MBM statement on the ruling in the Judicial Review of the Gender Recognition Reform (Scotland) Bill

For years the Scottish Government has refused to engage with concerns about the interaction between the Gender Recognition Act 2004 and the Equality Act 2010. During the passage of the Gender Recognition Reform (Scotland) Bill, Ministers repeatedly refused to discuss whether a Gender Recognition Certificate (GRC) changes a person’s sex under the Equality Act.

Absurdly, they refused to tell MSPs what they were arguing separately in a court about this, even as the Bill was being considered. They put off formal discussion with the UK government until the last minute, relying on informal, unminuted meetings between junior officials until the Bill was well through Holyrood.

This behaviour is best explained by Ministerial concern that their plans to let far more people have a GRC, much more easily, would have raised a question about legislative competence. In other words, we think it likely that the Scottish Government was fully aware that having an effect under the Equality Act was in the frame.

Today’s ruling vindicates the concerns raised by grassroots feminist campaigners, ourselves, and others. It accepts that simplifying and opening up the legal gender recognition process to anyone 16 or over would modify the operation of the Equality Act, and that the Secretary of State was reasonable to anticipate adverse consequences from this.

That this had to be sorted out in court reflects a failure on the part of the Scottish Government. But it also reflects badly on the civil service, the Scottish Parliament, most of the opposition parties, and many third-sector organisations, who likewise, treated the arguments and interests of women with disdain.

We are now seeing exactly the same failures play out in the changes to prison policy announced this week. Ministers and opposition parties should learn from the mishandling of gender recognition reform in Scotland. MSPs now need to send the Scottish Prison Service back to the drawing board, and insist that this time it listens to women.