Gender Recognition Reform (Scotland) Bill: Use of Scotland Act Powers

9th January 2023 • Gender recognition

We have written to the Secretary of State for Scotland asking the UK government to take whatever action it believes it needs to, to ensure that protections for women and girls in Scotland provided under UK law and international human rights obligations are not put at risk by the Gender Recognition Reform (Scotland) Bill (GRR).

The role of the UK government

People with highly divergent views on the larger constitutional question are concerned that this legislation has wider effects than claimed and want the UK Government to use its powers to ensure that there are no adverse effects on important legal protections provided under reserved law or human rights obligations. They are united by a desire to avoid constitutional point-scoring. Any intervention must be justified under the terms of the relevant parts of the Scotland Act 1998. Attempts by others to present this as a Scotland/UK constitutional issue should be met with scepticism and such a framing should be avoided by the UK government.

The role of the Scottish Government and Parliament

The Scottish Government and the Scottish Parliament could have avoided many of the issues discussed here, by making changes which were proposed to both, before and after the Bill was introduced.

For reasons left unclear, the Scottish Government approached legislating for gender recognition by making complex amendments to the 2004 Act, rather than bringing forward a new free-standing statute for Scotland. It asserted throughout the process that the Bill is specifically intended to grant access to gender recognition certificates (GRCs) with identical effect to those issued under the existing Act. The effect of this has been to leave unresolved ambiguity at the boundaries of the devolution settlement, whether intentionally or otherwise. Concern about the limits of its competence here may have played a part in the Scottish Government’s decision to use the convoluted approach of amending the 2004 Act, rather than adopting the model of a new free-standing Scottish statute. The latter would have been simpler for MSPs (and others) to scrutinise and resulted in a more straightforward legal framework for users.

The Equality Act 2010

Following the judgment obtained by the Scottish Government in FWS vs The Scottish Ministers, issued on 13 December, the legal position is that a GRC grants a change of sex under the Equality Act. The Scottish Parliament agreed the Bill fully aware of this, and chose not to pause to consider the implications of the judgment for the proposals in the Bill.

If GRCs issued under the Bill have the effect of changing a person’s sex for the purposes of the Equality Act, it will have significant implications for the practical operation of the Equality Act in relation to sex. Any existing effects related to GRCs will be greatly magnified by the Bill’s expansive, low regulation, and largely non-falsifiable approach to issuing GRCs, to the point of a substantial change in effect.

The extent of the Scottish Parliament’s ability to pass legislation affecting gender recognition in reserved areas, including the Equality Act, is therefore a serious and significant matter, with implications going well beyond individual GRC holders.

Gender recognition is not a reserved topic, but it is clear that in 2004 there was a consensus inside and beyond Holyrood that the Scottish Parliament was not able to pass legislation granting gender recognition for reserved purposes. The Scottish Government has not explained at any point during the Bill process whether it believes the view taken in 2004 was incorrect and, if so, why.

Ministers could have addressed some of the anxiety created by the Bill if they had been prepared to clarify that a Scottish GRC would not affect a person’s sex under the Equality Act. Instead, their actions in handling the Bill and in court have had the opposite effect.

The Scottish Government’s decision to extend the existing heightened privacy protection in Section 22 of the GRA 2004 to a much larger, more varied group of Scottish GRC holders is also relevant to the operation of the Equality Act. The Scottish Government could have amended s22 to protect the operation of the Equality Act and take into account that access to GRCs from age 16 will make these relevant to school pupils, for the first time. It chose not to, while relevant proposed amendments to this section were rejected as inadmissible.

ECHR and other international obligations

Separate from the Equality Act, we draw attention to the impact on women in prison in Scotland, as an issue of human rights, under Article 3 of the ECHR and other international instruments. Prisons are specifically covered by separate, devolved legislation (the Prison Rules). We are particularly concerned that throughout the GRR Bill development process the Scottish Government refused to engage with the argument that a GRC may strengthen a prisoner’s right of transfer to accommodation used by prisoners of the opposite sex. Attempts to amend the Bill to rule out definitively any effect in prisons were rejected.

Compared to the current arrangements, the GRR Bill largely cedes any control over the number and nature of male prisoners able to obtain a change of legal sex and makes it possible to achieve that much more quickly. We believe that the GRR Bill exposes women in prison in Scotland to new, excessive, undue, fully avoidable risk of being “subjected …to inhuman or degrading treatment or punishment” (ECHR, Article 3).

We are similarly concerned about the impact on searching policies in prisons and other settings; on intimate care for vulnerable women; on the ability to maintain single sex hospital wards, including in psychiatric units, inter alia. Some of these impacts would cease to be relevant if a Scottish GRC conferred no change of status under the Equality Act, but not all would.

The basis for intervention: relevant powers

The ability of the Scottish Parliament to confer a change of sex for reserved purposes raises a novel devolution issue. UK Ministers could refer this to the Supreme Court for clarification, under s33 of the Scotland Act, as a first step. A ruling could also reasonably be sought on the Scottish Government’s assertion that the Bill has no effect outside Scotland. The outcome of such a referral would clarify the basis for using powers under s35 of the Scotland Act.

However, the judgements here are finely balanced and undoubtedly complicated by the Scottish Government’s decision to adopt the unduly complex model of amending the existing UK Act, which at minimum might be deemed to complicate the use of s33. We recognise that that, and other legal and practical considerations beyond what we have been able to consider, might argue instead for pursuing a s35 Order directly, to focus on the impact of the Bill on operation of reserved matters, not least the Equality Act, in Scotland and elsewhere in the UK, in the light of the recent court ruling obtained by the Scottish Government.