Making law in the dark

lighted candle

The Scottish Government argues that its proposed reforms to the Gender Recognition Act 2004 (GRA), which open up Gender Recognition Certificates (GRC) to a much larger, more diverse group of people, do not affect who can access to single sex spaces. This position rests on the belief that GRCs have no effect under the Equality Act 2010.

In taking this view, the Scottish Government differs from the UK Government, seen most clearly in the Ministry of Justice’s prisons policy. This treats GRC holders and non-GRC holders differently. It requires a prisoner holding a GRC to be moved into the women’s prison estate unless that person would be excluded from it if they were female (an exceptional occurrence).

4.64 The Gender Recognition Act 2004 section 9 says that when a full GRC is issued to a person, the person’s gender becomes, for all purposes, their acquired gender. This means that transgender women prisoners with GRCs must be treated in the same way as biological women for all purposes. Transgender women with GRCs must be placed in the women’s estate/AP unless there are exceptional circumstances, as would be the case for biological women.”

The Care and Management of Individuals who are Transgender UK Ministry of Justice/Prison and Probation Service 2019 (emphasis added)

The UK Government position is based on case law. The policy was upheld as lawful in a judicial review in July 2021.

HM Courts and Tribunals Service also regards a GRC as affecting a person’s status under the Equality Act 2010. Its guidance for applicants for a GRC states:

Under the Equality Act 2010, it is unlawful discrimination for a person with the protected characteristic of gender reassignment – a transsexual person, or a person mistakenly perceived to be a transsexual person – to receive unfavourable treatment because of that in employment or in the provision of services (except in some very limited circumstances).

Once a person has been granted a full GRC they have the same rights and responsibilities as their legally acquired gender. So for instance, an employer must treat a transsexual woman with a GRC in the same way as other female employees when it comes to pay. As the same Act prohibits discrimination because of sex, the employer must also treat that person, as a woman, and in a way which is no less favourably than a man.

HM Courts and Tribunals Service The General Guide for all Users Gender Recognition Act 2004 para 3.8 (T455) (2021 edition) (emphasis added)

The Equality and Human Rights Commission (EHRC) has also concluded, based on its reading of statute and case law, that GRCs are effective under the Equality Act.

“…we think that it is unlikely that a trans person without a GRC can claim direct discrimination on the grounds of gender reassignment if they are denied access to a single or separate sex service that corresponds with their lived gender…

Green [the case used in UK prison policy] is a post GRA decision which sets a precedent and is of general applicability to the question of who the correct comparator is in a direct discrimination case, rather than one which is likely to be confined to its facts.”

EHRC Letter to Translegal, July 2021 (emphasis added)

This view also underpins the Commission’s letter to the Scottish Government in January 2022, which stated that more thought was needed before proceeding with reform to the GRA based on self-declaration.

These concerns centre on the potential consequences for individuals and society of extending the ability to change legal sex from a small defined group, who have demonstrated their commitment and ability to live in their acquired gender, to a wider group who identify as the opposite gender at a given point. The potential consequences include those relating to the collection and use of data, participation and drug testing in competitive sport, measures to address barriers facing women, and practices within the criminal justice system, inter alia.

EHRC letter to Scottish Government January 2022

The Scottish Government appears to reject this position on three grounds.

  1. It rejects that it is under any obligation to engage with the legal arguments drawn on by the UK Government or the EHRC: this has been reflected in the meetings and exchanges of correspondence we have had with officials, as recorded here.
  2. It believes that a GRC is not a requirement for access to single sex spaces, where circumstances permit such access based on the characteristic of gender reassignment. The EHRC and the UK Government take the same view but they interpret the law as meaning that a GRC strengthens this right. However, the Scottish Government rejects the need to consider this second leg as a possibility.
  3. Under the Equality Act, it is possible to exclude people with the characteristic of gender reassignment from single sex spaces whether or not they have a GRC. Again the UK Government and EHRC agree: but their reading of law gives GRC holders more direct and therefore stronger grounds to challenge exclusion. Again, the Scottish Government sees no need to engage with this point.

If GRCs are to be extended to a larger, more diverse group of people, as is proposed in the draft Gender Recognition Reform (Scotland) Bill, this difference of opinion matters. In practice, this point only appears capable of being settled in the courts, if and when a GRC holder in Scotland who believes the Scottish Government is wrong brings a case.

For example, under prison policy in Scotland, prisoners may be accomodated according to their self-declared gender identity, subject to an individual risk assessment. At the moment a GRC carries no weight in Scottish prisons; moreover GRC numbers are low enough that it may never have arisen as an issue. However if the threshold for obtaining a GRC is lowered, it becomes much more likely that the prison service in Scotland will be faced with cases which test whether or not a GRC matters arises when a GRC holder is refused a move. The Scottish Prison Service GRC-blind policy is therefore always potentially one judicial review away from requiring rewriting. It might be successfully defended in court, or it might not. The latter outcome would draw on existing case law that the Scottish Government believes to be irrelevant, but has declined to explain why.

There are more complex arguments about the exemption that enables providers to adopt an approach based purely on sex as a biological characteristic, when and how this can be done, and even more complex ones about how legal uncertainty in this area makes service providers reluctant to apply the exemption.

But the existence of a fundamental conflict of opinion on the effect of a GRC under the Equality Act – not just on Twitter, or among academics – but between the Scottish Government and the UK Government, HM Courts and Tribunals Service and the EHRC, needs to be spelt out before this debate progresses further. As the EHRC has said in a more recent letter to the Scottish Government:

The divergence of views is in part related to different understandings of the effect of the law, and in part to the impact of potential changes to the law, including on service providers and data users. It is also related to disputed terminology, which has evolved significantly since the GRA was passed in 2004. This has resulted in increasing numbers of court cases to resolve contested claims, with jurisprudence still evolving around use of the terms sex and gender, for example.

Letter from the EHRC to the Cabinet Secretary for Social Justice, Housing and Local Government 4 February 2022

Legislating under conditions where some aspect of legal interpretation is uncertain is not unusual. Here, however, an assertion of certainty where it does not exist is central to the Scottish Government’s case that extending who is entitled to a GRC will not affect who has access to single-sex spaces. MSPs are being expected to make law in the dark.

Note: There is no dispute that a GRC confers enhanced rights protecting the sharing of information about a person’s past identity, under Section 22 of the Gender Recognition Act. This raises further questions for the operation in practice of single sex services and roles, which are not considered here.

Note added 17 March 2022

An FoI response from 2018 now drawn to our attention shows that in a meeting with the Scottish Government in 2017, the Equality Network/Scottish Trans Alliance described the wording of the Gender Recognition Act 2004 as being deliberately designed to ensure that service providers would be under additional obligations to treat GRC holders as the sex on their GRC rather than their sex at birth (by direct implication under the Equality Act, as the legislation permitting rules based on sex to to be applied by service providers in some circumstances). The Scottish Government is shown accepting this argument: the Bill as consulted on and introduced retains the same wording for Section 9.

At Monday’s meeting, EN/STA set out why they are content with the terms sex and gender being used interchangeably [in Section 9 of the GRA]. When the GRA 2004 was being developed, Press for Change suggested the wording used in section 9 where sex and gender are used interchangeably. [redacted] advised that this was intentional in order to prevent trans people from being discriminated against in terms of their sex. Their view was that there was a risk that service providers, etc. would say something along the lines of “the act means we recognise your acquired gender identity, however, your sex hasn’t changed” and trans people would still be denied services.

Internal Scottish Government email 1 September 2017 10:39, SG FoI release p49

Legislation might conflate sex and gender – as we discussed at the meeting with the EN/STA, the GRA does exactly that but it does it for policy reasons.

Internal Scottish Government email 1 September 2017 18:09 SG FoI release p48

These statements cannot be easily reconciled with assertions by either the Scottish Government or groups in support of its proposals that GRCs are irrelevant to the operation of the Equality Act.