Reform ‘under the radar’? Lessons for Scotland from the Development of Gender Self-Declaration Laws in Europe

Reform ‘under the radar’? Lessons for Scotland from the Development of Gender Self-Declaration Laws in Europe will be published in the forthcoming edition of  Edinburgh Law Review vol. 24 (2): pp 281-289. May 2020

An advance copy is available here:
Reform ‘Under the Radar’. Advance copy 7 May 2020.

Both the Scottish and UK Governments have recently consulted on proposals to amend the Gender Recognition Act (GRA) 2004 that would enable someone to change their legal sex simply by making a statutory declaration. We were among those who responded to the consultation expressing concern that the Scottish Government’s proposals failed to recognise a conflict with women’s sex-based rights as enshrined in the Equality Act 2010.

In its consultation, the Scottish Government relied heavily on a narrative of ‘international best practice’ as a rationale for reform, citing non-binding legal instruments, whilst conceding that current arrangements for changing legal sex are compliant with recent rulings from the European Court of Human Rights.

Our analysis suggests that those jurisdictions in Europe who have already introduced self-declaration models for legal sex change have tended to do so with very little public scrutiny. A report prepared by international law firm Dentons aimed at those advocating for self-declaration stated that pursuing reform ‘under the radar’ (in its own words) had been a deliberate strategy in Ireland, and advised that proponents of reform should seek to avoid media coverage and ‘latch  trans  rights  legislation  onto  more  popular  legal  reforms’ – such as same-sex marriage.

We argue that the pace and breadth of the uptake of these laws may be attributable to a process of policy capture, whereby policymaking is skewed in favour of one particular interest group at the expense of others. There are lessons here for the UK and Scottish Governments as they consider reforms to the GRA. Both should seek to secure broad-based support for any reforms, and consider potential effects on other rights-holders, not least women.

(We previously published Losing sight of women’s rights: the unregulated introduction of gender self-identification as a case study of policy capture in Scotland in the August 2019 edition of Scottish Affairs. An open access version of this paper can be found here.)

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