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We are particularly pleased that the government has recognised that changing both the size and the nature of the cohort in possession of a gender recognition certificate (an official document that changes a person’s sex for some legal purposes) will exacerbate problems with the existing regime. This was intended to make provision for a tiny number of people with a rare medical condition, not to replace the concept of sex in law with self-declared “gender identity”. 

We also welcome the UK government’s recognition that it is not just the strict legal effects of the GRR Bill that matter, but also its potential to cause real-world harm by creating fear and uncertainty well beyond its legal effects.

After the GRR Bill was passed in Holyrood on December 22nd, the UK government had a three-way choice: 

1. Do nothing, and allow the bill to go forward for Royal Assent unhindered.
2. Refer the bill to the Supreme Court under Section 33 of the Scotland Act on the basis that it relates to reserved matters (matters on which the Scottish Parliament is not entitled to legislate), or is contrary to the UK’s obligations under the European Convention on Human Rights.
3. Make an order preventing the bill from going for Royal Assent because it contains provisions that will have an adverse effect on the operation of the law as it applies to reserved matters. 

The main effect of the GRR Bill is to alter the eligibility requirements for receiving a GRC. Currently these requirements are the same across the UK, and are as set out in the Gender Recognition Act 2004. They include: 

• having received a medical diagnosis of gender dysphoria
• providing evidence of having “lived in the acquired gender” for a minimum of two years
• being at least 18.

The Gender Recognition Reform Bill amends the Gender Recognition Act by:

• removing the requirement to have received a diagnosis of gender dysphoria 
• lowering the minimum age from 18 to 16
• reducing the period during which an applicant must have lived in their acquired gender from two years to three months (or six months for applicants aged under 18)
• removing the requirement to provide any evidence (beyond a statutory declaration) of having lived in the acquired gender 
• removing the requirement to satisfy a panel that the requirements have been met.

Alister Jack has opted for the less radical option of an order under Section 35. Although this has been described as the “nuclear” option, it really isn’t. 

In responses to questions in the House of Commons, and in a written statement, the Secretary of State has pointed out that:

• the GRR Bill will create a twin-track system under which UK GRCs have effect UK-wide, but Scottish GRCs have effect only in Scotland
• the impacts of the GRR Bill on the operation of the Equality Act will erode safeguards for women and girls
• the GRR Bill creates a significantly increased scope for fraudulent applications for GRCs.

Administrative upheaval

Mr Jack said that the GRR Bill does not (and could not) produce GRCs that have effect other than in Scots law, and warned of the chaos that would result from a system in which a person may be a man in Scotland but a woman in England and Wales, or vice versa. Tax, benefits and state pensions are all managed by integrated UK-wide systems, and the difficulties of devising administrative systems that can cope with people who simultaneously have one sex in one part of the UK and the other in other parts will be immense.

Widespread harms 

Mr Jack argued that the removal of safeguards and consequent expansion of the category of those who can apply for Scottish GRCs will exacerbate problems that already exist under the UK-wide GRC regime, and create new ones.

He pointed to particular difficulties created by the Scottish bill for single-sex clubs and associations, which, as he rightly said, can lawfully exclude people on grounds of sex, but not on grounds of “gender reassignment” (one of the protected characteristics in the Equality Act, which applies broadly to people who assert trans identities). 

The notice uses bland administrative language, speaking of “the effect of its requirements on single-sex associations, who will be required to accept, without discrimination, members from a new, larger and different cohort”. What this means is that the GRR Bill contains nothing that would stop the “new, larger and different cohort” – for example, men who cross-dress for erotic purposes – from demanding access to women-only clubs and associations. 

The obvious conclusion to be drawn from these effects is that the GRR Bill also engages the Article 11 right to freedom of association. But the Secretary of State did not follow this line of reasoning to its logical conclusion, namely that the bill is incompatible with Convention rights, and therefore with the UK’s obligations under international law. Such reasoning would require a reference under Section 33. But the government is instead taking the less confrontational Section 35 route. 

Twin-track system?

The Secretary of State’s reasoning takes as its starting point that Scottish GRCs will not have effect on the rest of the UK. We think that is far from obvious, and may need to be resolved in court in due course, if the GRR Bill becomes law. But we agree that a dual regime is certainly possible – and that it would cause chaos.

What happens next? 

The Scottish government is near certain to seek judicial review of the Order. In theory, that process could go on appeal to the Inner House of the Court of Session (the Scottish equivalent to the Court of Appeal), and then to the Supreme Court. But given the constitutional significance of the questions, it is more likely that it will be referred by the Court of Session directly to the Supreme Court. 

We would have preferred to see a direct challenge to the lawfulness of the Bill under Section 33, because we think that it infringes Articles 10 and 11 (and perhaps others) of the European Convention on Human Rights, and makes such more fundamental changes to the operation of the Equality Act that it could properly be said to “relate to” equal opportunities. But we are delighted that the practical consequences of the gender-recognition regime will now receive a full and detailed airing in the Supreme Court. 

Maya Forstater, our Executive Director, says:

“Blocking the GRR Bill was the right decision. The process whereby it was passed in Holyrood was deeply troubling. Individuals and groups seeking to provide evidence of its harmful effects on women and children were sidelined; proponents of gender self-identification, which the government in Westminster rejected in 2020 after consulting widely, were listened to uncritically. 

The UK government has a nationwide remit to protect human rights, as well as a duty to stop devolved lawmaking from creating malign cross-border effects. We are delighted that the issues caused by conflating immutable, binary sex with self-declared gender identity will now be considered in court.”

The post The UK government is right to challenge the GRR Bill appeared first on Sex Matters.

17th January 2023: Human-rights organisation Sex Matters welcomes Scottish Secretary Alister Jack’s order under Section 35 of the Scotland Act 1998 preventing the Gender Recognition Reform (Scotland) Bill from receiving Royal Assent.

We are particularly pleased that the government has recognised that changing both the size and the nature of the cohort in possession of a gender recognition certificate (an official document that changes a person’s sex for some legal purposes) will exacerbate problems with the existing regime. This was intended to make provision for a tiny number of people with a rare medical condition, not to replace the concept of sex in law with self-declared “gender identity”.

We also welcome the UK government’s recognition that it is not just the strict legal effects of the GRR Bill that matter, but also its potential to cause real-world harm by creating fear and uncertainty well beyond its legal effects.

After the GRR Bill was passed in Holyrood on December 22nd, the UK government had a three-way choice:

1. Do nothing, and allow the bill to go forward for Royal Assent unhindered.
2. Refer the bill to the Supreme Court under Section 33 of the Scotland Act on the basis that it relates to reserved matters (matters on which the Scottish Parliament is not entitled to legislate), or is contrary to the UK’s obligations under the European Convention on Human Rights.
3. Make an order preventing the bill from going for Royal Assent because it contains provisions that will have an adverse effect on the operation of the law as it applies to reserved matters.

The main effect of the GRR Bill is to alter the eligibility requirements for receiving a GRC. Currently these requirements are the same across the UK, and are as set out in the Gender Recognition Act 2004. They include:

•  having received a medical diagnosis of gender dysphoria
• providing evidence of having “lived in the acquired gender” for a minimum of two years
• being at least 18.

The Gender Recognition Reform Bill amends the Gender Recognition Act by:

• removing the requirement to have received a diagnosis of gender dysphoria
• lowering the minimum age from 18 to 16
• reducing the period during which an applicant must have lived in their acquired gender from two years to three months (or six months for applicants aged under 18)
• removing the requirement to provide any evidence (beyond a statutory declaration) of having lived in the acquired gender
• removing the requirement to satisfy a panel that the requirements have been met.

Alister Jack has opted for the less radical option of an order under Section 35. Although this has been described as the “nuclear” option, it really isn’t. In responses to questions in the House of Commons, and in a written statement, the Secretary of State has pointed out that:

• the GRR Bill will create a twin-track system under which UK GRCs have effect UK-wide, but Scottish GRCs have effect only in Scotland
• the impacts of the GRR Bill on the operation of the Equality Act will erode safeguards for women and girls
• the GRR Bill creates a significantly increased scope for fraudulent applications for GRCs.

Administrative upheaval Mr Jack said that the GRR Bill does not (and could not) produce GRCs that have effect other than in Scots law, and warned of the chaos that would result from a system in which a person may be a man in Scotland but a woman in England and Wales, or vice versa. Tax, benefits and state pensions are all managed by integrated UK-wide systems, and the difficulties of devising administrative systems that can cope with people who simultaneously have one sex in one part of the UK and the other in other parts will be immense. Widespread harms Mr Jack argued that the removal of safeguards and consequent expansion of the category of those who can apply for Scottish GRCs will exacerbate problems that already exist under the UK-wide GRC regime, and create new ones. He pointed to particular difficulties created by the Scottish bill for single-sex clubs and associations, which, as he rightly said, can lawfully exclude people on grounds of sex, but not on grounds of “gender reassignment” (one of the protected characteristics in the Equality Act, which applies broadly to people who assert trans identities). The notice uses bland administrative language, speaking of “the effect of its requirements on single-sex associations, who will be required to accept, without discrimination, members from a new, larger and different cohort”. What this means is that the GRR Bill contains nothing that would stop the “new, larger and different cohort” – for example, men who cross-dress for erotic purposes – from demanding access to women-only clubs and associations. The obvious conclusion to be drawn from these effects is that the GRR Bill also engages the Article 11 right to freedom of association. But the Secretary of State did not follow this line of reasoning to its logical conclusion, namely that the bill is incompatible with Convention rights, and therefore with the UK’s obligations under international law. Such reasoning would require a reference under Section 33. But the government is instead taking the less confrontational Section 35 route.

Twin-track system?

The Secretary of State’s reasoning takes as its starting point that Scottish GRCs will not have effect on the rest of the UK. We think that is far from obvious, and may need to be resolved in court in due course, if the GRR Bill becomes law. But we agree that a dual regime is certainly possible – and that it would cause chaos.

What happens next?

The Scottish Government is near certain to seek judicial review of the Order. In theory, that process could go on appeal to the Inner House of the Court of Session (the Scottish equivalent to the Court of Appeal), and then to the Supreme Court. But given the constitutional significance of the questions, it is more likely that it will be referred by the Court of Session directly to the Supreme Court.

We would have preferred to see a direct challenge to the lawfulness of the Bill under Section 33, because we think that it infringes Articles 10 and 11 (and perhaps others) of the European Convention on Human Rights, and makes such more fundamental changes to the operation of the Equality Act that it could properly be said to “relate to” equal opportunities. But we are delighted that the practical consequences of the gender-recognition regime will now receive a full and detailed airing in the Supreme Court.

Maya Forstater, Executive Director of Sex Matters, said: “Blocking the GRR Bill was absolutely the right decision. The process whereby it was passed in Holyrood was deeply troubling. Individuals and groups seeking to provide evidence of its harmful effects on women and children were sidelined; proponents of gender self-identification, which the government in Westminster rejected in 2020 after consulting widely, were listened to uncritically.

“The UK government has a nationwide remit to protect human rights, as well as a duty to stop devolved lawmaking from creating malign cross-border effects. We are delighted that the issues caused by conflating immutable, binary sex with self-declared gender identity will now be considered in court.”

Notes for editors

About Sex Matters

Sex Matters is a human-rights organisation co-founded in 2021 by Maya Forstater, who is its director, to campaign for sex-based rights. It lobbies for clarity on sex in law and

institutions; publishes research, guidance and analysis; supports and mobilises people to speak up; and holds organisations accountable.

The post Sex Matters welcomes UK Government decision to block Scottish Gender Recognition Reform Bill appeared first on Sex Matters.

On 9th January Kemi Badenoch, the Minister for Women and Equalities, announced that the government would be updating its list of approved overseas countries and territories for gender-recognition certificates. She explained:

“There are now some countries and territories on the list who have made changes to their systems since then and would not now be considered to have equivalently rigorous systems. It should not be possible for a person who would not satisfy the criteria to obtain UK legal gender recognition to use the overseas recognition route to obtain a UK Gender Recognition Certificate. This would damage the integrity and credibility of the process of the Gender Recognition Act.”

Stonewall and its allied organisations responded with hyperbole, calling this a “trans travel ban” and saying that the UK was “ending reciprocal recognition of Gender Recognition Certificates”. Stonewall said:

“Trans people from countries like Canada, Australia and New Zealand have had their gender recognition certificates respected by the UK for years. Seeking to end this system is an extraordinary move, not based on evidence or experience, that will effectively serve as a ‘trans travel ban’.”

In a letter that it has already managed to persuade over 9,000 supporters to send to MPs, it says:

“But now the UK Government is seeking to overturn decades of mutual recognition with some of our closest allies, and no longer respect their legal processes of gender recognition. This spiteful action will only affect a tiny number of trans people who have come to make their lives in the UK, but it will have profound negative impacts on them.”

Of course this is no “reciprocal recognition” scheme being abolished, and no impacts at all on people from overseas who already have got UK GRCs via the overseas track.

And Stonewall knows it. As Stonewall Scotland set out clearly enough in its response to the Scottish consultation: 

“At present, those who have obtained gender recognition outwith the United Kingdom must make a further application under the ‘overseas route’ of the 2004 Act if the recognition was obtained in an ‘approved country or territory’, as detailed by the Gender Recognition (Approved Countries and Territories) Order 2011 (S.I. 2011/1630). This system is in place to ensure that trans people from overseas must meet similarly stringent requirements of the 2004 Act to be legally recognised in the United Kingdom.“

As Lord Filkin stated in the House of Lords at the time of the GRA’s enactment: 

 “Clause 21(1) provides that a person will not be regarded as having changed gender solely by virtue of having changed gender under the law of another country or territory. This is necessary because standards for recognition are not uniform throughout the world, and we wish to ensure that the UK grants recognition only to those individuals who have recognition in a country or territory with criteria at least as rigorous as our own.

 “Where other countries’ criteria are as rigorous as our own, people in that position should receive recognition under a simpler process, and this is provided in Clause 1(1)(b). Conversely, if the recognition is from a country or territory with criteria that do not meet our standards, we believe that, to gain recognition in this country, an individual should have to apply in the standard way, with the gender recognition panels scrutinising a full set of evidence.”

The last time the approved countries list was updated was 2011, when the Justice Minister also emphasised that the aim was to provide a streamlined system of gender recognition for people who had undergone overseas gender-recognition processes “equivalent to our own” 

“The intention of the overseas application process is to minimise bureaucracy without compromising the integrity of the criteria set out in the Act. When the Act was passed, Parliament was mindful of the danger of creating a system which might allow transsexual people who could not meet the criteria in the Act to effectively sidestep those criteria. Such people might travel overseas to obtain gender recognition in a country with weaker criteria and then obtain legal recognition in the UK by virtue of that overseas recognition. This would have undermined the robust criteria in the Act agreed by Parliament.”

Stonewall’s letter argues that updating the overseas list in line with the legislation and failing to wave through Scotland’s changes to the Gender Recognition Act is not showing enough “respect for trans people”; “will actively harm the UK’s international reputation as an open, diverse and dynamic society”; and will “threaten relationships” with some of the country’s closest allies.

Anyone who has been subject to a campaign of complaints at work for refusing to toe the Stonewall line will recognise the tone of these arguments.

The UK government should stand up to this bullying and act with responsibility, seriousness and courage to protect the integrity of UK law-making. 

It is absolutely clear (as Michael Foran sets out in a new report for Policy Exchange, and Naomi Cunningham does in Scottish Legal News) that the Gender Recognition Act has both reserved and devolved aspects. Changes that effect the operation of UK-wide laws should be made democratically by Parliament. 

One Scottish politician eloquently made a similar point in 2004, arguing against the GRA: 

 “First, the bill deals with many complex matters of law that are devolved to the Parliament. For example, the bill will create a new ground for divorce under Scots law, which is no small matter. The bill will also have significant implications for the law in Scotland that relates to sexual offences. For that reason, if for no other, the bill requires detailed scrutiny in the Parliament, where responsibility lies.

“… If we agree to the motion and pass legislative responsibility to Westminster, all opportunity for debate and scrutiny in this Parliament will be lost. A debate of 45 minutes in committee and of 20 or 25 minutes in the chamber on a bill that is as complex and important as the Gender Recognition Bill is not enough. The bill merits much greater scrutiny and debate.”

Nicola Sturgeon’s point that there should be detailed scrutiny and democratic debate where responsibility lies is still a good one. Stonewall’s alarmist disinformation is not. 

To counter Stonewall’s scaremongering, use our one-minute tool to email your MP today.

The post Stonewall is scaremongering: write to your MP appeared first on Sex Matters.

There has been quite a bit of legal commentary about using the power of Section 35 of the Scotland Act (read Michael Foran’s and Joshua Rozenberg’s pieces). Scottish Secretary Alister Jack has already said that the UK Government could look to use that power “if necessary”. Section 35 allows the UK government to stop a bill going to royal assent even if it is within the devolved competence of the Scottish Government, on the basis that it would have significant adverse impacts on reserved matters. The Scottish Government would then probably challenge this in the Scottish courts. Whatever the ruling, it might be appealed more than once before ending up in the Supreme Court. 

Before the UK Government goes down this route, a more straightforward question needs answering: is legislating to enable people to change their sex “for all purposes” within the competence of the Scottish Government at all?

If it isn’t, then the government can refer the Bill directly to the Supreme Court. 

We think this is what should happen. 

Sex Matters has published a briefing on our analysis and sent it to Alister Jack and to the Attorney General. 

The Gender Recognition Act

The GRA was enacted after the European Court of Human Rights (ECHR) case of Christine Goodwin v UK [2002], in which the UK was found to have breached Article 8 and Article 12 of the European Convention on Human Rights (the right to respect for private life and the right to marry) in relation to post-operative transsexuals. The explicit intention at the time was to remedy these breaches for a specific and very small group of people who had taken steps to try to keep their sex private by undertaking a transition under medical supervision: 

“Many transsexual people want to keep their past life in their birth gender private, and object to having to produce a birth certificate in their former name and gender. They want to be recognised legally in their new gender – for example, for State pension purposes; to enjoy, so far as possible, privacy and protection from identification in their original gender; and some wish to marry in the acquired gender. It is these rights, currently unavailable to transsexual people in the United Kingdom, which the Government’s proposals will address.”

Trans-rights activists may regard this as old-fashioned. But a recent judicial review in Northern Ireland has confirmed that the UK’s regime remains compliant with human-rights commitments in relation to transsexuals: 

“Parliament’s determination that an applicant for a gender recognition certificate must provide a report with specialist medical input in support of their application strikes a fair balance between [the applicant’s] interests and those of the community having regard to the discretionary area of judgement available to Parliament on this issue and the aims which the requirement is designed to pursue.”

The EHRC has consistently said that the existing legal framework is compliant with international human-rights law:

“The established legal concept of sex, together with the existing protections from gender reassignment discrimination for trans people and the ability for them to obtain legal recognition of their acquired gender, collectively provided the correct balanced legal framework that protects.”

The GRR (Scotland) Bill upsets the careful balance of the GRA by repealing and replacing the criteria for issuing a GRC for applicants in Scotland and expecting the rest of the UK to accept these new certificates “for all purposes”. The group covered by the new criteria is much larger than those eligible for the original GRA, with vague and easy-to-satisfy conditions for inclusion. Children aged 16 and above will also be eligible, meaning that schools will be affected. 

Cabinet Secretary Shona Robison stated: “The requirement is not about looking or dressing a certain way but about the ways in which a person may demonstrate their lived gender to others.” Examples given include using different pronouns. 

Section 33: is the GRR Bill within competence?

It is often stated that gender recognition is devolved. This is not accurate. Rather, the GRA 2004 has both devolved and reserved aspects. 

In order to avoid the UK Parliament trampling on devolved matters, the two parliaments use a mechanism called a “Sewel motion”. When the GRA was passed, it was extended to Scotland by a Sewel motion to cover the devolved aspects. The Scottish Executive promoted this UK-wide approach to legislating, arguing that: 

“The legal recognition of transsexual people combines reserved and devolved policy areas. The devolved areas include process issues particularly the creation and maintenance of a Gender Recognition Register and the provision of birth certificates reflecting the acquired gender of a transsexual person, and the right to marry in the acquired gender. Some of the legal consequences are reserved particularly pensions, benefits and insurance consequences. The Scottish Parliament could provide partial legal recognition of a transsexual person’s acquired gender but not the reserved policy aspects.”

The reasons a bill may be outside competence are found at Section 29(2) of the Scotland Act. These include: if a bill would form part of the law of other countries; if it relates to reserved matters; or if it is incompatible with human rights. We think the GRR Bill should be challenged on each of these grounds. 

Part of the law of other countries

• For all purposes? If the GRR Bill works as it says on its face to allow people to change their legal status “for all purposes”, this would include for the purpose of birth certificates, marriage, divorce, annulment and death certificates in England, Wales and Northern Ireland, and for reserved matters such as pensions and the Equality Act. The Gender Recognition Reform Bill either makes an empty and confusing promise to change sex “for all purposes” or is legislating outside its competence. 
• Changing birth certificates? When the bill was introduced, it went as far as telling the Registrar General for Scotland to send copies of GRCs issued under the Scottish system to people born elsewhere in the UK to the other registrars. The day before the final vote, the Scottish government introduced an amendment to remove this provision, saying it was for the UK government to decide whether to “update birth certificates”. However, removing this administrative step still leaves holders of Scottish GRCs in limbo, and does not answer why the UK Parliament would decide to legislate to change a person’s birth records in England, Wales and Northern Ireland (or to allow their entry in the death register to record the wrong sex) if they do not hold a certificate that changes their sex “for all purposes” under UK legislation. 
• Gretna Green annulments? One effect of an interim GRC is that it allows a marriage to be annulled in England, Wales or Northern Ireland at the request of either party. Where a marriage is annulled it is treated in law as if it never happened, and in some circumstances the father loses paternity.* Any measure that makes it this easy to annul a marriage and remove paternity is unprecedented and should be debated by Parliament, and is likely to be challenged on human-rights grounds.

Relating to reserved matters

• Pensions, tax and benefit record chaos. When a person gets a GRC under the UK system, their sex is changed for the purposes of tax and benefit records. For legal reasons, HMRC and the DWP cannot amend records with a change of sex without sight of a full gender-recognition certificate or notification from the Gender Recognition Panel. Once HMRC has confirmed a change of legal sex, a person’s employer must update its records relating to PAYE and national-insurance contributions. All this is reserved. 
• Equality law is reserved. The Scottish Government said that the general aim of the bill is “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.” It links it to the National Performance Framework which relates to equality law. Victor Madrigal Borloz from the UN also linked legal recognition legislation to securing “equal access to services and the full enjoyment of their human rights”. However legislation to secure equal opportunities is reserved. Although the GRR Bill does not change the face of the Equality Act, it seeks for Scottish GRCs to have the same effect as UK ones. 

Incompatible with Convention rights 

If legislation is not compatible with Convention rights, it is outside the Scottish Parliament’s competence to make it. The GRA was originally developed to protect information privacy for an extremely limited group of people. Any detriments to other people’s rights, such as freedom of expression and belief, personal privacy and freedom from humiliating treatment, were therefore thought to be limited, and capable of being justified or mitigated.

But any justification for legislation that is made on the basis of maintaining privacy depends on it being possible to keep the information that is to be protected private in the first place.

There is no expectation that the much larger and more heterogeneous group eligible for Scottish GRCs plausibly able to keep their sex private, or indeed even trying to do so (the sorts of steps required are arduous, and anyone who has taken them would most likely fulfil the criteria for the GRA 2004). In fact, most are “out and proud” about being transgender. And there are no safeguards to exclude males for whom cross-dressing is an erotic fixation or fetish. The original legislation was specifically framed to exclude such people from getting a GRC. 

It is essential to be able to correctly record and respond to people’s sex in situations where sex matters, and to gate-keep access to services and spaces, in order to operate single-sex spaces and services. These in turn are essential to protect people from being forced to undress  or share intimate spaces such as in hospital wards, night shelters and prisons with members of the opposite sex, or undergo intimate medical examinations and police searching by members of the opposite sex. It is impossible to guarantee protection against such inhumane treatment if  people’s ability to recognise and talk about male and female bodies is replaced with a legally backed assertion that “trans women are women”. 

The need for coherent legislation

After the Supreme Court delivers a ruling, the Secretary of State has four weeks in which to make an order under Section 35, considering the aspects of the legislation which are within competence.

Even a Scottish GRC system which is effective only for devolved purposes will have adverse effects on human rights, and on policy coherence across the UK (including in Scotland). The incoherence will be felt in areas ranging from the operation of the GRA itself to personal identity credentials (including for financial regulation and anti-money-laundering), employment records and the operation of single- and separate-sex services. 

As the Government successfully argued in the Supreme Court in the “X Passports” case, the need for a coherent system for the recognition of sex is a legitimate aim. It is not merely an administrative convenience, but underpins the ability of the state to protect human rights by acting in a manner that is foreseeable and consistent. There are several areas where the incoherence will be intolerable. We highlight three.

• Employment: There will be a mismatch between unchanged legal sex for the purposes of pensions and national insurance, which are reserved, and the wide protections against information disclosure under Section 22 of the GRA, which will still apply (at least in Scotland) to employers, HMRC and DWP. Moreover, employers will have the pointless and expensive task of treating the sex of any employee with a Scottish GRC as protected information in order to avoid their staff risking criminal penalties, at the same time as using that employee’s sex for ordinary tax records. 
• Equality: The bill will have an adverse effect on the operation of the Equality Act 2010, even if it does not directly apply to it. It will increase confusion on the part of both service-providers and users regarding whether a service may, by law, operate on a single-sex basis. This confusion will be compounded by the way that it will extend the protected-information regime to people whose biological sex is obvious. 
• Education: Adverse effects in relation to schools and students will be particularly acute, affecting both Scotland and the rest of the UK. Integrating children into school life while lying about their sex has major implications for safeguarding, and for the rights of other children. 

* This section has been amended following comments 06/03/2022

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The vote comes barely a week after the Court of Session ruled that obtaining a GRC under the existing Gender Recognition Act changes a person’s sex for the purposes of the equality law (indeed the GRA 2004 changes the definition of sex entirely, removing biology from the law). Equality law is a reserved matter for UK-wide legislation.

154 amendments to get through

A total of 154 amendments have been tabled for the third-stage debate on the Gender Recognition Reform Bill (Scotland). MSPs will begin the race to get through them some time after 2pm today, and the official estimate is that they can complete it this task in just nine hours and 15 minutes before proceeding to vote on the final version tomorrow.

The amendments include attempts to introduce safeguards and impact assessment in several areas :

• Group 1: a set of amendments on applications by 16- and 17-year-olds 
• Group 2: safeguards concerning people with criminal convictions
• Group 4: safeguards concerning medical evidence and time living in the acquired gender
• Group 7: safeguards concerning the statutory declaration and identity documents
• Group 8: safeguards concerning background (criminal record) checks
• Group 9: safeguards concerning people with impaired capacity
• Group 13: interaction with the Equality Act
• Group 15: provisions for review of the Act
• Group 16: provisions for reporting on the operation and impact of the Act
• Group 17: provisions on gender identity healthcare
• Group 18: provision on reporting on the number of GRCs issued
• Group 19: provisions on wider data collection.

Stonewall says get on with it: oppose nearly all the amendments

The Trans Equality Network and Stonewall have given MSPs clear instructions on which changes to support and which to oppose, in order to rattle through the amendments. Their recommendations are summarised here:

In short, they say to oppose almost all amendments concerning safeguards, review and reporting on the Act.

Legal uncertainty about the Equality Act

The amendments on the Equality Act are being debated in a the context of extreme uncertainty. It is not known whether Scottish GRCs will be accepted by the UK government, and no time has been allowed to take stock of last week’s Outer House ruling.

It is not known whether that ruling will be appealed, or whether the UK government will take action to clarify the relationship between the GRA and Equality Act. Our petition on this is closing in on 50,000 signatures, and the Prime Minister has previously indicated his willingness to ensure such clarification.

Campaign group For Women Scotland says:

Any MSP who can lay claim to how the provisions of the Equality Act can be applied to protect biological women, either currently, or if the Gender Recognition Reform (GRR) Bill is passed, is either dishonest or sadly mistaken.

It argues that the only way to protect single-sex services is to vote for an amendment that states a GRC issued under the GRR Bill does not change a person’s sex under the Equality Act, and points out that none of the amendments put forward will achieve this.

Constitutional risk

The uncertain boundary between the Equality Act 2010 and the Gender Recognition Act 2004 means that the legislation is treading a tightrope to avoid legislating in areas outside of the Scottish Government’s competence.

Holyrood Daily’s Mandy Rhodes yesterday reported that Shona Robison, SNP Cabinet Minister and stanch proponent of self-ID, had been phoning rebel SNP MSPs, and published an extract of a letter warning that if certain GRR amendments are passed, it risks the bill being legally incompetent and that the Scottish Government “would have no option” but to move to delay.

Still work to be done on women’s rights

Last night, in an emergency session, two UN Special Rapporteurs addressed the Equalities, Human Rights and Civil Justice Committee and gave contrasting views on the implications of the proposed reforms. The inputs by the two UN experts reflected the different positions and interests on the issue.

Reem Alsalem, the Special Rapporteur on violence against women, its causes and consequences, emphasised the need for safeguards and the lack of consideration of impacts on women and girls. She noted that a recent opinion poll found that two-thirds of Scottish voters are against the legislation. And she emphasised the prevalence and fear of voyeurism, flashing, and sexual assault, and the need for privacy, dignity and inclusion of women.

She concluded:

If after six years there is still this level of polarisation, and feelings of exclusion of their point of view, this is a reasonably good sign that there is still work to be done.

Uncertainty about international obligations

By contrast the other special rapporteur to address MSPs, Victor Madrigal-Borloz, the UN Independent Expert on Sexual Orientation and Gender Identity, spoke of “horrifyingly stigmatising language” being used in the debate, such as referring to “men in dresses”.

Madrigal-Berloz has written to the Scottish Government arguing that state parties have legal obligations to enact legal sex change via self-identification (we disagree).

The EHRC yesterday responded saying it is questioning the UN expert’s interpretation and raising this in correspondence with the Scottish Human Rights Commission. It says:

The differing perspectives offered by UN Special Rapporteurs demonstrate again that this is a complex area of public policy and debate that is continuing to evolve, and underline the need for detailed and robust parliamentary scrutiny of the implications of reforms for trans people, women and girls, religious groups, and others before they proceed.

Removing trans people’s human rights?

A briefing on Stage 3 of the bill by analysts MurrayBlackburnMackenzie (MBM) highlights another central problem with the Bill: it appears to remove Scots’ current access to the UK GRA system. This, they say, would leave a person born in England or Wales and now living in Scotland with no way to obtain a changed birth certificate, and would remove any means for a person in Scotland to obtain UK-wide gender recognition.

They say MSPs should clarify if this is its effect.

MBM concludes:

Thanks to the recent court case, on 21 December as MSPs you will be faced with a clear choice: to make the legal status of being a woman under the Equality Act available to anyone aged 16 or over, based on no more than a bureaucratic process of self-declaration, undermining protections for women in that Act; or to refuse to agree that and insist on being presented instead with a Bill that balances properly the interests of different groups, and does not further erode the rights of women and girls in Scotland.

This may not be the choice you want. But after years of an unusually poor policy process, insincere consultations, clearly deliberate evasion on a key point, and a wasted opportunity to improve the law at earlier parliamentary stages, it is the only one now available.

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