The limits of the Lord Falconer thread
On the afternoon of Tuesday 17 January, the UK Government published its “Statement of Reasons for making an order under s35 of the Scotland Act 1998“, preventing the Gender Recognition Reform (Scotland) Bill from going for Royal Assent.
Within hours, Lord Falconer of Thoroton tweeted a thread arguing that “The Statement of Reasons did not justify the use of s35”. This thread captured widespread attention, on social media and in the press. Lord Falconer is a major Labour Party figure. He was Solicitor General for England and Wales, later Lord Chancellor and Secretary of State for Justice in the Blair government from 2003 to 2007. During that period, he was closely involved with the passing of the Gender Recognition Act 2004. Most recently, he was Shadow Attorney General, from April 2020 to November 2021.
Given Lord Falconer’s standing, for many people either already inclined to agree with him here, or without a strong view, he will reasonably be seen as an authoritative figure. This blog analyses Lord Falconer’s thread and argues that it does not stand up well to detailed scrutiny, although there are a couple of points that might be usable in any case the Scottish Government brings.
The s35 Statement of Reasons has now been published. It identifies 3 sets of reasons why the Sec of State considers the GRR Bill would have an adverse effect on the operation of reserved matter law namely equal opportunities.
First because the Scottish GRC will only be recognised in Scotland and therefore someone could be one gender in Scotland and another in the rest of the UK. This could lead to administrative difficulties for example in the administration of benefits.
Comment: This refers to the dual gender recognition systems that would result from the Bill (England and Wales, Scotland) and the impacts on ‘administration of tax, benefit and State pensions managed by integrated systems across the UK that span reserved and devolved functions’.
Lord Falconer does not comment on other potential difficulties cited, in relation to UK-wide single-sex club or associations (differing membership criteria either side of the border), the operation of the Public Sector Equality Duty (PSED) for cross-border authorities, and equal pay comparators.
All the problems in the UK Government’s Statement of Reasons can be related back to the Scottish Government’s desire to issue GRCs of identical effect to those issued under the current Act, with effects for both devolved and reserved purposes. Surprisingly, given his past involvement in the 2004 Act, Lord Falconer does not explain this to his readers. The 2004 Act was agreed at the time as UK-wide legislation specifically to avoid perceived problems with having separate Scottish legislation that could not cover reserved areas, benefits among them (for a detailed historical record, see here).
The administrative difficulties obviously have to be balanced against the benefits to be obtained to the trans community in having much easier access to GRCs. The level of administrative difficulty will depend on the increase number of Scottish GRCs being issued.
Comment: The Secretary of State must have a reasonable belief of adverse effects. There is no requirement in law to balance that against any other consideration: that might be arguable as a policy issue, but the thread is presented as an analysis of the legal position.
Scottish Ministers estimated there would be an annual increase from 30 to 250/300. SOS says the figure is uncertain but that the country with the closest system to the GRR has an average of 550 per year. Even taking the figure of 550 the administrative difficulties are minimal.
Comment: Lord Falconer’s argument hangs principally on his estimate of around 550 GRC applicants. From herein the analysis also appears to assume a total of around 525 GRCs will be issued (see tweets 5, 7, 14, and 17 for this figure). The number he quotes and relies on throughout the thread appears to be used to mean both annual applicants and the total number of people expected to have a GRC under the new system. The second of these is the figure that will matter here.
The Scottish Government estimates around ten times the current level of take-up of GRCs (implying around 6,000 GRC holders in total, once fully taken up). The UK estimate is just under 20 times (implying around 11,000).
In the Stage One debate, Cabinet Secretary Shona Robison estimated that there are around 25,000 trans people in Scotland. That would be consistent with the 0.5% obtained in the census in England. The Scottish Government’s estimate of a ten-fold increase (6,000) therefore seems to assume surprisingly low take-up, given its justification for the changes by the importance of obtaining a GRC to this group and its confidence that it has removed any major barriers.
Data from the 2021 England and Wales Census indicate that of those identifying as trans prepared to provide at self-description (just under half of those in this group did so), two-thirds had an identity relevant to a GRC, that is, man or woman; the Bill does not introduce a new non-binary GRC. Applied to the figure of 25,000, that would suggest around 16,000 potential applicants in Scotland. The total derived from UK government estimate of annual applications then looks like a rational estimate of eventual total take-up, given the justifications presented for the reforms.
If, as the Scottish Government predict, there is pent up demand for GRCs, applications would be expected to skew to the early years, even if they eventually settle down to a steady state at around the level predicted.
It appears to us that where Lord Falconer’s argument implies he is discussing the total number involved, his figure of 525 should be replaced with one upwards of 10,000 (or half that, when considering effects on one sex only). That makes no allowance for any GRCs obtained successfully by people who would not identify as trans. It should also be stressed these are only estimates, based on other jurisdictions. Take-up in Scotland compared to other countries will be influenced by differences in levels of public awareness, for example. It should also be noted that self-declaration systems in other countries have typically been brought in with lower level of public awareness. After the UK Government reduced the fee for a GRC from £140 to £5 in April 2021, the number of applications doubled, compared to the same period the year before (MoJ statistics).
In any event that is The nuclear option of s35 couldn’t reasonably be triggered by the administrative inconvenience (which would be unlikely to apply in most cases) of having special files for 525 people’s benefit records.
Comment: Lord Falconer assumes there are no major obstacles to maintaining ‘special files’ for whatever proportion of GRC holders make use of the benefit system (this includes pensions). This does not acknowledge that in IT systems, the size of a population tends to be less of a factor than the need to build separate arrangements. In this respect, he overlooks detailed comments in the Statement of Reason. It notes:
‘Those responsible for [IT] systems consider that it may be unmanageable, even with considerable time and expense,[footnote 4] to build system capability to manage a dual identity for the same individual if someone’s legal sex could be different in Scots law and the law for England and Wales’.
Footnote 4 states: If the Bill were enacted, HMRC would need to explore whether consequential changes to IT infrastructure were possible. Changes to HMRC IT can have consequential impacts on other departments due to integrated systems.’
However, the Scottish Government might ask how far the practical implications for the delivery of benefits, even if more complicated than Lord Falconer allows for, create a legal argument. If they are unmanageable, the Bill will simply hit the sort of practical problems which in part explain why the Railway Policing (Scotland) Act 2017 was, in effect, abandoned after achieving Royal Assent, and why the Hate Crime and Public Order (Scotland) Act 2021 is expected to take at least three years to come into force. If they are manageable but very costly, the UK government could seek to insist the costs are met by the Scottish Government; that no such costs are budgeted for in the Bill’s financial memorandum would not be a legal point.
The second category of adverse effects in the statement of reasons is said to be increased risk of fraudulent applications. The process is easier so the risk of fraudulent or malign applications is increased.
But in the context of 525 additional applications, the vast majority of those are likely to be genuine.
Comment: The argument here is that the Bill as passed may provide for some fraudulent applications; but that these are likely to be tolerably small. Based on the UK Government (implied) assumption that the GRC-holding population is likely to reach around 10,000 in total, 1% of successful fraudulent applications would be equivalent to around 100 cases. The UK Government’s Statement of Reasons considers the issue of fraudulent applications in relation to the consequent increased risk to women and girls. It states, ‘the impacts that removing safeguards could have on safety, in particular that of women and girls, given the significantly increased potential for fraudulent applications to be successful’. Lord Falconer does not consider this last point, leaving an extraordinary gap in his analysis.
The authorities can monitor applications and the Chief Constable is able to inform the Registrar General of any person in respect of who they make a sexual protection order application so the RG will not grant them a GRC, the risk of fraud does not possibly justify s35.
Comment: This incorrectly implies that applications are systematically monitored and appears to misunderstand how the safeguarding provisions work. The safeguarding provisions in the Bill are exceptionally limited. In this context, preventative orders will apply to those who are already known to the police as convicted offenders and have been placed on the Sex Offenders’ Register and inform the police that they are applying for a GRC and meet the legal criteria for granting a restrictive prevention order, or, those meeting the legal criteria for granting an order, which are currently only deemed applicable to a relatively small group of known sex offenders. See further here:
Perpetrators of offending tend to offend serially before being reported, many are not found or charged and fewer again are convicted. The Scottish Government will face risks in relying on this aspect of the Bill to support Lord Falconer’s conclusion.
The Statement of Reasons (at p.7) identifies particular concern about bad actors being able to get a GRC and then try to circumvent safe space teas exclusions set up legitimately under the Equality Act.
But the fact that a person has a GRC does not prevent their exclusion from a safe space. Those providing safe spaces will be aware of the conditions for a Scottish GRC. They can require more protections from those with Scottish GRCs if appropriate.
Comment: The Bill will result in a larger and more diverse population of GRC holders. As argued by ourselves, Foran, and others, it is harder for service providers to exclude GRC holders, because a GRC prevents organisations from “seeing” a person’s (biological) sex in law, for the purposes of the Equality Act. The recent Haldane judgment put beyond doubt that a GRC has this effect.
This means that a GRC holder excluded from a single-sex service or space will be able to make a claim of direct discrimination on the grounds of gender reassignment in the courts. Service providers will be required to justify the person’s exclusion not because they are male (the actual reason) but because they are transgender (not the actual reason). The more often a provider expects such cases to arise, the more nervous they will be about having and enforcing policies based on applying exceptions. At least one law centre in Scotland, which is part Scottish Government funded, is actively seeking litigants to bring forward cases in relation to transgender rights, including access to single sex services.
Lord Falconer’s final sentence has no basis in any discussion of the Bill, or the law, that we are aware of. The foundation of the Scottish Government’s resistance to amending the Bill is that it should be free to legislate to issue GRCs fully identical in their legal effect to those issued at the moment. It would be a significant departure from its approach to date if the Scottish Government put this last point forward as an argument.
The final category of adverse effects in the Statement of Reasons is said to be in relation to the operation of the Equality Act, four of which effects are said to already exist but will be made worse, and one (the effect on admissions to single sex schools) is said to be new.
On the 4 effects said to be made worse the only one of any real significance is the one concerning associations. There is no exclusion within the Equality Act which would allow a single sex association to exclude a person with
a GRC from membership of the association. Already associations such as those which provide support for women victims of sexual violence would be guilty of gender assignment discrimination if they refused membership to biological man with GRC making her legally a woman.
The possibility of some proportion of the extra 525 applicants seeking to join such an association seems an utterly unsustainable basis for s35.
Comment: Lord Falconer dismisses three of the grounds as lacking “any real significance” without explanation. These are the operation of the Public Sector Equality Duty, equal pay and provisions where exceptions apply for both sex and gender reassignment-exclusion. In the last case he disregards that it is more complicated and thus harder in law to exclude a GRC holder, compared to a non-GRC holder (for the reasons set out above). It is not clear whether he thinks there is an exclusion provision for equal pay comparators, although there is nothing in the Act that provides this. His reason for dismissing effects on the PSED is unclear.
He correctly describes the problem with associations, although he wrongly assumes this includes support services for women who have experienced sexual violence. These are classed under the Equality Act as services, and the issues there are those described in the section above.
For associations, the UK Government argument will rest on a much higher assumed number of GRC holders (see above). Lord Falconer further appears to assume that this group will be evenly spread in the population, but the Statement of Reasons highlights its likely uneven distribution across the population by characteristic and location. In some settings, universities for example, there is in future a high probability of any single-sex association being legally required to admit people with a GRC conferring the relevant sex. Lord Falconer’s view that this amounts to an “utterly unsustainable” basis for concern turns on little or no weight being placed on such effects. This first-hand account published in the Times presents a powerful case as to why the ability to establish and participate in single-sex associations matters to lesbians.
Finally the new asserted adverse effect under the Equality Act namely the effect on Single Sex Schools. A single sex school in Scotland could not refuse entry to a person with a GRC in the gender of the school.(emphasis added)
The school could refuse entry if separately from gender reassignment there were grounds for refusal. This obviously will only apply to people of school age.
Comment: The highlighted statement appears to be the crux of dismissing any argument here, but it is not obvious what Lord Falconer has in mind. The exceptions for sex in the Equality Act operate on the basis of legal sex (as per the Haldane ruling), which rules this option out for a GRC holder. As Foran points out, a school that excluded a GRC holder would be open to a claim of direct discrimination based on gender reassignment, which it would expect to lose. There are no other grounds for exclusion in the Equality Act.
Falconer ignores points raised by the UK Government regarding the operation of the privacy protections related to GRCs in a school setting, which put schools in a near impossible situation in relation to decision-making, and communications with pupils and parents. He does not address points made about the complexity of Scottish GRC holders applying to English schools.
It will effect probably a very small proportion of the 525 – those of 18 and under who might want to go to a single sex school who were suitable for selection. And on what basis should that cohort be refused entry?
Comment: Leaving aside any further comment on Lord Falconer’s maths, and his assumption that such schools will always be selective, the argument in relation to single sex schools is existential rather than probabilistic.
His final question appears to imply that protecting the continued existence of such schools is not a legitimate aim, notwithstanding that they are still legally permitted. But if it is Lord Falconer’s view that parents should no longer be lawfully able to choose single sex education for their children, that would be more defensibly pursued through directly arguing for a change to the law on that point.
If they had some malign intent they would not be eligible. If they were eligible they shouldn’t be discriminated against.
Comment: School applications do not normally include a box to tick on malign intent, and so the first sentence here is unintelligible. The Bill contains no safeguards at all which are likely in practice to apply to a school age pupil. As above, the second sentence suggests Lord Falconer is opposed on principle to single-sex education. Nothing here appears to offer an attractive argument for the Scottish Government to run.
The Statement of Reasons did not justify the use of s35
The Falconer thread does not stand up well to close reading.
In no particular order, his surprising presentation of numbers suggests either a failure of multiplication skills or a lack of clear drafting. His account of the Equality Act is incomplete and in places wrong, confused or confusing. He makes a number of legal-sounding proclamations that cannot be related back to the law, in the Equality Act or elsewhere. He glosses over the reason the GRA was enacted for the UK as a whole in 2004, notwithstanding his own involvement in that. He appears not to appreciate the extent to which the benefits system is IT based and to believe in the elimination of single-sex education by stealth. Aspects of school admissions are described very oddly. He introduces legal concepts technically irrelevant to a judicial review. He substantially over-states the degree of police oversight the Bill provides for. At more than one point, he appears not to have understood the Bill’s fundamental purpose is to provide a new route to the existing form of GRC, not a new type of GRC.
The largest weaknesses however lie in what is missing. Lord Falconer does not deal with significant issues raised in the Statement of Reasons. These include a loss of comparators for equal pay purposes and the strict privacy provisions in the 2004 Act. Most strikingly, he shows no interest in the key rationale underpinning the Statement of Reasons, namely concern for impacts on women and girls. Where these are not ignored, they are briskly waved aside.
However, this 19-tweet thread has had an impact for a reason. It provides reassurance to those who believe the Bill should be allowed to go forward to Royal Assent as it stands, with an unusually confident air of authority, and the branding of a former Lord Chancellor and major figure in the Blair government.
Not all its points lack substance. The size of the GRC holding population is bound to be an issue in any court case brought by the Scottish Government, which may find Falconer’s focus on annual rather than total figures an attractive model to follow. Practical implications for the delivery of benefits, even if more complicated than allowed for in this thread, might be argued as ultimately manageable, even if they generate costs the Scottish Government must meet.
Last, much of the appeal of Lord Falconer’s thread may lie in how it goes with the grain of so much of the discourse in support of the Bill, by side-lining potential impacts on women.