Exposing the contradiction in Scotland’s gender recognition reform project

The judgment from the Inner House of the Court of Session in the case brought by the campaign group For Women Scotland has exposed the contradiction at the heart of the Scottish Government’s gender recognition reform project.

For four years the Scottish Government refused to engage with concerns about the interaction between the Gender Recognition Act 2004 and the Equality Act 2010. Neither Scottish Government consultation on gender recognition reform sought views on this.

The government dismissed the Equality and Human Rights Commission (EHRC) for raising objections based on the interaction between the two statutes. During the passage of the Gender Recognition Reform (Scotland) Bill, Ministers repeatedly refused to discuss the effect of a Gender Recognition Certificate (GRC) under the Equality Act. The oft-repeated statement that the government held ‘two consultations’ on gender recognition reform needs to be viewed against this backdrop of obsfucation.

We think the Scottish Government’s conduct here has been driven, at times to the point of absurdity, by Ministerial concern that if a Scottish GRC changes a person’s sex for any reserved matter, it would raise a legislative competence issue; and that any statement or comment in that area needed to be avoided. It remains to be seen how this point is now dealt with in the proceedings round Section 35.

At the same time, the Scottish Government sought to defend an interpretation of sex in the Gender Representation on Public Boards (Scotland) 2018 based on the argument that a GRC does indeed change a person’s sex for the purposes of the Equality Act.

Since it began work on gender recognition reform in 2016, the Scottish Government has ridden two horses. In winning its case against For Women Scotland, that position is no longer tenable. Yesterday’s ruling crystallises the relationship between the Equality Act and the Gender Recognition Act. In doing so, it makes clear that reform of the latter on the basis of self-declaration carries profound implications for women’s rights under the current law.

As we explained here, the ruling means, for example, that single-sex associations of twenty-five people or more have to admit people of the opposite sex, if the state has issued those people with a GRC. This point is further explored here.

It should not have taken court action, taken by a volunteer-led feminist organisation, to force the Scottish Government to lay out its position on whether a GRC changes a person’s sex for the purposes of the Equality Act.