months – or six months if they are aged 16 and 17, rather than the current two years.

The Gender Recognition Reform Bill provides for a three-month reflection period where a person can change their mind and it will be a criminal offence to make a false declaration or application for a GRC.

Supporters of the plan have said that these changes will allow those transitioning to live with dignity and provide them the recognition they deserve.

However, those opposed to the plans have said the impact of the Bill has not been properly assessed and that protecting the human rights of the trans community should not come at the expense of compromising other people’s rights – namely safeguarding the rights of women.

the nuclear option

On 16 January 2023, the UK government took the unprecedented move to block the Gender Recognition Reform Bill under section 35 of the Scotland Act 1997. This prevents the Bill from getting Royal Assent on the basis that the Bill has an adverse effect on the operation of UK equalities legislation as it applies to reserved matters. Simply put, sex is integral to many laws in the UK. As a result, the Bill would conflict with UK equalities legislation because the GRC operates to change a person’s sex for ‘all purposes’ and will therefore change the meaning of ‘sex’ in any legislation including that which falls within the jurisdiction of the UK.

Additional concerns have also been raised about fragmentation and the confusion this will cause for service providers and users, in particular, in relation to the operation of single-sex services where those with certificates move from Scotland to the UK where different systems and benefits will be in place.

A section 35 order has never been used before and is considered by many, especially those in support of devolved Scottish power, as a nuclear option. The intervention has prompted clashes between the UK and Scottish governments and Nicola Sturgeon has stated that this is a ‘full frontal attack’ on the Scottish Parliament.

This was a bold move by the UK government and one that was not immediately anticipated. The Scottish Government has stated it will ‘defend the legislation and stand up for Scotland’s Parliament’ on the basis that ‘if this Westminster veto succeeds, it will be the first of many.’

It is clear that this debate is set to continue. Watch this space and we will keep you updated.

*The Gender Recognition Act 2004 provides for the acquisition of a certificate to change a person’s sex for all legal purposes. The legal document allows a person to update their birth/adoption certificate, get married or form a civil partnership in their affirmed gender and have their acquired gender recorded on their death certificate.

This blog was written by Anita Vadgama and Elizabeth McGlone, Partners at didlaw