Gender Recognition Reform (Scotland) Bill Outline

Disclaimer: This article is written by Isabel Adams. Any views and opinions expressed in this article are those of the writers and do not necessarily reflect the views or positions of the team editor nor any entities they represent.

Passed by the Scottish Government in December 2022, the Gender Recognition Reform Bill aims to improve and simplify the process of attaining a Gender Recognition Certificate (GRC), amending the Gender Recognition Act 2004. This Bill aims to increase the accessibility of GRCs by reducing the minimum age of application from eighteen to sixteen. Further, the bill would remove the requirement for a medical diagnosis of gender dysphoria and decrease the minimum time applicants need to have lived in their acquired gender from two years to three months.

Scottish Devolution

Following the 1997 Scottish devolution referendum, in which seventy-four per cent of the Scottish electorate voted in favour of a Scottish Parliament, Blair’s Labour Government passed the Scotland Act 1998, thereby decentralising Westminster’s power. Although Blair claims that devolution was necessary to prevent calls for outright independence,this has clearly not been successful; the Scottish Independence Referendum (2014)- and the SNP’s current calls for a second- reflect a trend of increasing nationalism, with Sir Kenneth Calman advising the House of Lords that devolution ‘will not stop until it’s something called independence’.

While both Sunak and Starmer oppose a second independence referendum, it seems unlikely that the SNP’s aims will be achieved anytime soon. This is further cemented by the judgement of the Supreme Court, who, in 2022, concluded that the Scottish Government would not be able to legislate in this area: Supreme Court justices unanimously agreed that such power would transgress the provisions of the Scotland Act 1998, encroaching ‘reserved’ matters relating to the constitution (specifically the Act of Union (1707)).

As such, the power of the Scottish Parliament is clearly limited. Recently, this has been demonstrated by Westminster’s veto of Scotland’s Gender Recognition Reform Bill, using Section 35 of the Scotland Act to prevent the legislation from gaining Royal Assent and thus becoming statute law.

A Closer Look at Westminster’s Decision

On 16^th January 2023, Alister Jack (the Scottish Secretary of State) announced that that, for the first time in the twenty-five years of devolution, Section 35 would be exercised. Jack argued that the bill ‘would have an adverse impact on the operation of Great Britain-wide equalities legislation’, with Westminster claiming that Scotland’s modifications to the Gender Recognition Act 2004 impede upon the Equality Act 2010. The protection of single-sex spaces and rules regarding equal pay have become particular areas of contention in respect to Scotland’s bill, with the Government also highlighting the potential for increased ‘bad faith’ applications. Indeed, many opposers of the bill argue that, in its perceived incompatibility with pre-existing UK legislation, this reform would create complications within the political system; if enacted, the bill would mean that Scottish GRC holders would have a different gender and legal sex depending on their location in the UK, which some argue is inconvenient and illogical.

However, proponents of the bill reason that citizens from countries with similar self-identification legislation (such as Canada and Australia) are recognised as their affirmed gender by the UK Government. Surely, the same principal could be extended to Scottish nationals? Not only this, but gender recognition is a devolved power, leading many to argue that Westminster has no right to interfere with Scotland’s decision; in fact, Nicola Sturgeon (former First Minister and leader of the SNP) even suggested that the use of Section 35 could ‘embolden’ the Government to block democratically passed legislation, thus placing the UK’s political system on a ‘very slippery slope’ and threatening a ‘full-frontal attack’ on the democratically elected Scottish Parliament. This is especially significant when considering the substantial majority of MSPs voting in favour of the bill, which was privy to intense scrutiny- the likes of which had not been observed before in the history of Holyrood. Partly a result of this rigorous process, the Equalities, Human Rights and Civil Justice Committee were able to confidently conclude that ‘nothing in this Act modifies the Equality Act 2010’. Further, in regard to the fear of increased fraudulent applications, the bill includes safeguards to criminalise such misuse, thus providing protection against malintent. Not only this, but Lord Falconer (former Lord Chancellor and Secretary of State for Justice) expressed dissatisfaction with the UK Government’s actions, claiming Alister Jack ‘did not justify’ his decision in taking the ‘nuclear option’, while reasoning that only a very small proportion of GRC applications would be attempted by sex offenders, and could thus be addressed with a relatively small administrative burden.

Future of the Bill

While Holyrood’s attempts at reform may have been quashed by Westminster, this decision could be reversed through the process of judicial review. The Scottish Parliament’s intention to challenge the UK Government’s veto was initially expressed by former First Minister Nicola Sturgeon and later confirmed by Shirley-Anne Somerville (the Scottish Social Justice Secretary), both of whom expressed the importance of protecting Scotland’s democracy. This commitment clarifies that, despite Sturgeon’s resignation, the reform bill remains a key concern of the Scottish Government, which is further evidenced by current First Minister Hamza Yousaf’s actualisation of the promise to challenge the section 35 order. As such, Scotland’s supreme civil court, known as the Court of Session, will review Holyrood’s petition, which calls for the reduction of the order based-on material errors of law, irrationality, irrelevant considerations, and inadequate reasons.

Supporters of the bill, such as Sturgeon, seem ‘very, very, very’ confident that the Scottish Government will be successful in defending its legislation. This, partly since Westminster’s decision seems to defy the expectation that powers of intervention should be used ‘very much as a last resort’ (2013 Memorandum of Understanding and Supplementary Agreements). Further, no concerns were raised during the 2017 and 2019 consultations regarding the bill (a time during which the UK Government itself was considering similar reforms under Theresa May), nor in the nine-month passage of the bill. Westminster’s failure to communicate their discontent with Scotland’s reform, alongside the lack of sufficient advice regarding amendments, presents their decision as somewhat unjustified.

On the other hand, some warn that the legislation is doomed to fail; Lord Hope (former Lord President and Vice-President of the Supreme Court), warned that the bill is a colossal waste of time and money. He also expressed concerns regarding its application, and how this may impede UK-wide legislation, thus concluding that the bill has a relatively low chance of success.

Political Strategy?

Prominent figures in Scottish Politics, such as Nicola Sturgeon and Stephen Flynn, have accused the Conservative Party of ‘stoking a culture war’ in order to increase their popularity. This is especially significant when considering a recent YouGov poll, which revealed that two-thirds of Scots oppose its main features. Not only this, but some regard the UK Government’s veto as a method of demonstrating the limited power of Holyrood in comparison to Westminster, with Flynn accusing the government of converting devolution into direct rule.

On the opposite side of the debate, many Conservatives have accused the SNP of selecting a divisive issue to fuel calls for independence. Some have suggested that Sturgeon was aware the reform bill violated the Equality Act 2010 and used it to further divide the UK, creating legislation incompatible with pre-existing UK law and thus forcing Westminster to take action. However, when considering the controversy caused by the bill, this reasoning may not be accurate: to secure Scottish independence, a majority of support is required from the Scottish electorate. As such, campaigning on such a contentious topic seems somewhat counterintuitive to the SNP’s ultimate goal.