At Stage 3 of the Gender Recognition Reform (Scotland) Bill the Scottish Parliament passed amendment 40, and related consequential amendments, proposed by Gillian Martin MSP, aimed at providing safeguards against misuse of the new legal gender recognition scheme.
This blog explains how, in supporting the Martin amendment, the Scottish Government and almost all MSPs accepted that obtaining a Gender Recognition Certificate (GRC) could, of itself, increase a person’s risk of sexual offending. Otherwise, MSPs passed a law which could never be used.
Justification for the amendment
The Scottish Parliament passed amendment 40,which became Section 6B of the Bill, by an overwhelming majority, with only one abstention (several MSPs did not vote for what appear to be unexceptional practical reasons; all Green Party MSPs voted for it). As noted above, the amendment was proposed by a then government backbencher, Gillian Martin MSP, but evidently had been drafted with considerable help from the Scottish Government, and had government support.
During the debate, Shona Robison prefaced her comments on the amendment with a familiar assertion:
I start by saying, as I have said many times before, and as members across the chamber have also said, that the threat to women and girls is of course from predatory and abusive men. Of course, there is no evidence that such predatory and abusive men have ever needed to apply for legal gender recognition to carry out their behaviour.Shona Robison MSP, 20 December 2022
This was, however, a carefully worded strawman: the relevant question was not whether a person needed a GRC to engage in abusive and predatory behaviour, but whether acquiring a GRC could help enable such behaviour.
How Section 6B works
The system introduced by Section 6B hinges on the ability of the police to persuade a court to set a prohibition on obtaining a GRC as a condition of one of the following legal instruments:
- a Sexual Offences Prevention Order (SOPO)
- a Sexual Harm Prevention Order (SHPOs)
- a Sexual Risk Order (SROs)
The sort of conditions such orders are used to impose include not going within a certain distance of children’s playgrounds or not travelling abroad, for example. These orders restrict a person’s liberty, so the conditions they set must meet certain tests. Individuals subject to SOPOs (very recently replaced by SROs and SHPOs) have successfully brought legal challenges against them in the past. The recent move to SROs and SHPOs has caused further controversy, as their scope has been extended. The courts and the police will issue them in the knowledge they may be challenged.
The test for granting an SRO, and therefore for any specific condition in it, is set out in Section 11(4) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, as below (emphasis added)
A court may make a sexual harm prevention order only if it is satisfied that it is necessary to do so, for the purpose of—
(a) protecting the public, or any particular members of the public, from sexual harm from the person, or
(b) protecting children or vulnerable adults generally, or any particular children or vulnerable adults, from sexual harm from the person outside the United Kingdom.Abusive Behaviour and Sexual Harm (Scotland) Act 2016 (legislation.gov.uk)
The test for an SRO, in s27(2), is near-identical, except it refers more generally to “harm”. Both therefore require the court to decide the condition is necessary in order to protect against harm.
There would therefore have been no point in having Section 6B, or having argued and voted for it, unless a person accepted that cases could arise where the police would be willing to go to court to argue that obtaining a GRC could, of itself, increase someone’s ability to do something harmful, and a court would be willing to agree.
Voting for the amendments therefore unavoidably committed the Scottish Government (and most MSPs, including the Scottish Greens) to accepting that, in the wrong hands, a GRC could be used for sexually abusive purposes. The only way to avoid endorsing that position was not to vote for the amendments.
Indeed, while no man may need to acquire a GRC to engage in abusive behaviour, it is clear that in passing the amendment elected representatives did concede there was a risk. In responding to a point about the relatively low use of preventive orders, Gillian Martin stated in terms:
I do not think that the numbers really matter. I come from a background where I did a lot of safety work around oil and gas, and just because something is very unlikely to happen, it does not mean to say that we should not be mitigating that risk. That is always the position that I come from when I look at law.
Just because maybe only one person might get through, that does not mean that we should not mitigate risk. We have to be proportionate, but at the same time we have to recognise that some things could happen when we are making law. I look at this in the same way.Gillian Martin MSP, 20 December 2022
Either a GRC is strictly incapable of increasing the sexual risk a person poses, or it isn’t.
Throughout the Bill process, the Scottish Government’s argument relied heavily on there being no connection between GRCs and opportunities to offend. It argued that making them more easily available created no new risks.
Then in the final days, it agreed to rewrite the Bill in a way that necessarily relied on the possibility of such a risk. For the amendment to have any meaning in law, however little the provision may be used, GRCs must be agreed to be capable of increasing a person’s risk. An argument of no risk is fundamentally different from an argument of low risk.
Simpler amendments intended to limit access to GRCs by those accused of sexual offending were put forward by Michelle Thomson and Russell Findlay. The Scottish government rejected these. These amendments would not have written onto the face of the law a necessary acceptance of potential for harm. They were rejected on ECHR grounds which were never adequately explained (see further here).
In providing a more restricted alternative to the Thomson/Findlay proposals, Section 6B allowed the Scottish Government to appear responsive to critics. But in taking this specific approach, it legislated to contradict the rhetoric at the heart of its project, unavoidably conceding that obtaining a Gender Recognition Certificate could facilitate sexually abusive and predatory behaviour.
That Section 6B necessarily only catches those who have already come to the attention of the authorities, and meet the more general conditions for being subject to one of the relevant Orders, makes that acknowledgment even more remarkable.