The question for the next four weeks
The Gender Recognition Reform Bill looks set to be voted through by the Scottish Parliament. But before it becomes law it has to be given royal assent.
Using the Scotland Act
Under the Scotland Act which governs devolution the UK Government has two routes to intervene to prevent the Royal Assent of the GRR (Scotland) Bill:
- The Attorney General, Victoria Prentis, can send it to the Supreme Court (using Section 33 of the Scotland Act) if she thinks the bill will directly relate to matters reserved to the UK.
- The Secretary of State for Women and Equalities, Kemi Badenoch, could send the Bill back for reconsideration (using Section 35) if it adversely modifies the law relating to reserved matters.
They both have four weeks to do this. This post sets out what they should be thinking about.
Is changing legal sex reserved?
Matters that are reserved for UK legislation are listed in Schedule 5 of the Scotland Act.
They include such things as tax and fiscal policy, data protection, the armed forces, weights and measures and almost all aspects of equal opportunities.
Although it has been assumed by the Scottish government that the matter of legal sex change is devolved, that may not be the case.
The Scottish Parliament is not free to redefine pounds and ounces, litres, grams or miles. Is it really free to redefine what a woman is?
Sex is, after all, a protected characteristic.
The Policy Memorandum for the bill states:
“The Scottish Government aims to create a more equal Scotland where people and communities are valued, included and empowered and which protects and promotes equality, inclusion and human rights. The National Performance Framework sets a national outcome for human rights: ‘we respect, protect and fulfil human rights and live free from discrimination.’ In line with this, the policy of the Bill is to improve the process for those applying for legal gender recognition as the current system can have an adverse impact on applicants, due to the requirement for a medical diagnosis and supporting evidence and the intrusive and lengthy process.”
That locates the purpose of the bill squarely inside equal opportunities.The work of scrutinising the bill was given to the Equalities, Human Rights and Civil Justice Committee, which “focuses on: equal opportunities matters, human rights matters and civil justice matters including debt, evictions and family law”.
Victor Madrigal-Berloz, the UN independent expert on sexual orientation and gender identity – who was invited to address the Committee twice – has made the case for this legislation on the basis of non-discrimination and equal opportunities. He argued that:
“There are suggestions to postpone its consideration and/or weaken its contents. I am concerned that these efforts may respond to erroneous information based on the stigma and prejudice that have long permeated efforts to deny legal recognition to persons based on their gender identity, and thereby deny them equal access to services and the full enjoyment of their human rights.”
He also claimed that “UN Treaty Bodies and other mechanisms have consistently affirmed in their jurisprudence that, just like race, sex, colour or religion, gender and gender identity and expression are prohibited grounds for discrimination”.
Issues of non-discrimination related to race, sex, gender reassignment and religion are reserved to the United Kingdom as part of equal opportunities.
During the debate the Scottish Government’s Cabinet Secretary, Shona Robison, was adamant that the bill does not change anything about the Equality Act, saying that “absolutely nothing in the Equality Act is affected by this Bill. I cannot be clearer than that… we are not able to do that. We do not have the competence to do that.”
She advised that amendments clarifying this should be rejected because of constitutional concerns. But she did promote the single amendment that was agreed concerning this issue, namely to produce guidance about the Act in consultation with statutory bodies concerned with equality and human rights.
She specifically said they would do this with the EHRC, the body responsible for UK-wide equality law, further suggesting that this legislation is primarily concerned with equal opportunities.
Does the GRR Bill change the Equality Act?
Amendment 15A to the GRR Bill, agreed at Stage 2 before the Haldane judgment (the FWS Judicial Review) was published on 13th December, states:
“For the avoidance of doubt, nothing in this Act modifies the Equality Act 2010.”
That is technically true: the bill doesn’t change any of the words or mechanisms of the Equality Act, and if it purported to, the provisions doing so would indisputably be ineffective. But the Haldane judgment suggests that the bill may nevertheless make profound changes to how the Equality Act operates.
The issue in the FWS case was “whether or not, as a matter of law, the definition of ‘woman’ in the 2010 Act includes those persons holding a GRC [gender recognition certificate] stating that their acquired gender, and thus their sex, is female”. Haldane says that it does, because the UK legislators at the time understood the action of the Gender Recognition 2004 as it had been enacted, and did not explicitly state that the Equality Act relates to biological sex (this judgment may still be appealed).
Thus, according to Lady Haldane’s judgment the words relating to the protected characteristic of sex in UK equality law (the Sex Discrimination Act 1975 at the time) were redefined at the point when the GRA 2004 was passed, and this new meaning was subsequently incorporated into the Equality Act.
This has the result that the words “female” and “woman”:
- include male people who met the conditions in Section 2 of the GRA 2004 (diagnosis and two years living in role) and who had successfully applied for a GRC
- exclude female people who met the conditions in Section 2 of the GRA 2004 and who had successfully applied for a GRC and been issued one by the Gender Recognition Panel.
And vice versa for the words “male” and “man”.
However, the drafters of the Equality Act 2010 cannot possibly have written it with the GRRA (Scotland) 2022 Act – which repeals Section 2 for Scotland and replaces it with different criteria – in mind.
The question that promoters of the Bill have carefully avoided in all of the debates is whether a GRC issued by the Registrar General for Scotland is intended to have the same impact on the Equality Act as a GRC issued by the UK Gender Recognition Panel.
There are two options for interpretation here:
- Option 1: The Gender Recognition Bill does not affect the operation of the Equality Act 2010 (which is a reserved matter). Therefore the definitions of man, woman, male, female remain as they were before the Bill and take into account only GRCs issued by the UK Gender Recognition Panel according to the existing conditions.
- Option 2: The Gender Recognition Bill does effectively change the definitions of man, woman, male, female in the Equality Act by adding to it a person who has acquired their sex via GRC issued by the Registrar General for Scotland according to the less exacting standards in Section 8A of the GRR (Scotland) Bill.
The Scotland Act states in Schedule 4, Paragraph 2:
(1) An Act of the Scottish Parliament cannot modify, or confer power by subordinate legislation to modify, the law on reserved matters.
(2) In this paragraph, “the law on reserved matters” means –
(a) any enactment the subject-matter of which is a reserved matter and which is comprised in an Act of Parliament or subordinate legislation under an Act of Parliament, and
(b) any rule of law which is not contained in an enactment and the subject-matter of which is a reserved matter
The question of the definition of the protected characteristic of sex is clearly a reserved matter.
However, on the face of it the GRR Bill does not repeal or alter Section 9 of the GRA, which states:
“Where a full gender recognition certificate is issued to a person, the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).”
This suggests that it envisages, and promises to applicants that they are getting a fully functional GRC that has the same effect as a UK GRC “for all purposes”.
In fact as the Forstater judgment confirms (at paragraph 97), there is a missing word here. For all purposes in the GRA means for all legal purposes (apart from where there are exceptions), and the Scottish Government can only legislate for devolved legal purposes.
Option 2 might put the Bill outside the competence of the Scottish Government.
Alternatively, we might read Section 9 as saying that a GRC issued by the UK GR Panel changes a person’s sex for all [legal] purposes [under the jurisdiction of the UK government], and a GRC issued by the Scottish registrar general changes a person’s sex for all [legal] purposes [under the jurisdiction of the Scottish Government].
Option 1 would keep the Bill within the competence of the Scottish Government, but would mean that it offers only a GRC-lite, which for example changes a person’s sex for the purpose of laws related to marriage, but not for laws and policies (and associated administration) relating to tax and pensions.
The Scottish Bill repeals large parts of the original GRA for Scotland, and the First Minister has stated that people living in Scotland will not be able to obtain a GRC from the UK Gender Recognition Panel, once the Scottish version is open. (Note: shortly after this blogpost was published on 22nd December Shona Robison contradicted the First Minister and her own previous statements, telling MSPs that the UK route would remain open.)
If a Scottish GRC changes a person’s sex only in relation to legal matters that are under the jurisdiction of the Scottish Government, and it is the only option available in Scotland, this would put Scotland outside of the margin of appreciation of the ECHR judgment in Goodwin v UK [2003], which led to the passing of the Gender Recognition Act, and which specifically included pensions (an area of legislation reserved to the UK).
Considering adverse effects
The Scotland Act gives the UK Secretary of State the power to intervene in certain cases. Under Section 35, if a Bill contains provisions –
(b) which make modifications of the law as it applies to reserved matters and which the Secretary of State has reasonable grounds to believe would have an adverse effect on the operation of the law as it applies to reserved matters
The Secretary of State may make an order prohibiting the Presiding Officer from submitting the Bill for Royal Assent, and send it back for reconsideration. She has four weeks to do this. This may happen as many times as necessary until the issues are resolved.
The unresolved issue of the interaction between the Act and reserved areas of legislation, including but not limited to the Equality Act, gives reasonable grounds for making such an order.
The order could ask the Scottish Government to clarify via legislative amendments whether the legislation is intended to operate according to
- option 1 (applies only to devolved matters) or
- option 2 (also applies to reserved matters), specifically the definition of “sex” for equal opportunities, data protection, and tax and benefits.
The Attorney General could then decide whether these areas of the Bill are outside the legislative competence of the Scottish Parliament and may refer the question to the Supreme Court.
If it is determined that the whole Bill and areas within survive the challenge about being reserved, specific adverse impacts should still then be considered (in relation to Section 35 of the Scotland Act). These include:
- adverse impacts on administrative coherence
- adverse impacts on the UK government’s ability to promote equal opportunities for biological women nationwide
- adverse impacts on transgender people in Scotland
- adverse impacts on other users of single-sex service.
- adverse effects on women and girls in relation to sex discrimination protection
- adverse impacts on employers and other data controllers
- adverse impacts on providers of single-sex services.
If the UK government has an interest in advancing the interests of biological women nationwide, then the FWS case and this new bill will significantly hamper positive measures in Scotland. The UK government might conclude that the GRA as previously in force strikes the right balance for equal opportunities, and that any change would be undesirable.
The adverse effects on single-sex services in practice, though much discussed, will be subtle because there is already so much confusion, and as Reem Alsalem noted, because of lack of data. Service providers may be able to use Schedule 3 Paragraph 28 of the Equality Act to exclude transgender people. This, however, will be difficult since, according to Lady Haldane’s judgment, “single-sex services” in the Equality Act already accommodate the idea that sex is merely what is written on a piece of paper and does not relate to a person’s body. This makes the single-sex exceptions practically unworkable.
The four-week time limit for this intervention means there will be leeway on how it is assessed, with the Secretary of State making a reasonable assessment of what is likely to happen, rather than having to rely on hard evidence (one piece of evidence she might consider is our single-sex services survey).
The more immediate and clear-cut impact is likely to be via employers, HMRC and the DWP, who are all required to record and use a person’s sex as modified by a GRC.
Catch-22
Information about a person’s sex is widely collected, including specifically in relation to employment, tax and benefit records.
If the GRR Bill is to remain compliant with the Scotland Act, it will not change a person’s sex for these purposes, which are reserved.
However, anyone who has information about an employee’s sex (which is a routine part of their records), and who shares that data, will be committing an offence under Section 22 of the Gender Recognition Act 2004 (unless this disclosure is covered by one of the very limited exceptions).
The application of the bill to tax, benefits, pensions and employment records will affect all people with Scottish GRCs in their everyday life, and all the institutions they interact with. There needs to be clarity from day one about whether a Scottish GRC leads to changes in these records.
Employers, HMRC, the DWP and other data controllers who hold information about people with GRCs already take elaborate measures to protect data relating to holders of GRCs being shared, and to protect their own employees from coming into contact with this data and thereby being exposed to potential legal liability. This tends to involve physical measures such as locked filing cabinets, and computer systems that flag up people with sensitive data and constrain access to their data; for example, see R (on the application of C) v Secretary of State for Work and Pensions [2017].
However, these measures cannot sensibly be applied to people whose sex has not changed for the legal purposes relevant to that organisation.
This analysis suggests HMRC and DWP will not be able to lawfully change a person’s sex (attached to their National Insurance number) without a GRC issued under the jurisdiction of the UK Government.
But the GRR Bill would make it a criminal act for HMRC or DWP staff to share information about the sex of a person with a Scottish GRC (with very limited exceptions), even though it would have to be on the face of their records.
This is a complex, expensive and perhaps insoluble practical problem, and attempting to fix it will incur significant public cost. That cost should be considered and plans put in place before the bill is enacted.
The same legal jeopardy would also be experienced by the person’s employer, and by any service provider that routinely collects data on sex. There will also be private costs for employers needing to comply with Section 22 while also recording a person’s original sex in relation to reserved legal purposes. These costs should be considered and plans put in place so that employers and other data controllers understand the implications before the bill is enacted.
These highly likely complications mean that people with Scottish GRCs may face increased discrimination because of the legal status conferred on them by the GRR Bill – their sex has not changed for many official purposes, but their information has become a criminal-liability risk to manage. That will make them frightening to employ and deal with. These impacts on holders of the certificates should be considered before the bill is enacted.
Among those likely to be harmed by this legislation are trans people in Scotland, because their legal status will be extremely uncertain and unworkable. Some of the people taking up these certificates may be as young as 16. It should be clear to these young people, and to all holders of these certificates, how they fit within legal frameworks.
Why so much uncertainty?
The uncertainty surrounding the Bill currently makes it impossible to adequately assess these adverse impacts.
Specifically, there is uncertainty about:
- the intention of the Bill (is it Option 1 or Option 2?)
- the Haldane judgment (will it be appealed, and if so will it be upheld or overturned?)
- steps the UK government may take to clarify the relationship between the GRA 2004 and other legislation where sex matters, including the Equality Act, by using Section 23 of the GRA (our parliamentary petition on this has more than 50,000 signatories).
The process of stopping royal assent and sending the bill back can be used to reduce uncertainty by identifying it, clarifying it and coordinating between the UK and Scottish governments.
But at the same time the UK Government should take this issue decisively in hand and make clear that biological sex and gender reassignment are separate protected characteristics in the Equality Act.
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